State Rep. By vs G.Jayaraman on 23 October, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 23.10.2017

CORAM

THE HONOURABLE MR. JUSTICE M.DHANDAPANI

Crl.O.P.(MD)Nos.12216 of 2010 and
12244 of 2010
and
M.P.(MD)Nos.1 and 1 of 2010

State Rep. by
The Sub-Inspector of Police,
CCIW CID,
Trichy.
[Crime No.7 of 1997] … Petitioner
in
both the Crl.O.Ps.
vs
Vs.
G.Jayaraman … Respondent

in both the Crl.O.Ps.

PRAYER: Criminal Original Petitions filed under Section 482 of the Code of
Criminal Procedure, to set aside the order of Discharge, dated 01.03.2010,
passed in Crl.R.C.Nos.36 and 37 of 2003 by the learned Additional District
and Sessions Judge, Fast Track Court, Pudukottai, confirming the order dated
13.05.2002, passed in C.M.P.Nos.903 of 2001 and 424 of 2002 by the learned
Judicial Magistrate, Pudukottai.

!For Petitioner : Mr.K.Anbarasan
(in both the Crl.O.Ps.) Government Advocate
(Criminal side)

^For Respondent : Mr.T.Senthilkumar
(in both the Crl.O.Ps.)

:COMMON ORDER

These Criminal Original Petitions have been filed to set aside the
order of Discharge, dated 01.03.2010, passed in Crl.R.C.Nos.36 and 37 of 2003
by the learned Additional District and Sessions Judge, Fast Track Court,
Pudukottai, confirming the order dated 13.05.2002, passed in C.M.P.Nos.903 of
2001 and 424 of 2002, by the learned Judicial Magistrate, Pudukottai.

2.The respondent/Accused No.1 was working as a Secretary at 174,
Keeranur Agricultural Products Producers Co-operative Sale Society from
01.06.1978 to 08.11.1995. While the respondent was working as Secretary of
the abovesaid Society, by using his official capacity, he misappropriated
Rs.2,65,380.50 and Rs.54,050/- worth of Government properties entrusted to
him. After noticing the said misappropriation, the competent authority filed
a complaint before the petitioner/police for taking appropriate action
against the accused persons. Accordingly, the petitioner registered the
complaint against the accused persons. After conducting investigation, the
petitioner filed charge sheets before the Judicial Magistrate Court,
Pudukottai, which were taken on file in C.C.Nos.755 and 756 of 2000, against
which, on 09.03.2001, the respondent filed Discharge Petitions in
C.M.P.Nos.903 of 2001 and 424 of 2002. After elaborate discussions, the
trial Court allowed the said petitions filed under Section 239 Cr.P.C., on
13.05.2002 and discharged the respondent/accused from the charges punishable
under Sections 409 and 477(A) I.P.C.

3.Aggrieved by the same, the petitioner filed Revision Petitions in
Crl.R.C.Nos.36 and 37 of 2003 before the learned Additional District and
Sessions Judge, Fast Track Court, Pudukottai. The learned Additional
District and Sessions Judge, Fast Track Court, Pudukottai, allowed the said
Revision Petitions on 20.06.2005, against which, the respondent filed
Revision Petitions in Crl.R.C.Nos.125 and 124 of 2006 before this Court.
This Court, vide order dated 26.09.2007, allowed the Criminal Revision
Petitions filed by the respondent and set aside the order passed by the
learned appellate Judge in Crl.R.C.Nos.36 and 37 of 2003 and remanded the
Revisions to the lower appellate Court with a direction to the lower
appellate Court to consider the materials available on record and pass
appropriate orders in accordance with law. Thereafter, on 01.03.2010, the
learned Additional District and Sessions Judge, Fast Track Court, Pudukottai,
confirmed the order dated 13.05.2002, passed in C.M.P.Nos.903 of 2001 and 424
of 2002 in C.C.Nos.755 and 756 of 2000 by the learned Judicial Magistrate,
Pudukottai and allowed the discharge petitions filed by the respondent.

4.Aggrieved over the same, the petitioner has come out with the present
Criminal Original Petitions invoking the inherent jurisdiction of this Court
under Section 482 of Cr.P.C.

5.The learned Government Advocate (Criminal side) appearing for the
petitioner/Police submitted that the trial Court ought not to have discharged
the respondent/accused, who has committed criminal breach of trust and
misappropriated Rs.2,65,380.50 and Rs.54,050/-, being public monies of the
Keeranur Agricultural Products Producers Co-operative Sales Society. The
learned Government Advocate (Criminal side) submitted that the trial Court
failed to note the enquiry report filed by the Enquiry Officer in Page Nos.5
and 7 that the respondent/accused is having the key of the Godown and he is
having responsibilities jointly and severally along with the Godown Keeper
for the stock deficit. He submitted that the trial Court failed to take into
consideration that the respondent/accused had signed in the Stock Register
and Cash Book as though it has been verified and found to be correct, which
itself automatically prove that the respondent/accused had knowledge over the
commission of the offence. He further submitted that the trial Court
highlighted only the statements of P.W.4 and P.W.6, which were recorded under
Section 161(3) Cr.P.C., but, it has failed to note that Witness No.3, who had
spoken about the duties and responsibilities of the Secretary and also 45
documents and 14 witnesses’ statements, minute books, bye-laws, stock and
cash registers, which are all materials to prove the entrustment and domain
of the Secretary and he is the public servant of the Society. He further
submitted that the trial Court failed to consider that not only the
entrustment, but also the Secretary has got a liability to account for the
goods of the Society and his failure to do so, constituted the offences under
Sections 409 and 477(A) I.P.C. He also submitted that in view of the above
said facts, prima facie case has been made out against the respondent/accused
and there are materials available to frame charges under Sections 409 and
477(A) I.P.C. against the respondent/accused. Hence, the State is invoking
inherent jurisdiction available under Section 482 Cr.P.C. and requesting this
Court to interfere with the order passed by the Courts below and prayed for
allowing the Criminal Original Petitions.

6.Per contra, the learned counsel for the respondent submitted that the
charges levelled against the respondent is baseless and the ingredients of
Sections 409 and 477(A) I.P.C. are not made out against the respondent and
there is no specific overt act has been attributed against him. He submitted
that Witness No.4, who is a Special Officer of the Society, is responsible
for the liability and he has not stated that the respondent is having
personal liability or joint liability of the Government property with regard
to entrustment. He further submitted that the Special Officers are the
‘Kartha’ of the Society and there is no prima facie case has been made out
for entrustment of the property to the respondent. He further submitted that
the respondent is the Secretary of the Society and he is duty bound to
arrange the lorry for PDS and supervision of the work and he is not liable
for other omissions and commissions and there is no presumptive evidence
against the respondent/accused and there is no evidence to show that the
Government property is entrusted to the respondent and he has converted the
same for his own use. He also submitted that the second revision by invoking
inherent jurisdiction available under Section 482 Cr.P.C., is bad in law in
view of the judgments rendered by the Hon’ble Apex Court as well as by this
Court.

7.In support of his submissions, the learned counsel for the respondent
relied on the following Judgments:

(a) Rajan Kumar Machananda Vs. State of Karnataka reported in 1990 SCC
(Cri) 537, wherein at paragraph 2, it has been held as follows:

”2.Heard learned Counsel for the parties. The respondent- State had
challenged the order before the Court of Sessions when the learned Magistrate
before whom the matter was proceeding directed release of the truck in favour
of the appellant. The Revisional Court dismissed the petition of the State. A
second Revision did not lie at the instance of the State to the High Court in
view of the provisions of Section 397(3) of Cr.P.C. Obviously, to avoid this
bar, the application moved by the State before the High Court was stated to
be under Section 482 Cr.P.C. asking for exercise of inherent powers. In
exercise of that power, the High Court has reversed the order of the
Magistrate as affirmed by the Sessions Judge. The question for consideration
is as to whether the bar under Section 397(3) Cr.P.C. should have been taken
note of to reject the revision at the instance of the State Government or
action taken by the High Court in exercise of its inherent power has to be
sustained. It is not disputed by counsel appearing for the State that the
move before the High Court was really on application for revision of the
order of the Magistrate releasing the truck. That is exactly what is
prohibited under Section 397(3) Cr.P.C. Merely by saying that the
jurisdiction of the High Court for exercise of its inherent power was being
invoked the statutory bar could not have been overcome. If that was to be
permitted every revision application facing the bar of Section 397(3) of the
Code could be labelled as one under Section 482. We are satisfied that this
is a case where the High Court had no jurisdiction to entertain the revision.
The appeal is allowed and we set aside the order of the High Court. The Order
of the Magistrate as affirmed by the Session Judge is upheld.”

(b) Rajathi Vs. C.Ganesan reported in 1999 SCC (Cri) 1118, wherein at
paragraphs 9 to 13, it has been held as follows:

”9.We are not going into the question if the High Court on examining
the case on merit was correct in coming to the conclusion that the wife was
possessed of sufficient means and was able to maintain herself. In the
present appeal, we are only concerned to see if the High Court was justified
in invoking its inherent powers under Section 482 of the Code and we do not
think the High Court was right.

10.In Krishnan Anr. vs. Krishnaveni Anr. [(1997) 4 SCC 241] this
Court explained the scope and power of the High Court under Section 482 of
the Code. The question before the Court was if in view of the bar of second
revision under sub-section (3) of Section 397 of the Code was prohibited,
inherent power of the High Court is still available under Section 482 of the
Code. This Court said as under [SCC P.248, Para 10]:

“10.Ordinarily, when revision has been barred by Section 397(3) of the Code,
a person – accused/complainant – cannot be allowed to take recourse to the
revision to the High Court under Section 397(1) or under inherent powers of
the High Court under Section 482 of the Code since it may amount to
circumvention of the provisions of Section 397(3) or Section 397(2) of the
Code. It is seen that the High Court has suo motu power under Section 401 and
continuous supervisory jurisdiction under Section 483 of the Code. So, when
the High Court on examination of the record finds that there is grave
miscarriage of justice or abuse of the process of the courts or the required
statutory procedure has not been complied with or there is failure of justice
or order passed or sentence imposed by the Magistrate requires correction, it
is but the duty of the High Court to have it corrected at the inception lest
grave miscarriage of justice would ensue. It is, therefore, to meet the ends
of justice or to prevent abuse of the process that the High Court is
preserved with inherent power and would be justified, under such
circumstances, to exercise the inherent power and in an appropriate case even
revisional power under Section 397(1) read with Section 401 of the Code. As
stated earlier, it may be exercised sparingly so as to avoid needless
multiplicity of procedure, unnecessary delay in trial and protraction of
proceedings. The object of criminal trial is to render public justice, to
punish the criminal and to see that the trial is concluded expeditiously
before the memory of the witness fades out. The recent trend is to delay the
trial and threaten the witness or to win over the witness by promise or
inducement. These malpractices need to be curbed and public justice can be
ensured only when trial is conducted expeditiously.”

11.In the present case, the High Court minutely examined the evidence
and came to the conclusion that the wife was living separately without any
reasonable cause and that she was able to maintain herself. All this High
Court did in exercise of its powers under Section 482 of the Code which
powers are not a substitute for a second revision under sub-section (3) of
Section 397 of the Code. The very fact that the inherent powers conferred on
the High Court are vast would mean that these are circumscribed and could be
invoked only on certain set principles.

12.It was not necessary for the High Court to examine the whole
evidence threadbare to exercise jurisdiction under Section 482 of the Code.
Rather in a case under Section 125 of the Code the trial court is to take a
prima facie view of the matter and it is not necessary for the court to go
into the matrimonial disputes between the parties in detail. The section
provides maintenance at the rate of Rs.500/- per month. There is an outcry
that this amount is too small. In the present case, however, we are quite
surprised that the court granted paltry amount of Rs.200/- per month as
maintenance which was confirmed in the revision by the Sessions Court and the
High Court thought it fit to interfere under Section 482 of the Code in
exercise of its inherent jurisdiction.

13.Whatever may be the merit of the case, the High Court wrongly
exercised its jurisdiction under Section 482 of the Code in passing the
impugned order. The appeal is allowed and the impugned order dated 04.12.1997
of the High Court is set aside.”

(c) Kailash Verma Vs. Punjab State Civil Supplies Corporation and
another reported in 2005 SCC (Cri) 538, wherein at paragraphs 5 to 7, it has
been held as follows:

”5.It may also be noticed that this Court in Rajathi v. C. Ganesan
[1999 (6) SCC 326] said that the power under Section 482 of the Criminal
Procedure Code has to be exercised sparingly and such power shall not be
utilized as a substitute for second Revision. Ordinarily, when a Revision has
been barred under Section 397(3) of the Code, the complainant or the accused
cannot be allowed to take recourse to Revision before the High Court under
Section 397(1) of the Criminal Procedure Code as it is prohibited under
Section 397(3) thereof. However, the High Court can entertain a petition
under Section 482 of the Criminal Procedure Code when there is serious
miscarriage of justice and abuse of the process of the court or when
mandatory provisions of law are not complied with and when the High Court
feels that the inherent jurisdiction is to be exercised to correct the
mistake committed by the revisional court.

6.In State Vs. Navjot Sandhu [2003 (6) SCC 641], the power of the High
Court under Section 482 came up for consideration and it was held as
under:[SCC P.657, Para 29]
“29.Section 482 of the Criminal Procedure Code starts with the words ‘Nothing
in this Code.’ Thus the inherent jurisdiction of the High Court under Section
482 of the Criminal Procedure Code can be exercised even when there is a bar
under Section 397 or some other provisions of the Criminal Procedure Code.
However, as is set out in Satya Narayan Sharma’s case [2001 (8) SCC 607];
this power cannot be exercised if there is a statutory bar in some other
enactment. If the order assailed is purely of an interlocutory character,
which could be corrected in exercise of revisional powers or appellate powers
the High Court must refuse to exercise its inherent power. The inherent power
is to be used only in cases where there is an abuse of the process of the
court or where interference is absolutely necessary for securing the ends of
justice.”

7.In the present case, the appellant was discharged by the Chief
Judicial Magistrate and the revisional court confirmed that order after
elaborately considering the facts and circumstances of the case. It may also
be noted that in Bai Kishan Das v. P.C. Nayar [1991 Supp. (2) SCC 412], under
similar facts and circumstances, this Court held that no offences were made
out under Section 406 IPC as it was a matter of civil nature. The respondent-
corporation had also initiated steps for arbitration proceedings on the basis
of the arbitration clause in the agreement. In our view, the High Court was
not justified in exercising its inherent power under Section 482 of the
Criminal Procedure Code in this case. It cannot be said either that there was
miscarriage of justice warranting interference by the High Court. Hence, we
allow these appeals and set aside the judgment of the High Court. The order
of discharge passed by the learned Magistrate in favour of the appellant is
affirmed.”

8.The learned counsel for the respondent citing the decisions as stated
above submitted that apart from the above decisions, the trial Court after
discussing the cases elaborately based on the materials available on record,
allowed discharge petitions filed by the respondent herein and the same was
also confirmed by the lower appellate Court. Challenging the concurrent
findings of the Courts below, the petitioner has approached this Court
invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C.,
which is bad in law. Hence, he prayed for dismissal of both the Criminal
Original Petitions.

9.I have considered the decisions cited supra and the rival submissions
made by the learned counsel on either side and perused the materials
available on record.

10.The issue involved in these cases is whether the petition under
Section 482 Cr.P.C., is maintainable in view of bar under Section 397(3)
Cr.P.C.

11.As per Section 397(3) Cr.P.C., if an application under this Section
has been made by any person either to the High Court or to the Sessions
Judge, no further application by the same person shall be entertained by the
other of them. In this context, it is relevant to extract below Section 397
(1) and (3) Cr.P.C.

”397.Calling for records to exercise powers of revision.- (1) The High
Court or any Sessions Judge may call for and examine the record of any
proceeding before any inferior Criminal Court situate within its or his local
jurisdiction for the purpose of satisfying itself or himself as to the
correctness, legality or propriety of any finding. Sentence or order,
recorded or passed, and as to the regularity of any proceedings of such
inferior Court, and may, when calling for such record, direct that the
execution of any sentence or order be suspended, and if the accused is in
confinement, that he be released on bail or on his own bond pending the
examination of the record.

Explanation.- All Magistrates, whether Executive or Judicial, and
whether exercising original or appellate jurisdiction, shall be deemed to be
inferior to the Sessions Judge for the purposes of this sub-section and of
section 398.

(3) If an application under this section has been made by any person
either to the High Court or to the Sessions Judge, no further application by
the same person shall be entertained by the other of them.”

12.Accordingly, the petitioner filed revisions before the Additional
District and Sessions Court, Pudukottai and the same were taken on file and
the lower appellate Court confirmed the order of discharge passed by the
learned Judicial Magistrate, Pudukottai. In view of bar under Section 397(3)
Cr.P.C., further revision is not permissible and the same cannot be
entertained by any forum. The said position was also discussed by the
Hon’ble Apex Court in the case of Krishnan Vs. Krishnaveni reported in 1997
(4) SCC 241, wherein the Apex Court has clearly held that in view of the
prohibition under Section 397(3) Cr.P.C., the complainant or the accused
cannot be allowed to take recourse to a second revision, but the High Court
can entertain a petition under Section 482 Cr.P.C. when there is serious
miscarriage of justice and abuse of process of the Court or when mandatory
provisions of law are not complied with and when the High Court feels that
the inherent jurisdiction is to be exercised to correct the mistake committed
by the revisional Court.

13.In one of the earlier cases in R.P.Kapur Vs. State of Punjab [AIR
1960 SC 866], the Hon’ble Apex Court had summarised some of the categories of
cases where the inherent power under Section 482 of the Code could be
exercised by the High Court to quash criminal proceedings against the
accused. These are: [AIR P.869, Para 6]

(i) where it manifestly appears that there is a legal bar against the
institution or continuance of the proceedings e.g. want of sanction;

(ii) where the allegations in the first information report or the
complaint taken at their face value and accepted in their entirety do not
constitute the offence alleged;

(iii) where the allegations constitute an offence, but there is no
legal evidence adduced or the evidence adduced clearly or manifestly fails to
prove the charge.

14.In Dinesh Dutt Joshi Vs. State of Rajasthan and Another [2001 (8)
SCC 570], while dealing with the inherent powers of the High Court, the
Hon’ble Apex Court has observed thus: (SCC p. 573, para 6)
“6. … The principle embodied in the section is based upon the maxim:
quando lex aliquid alicui concedit, concedere videtur et id sine quo res
ipsae esse non potest i.e. when the law gives anything to anyone, it gives
also all those things without which the thing itself would be unavailable.
The section does not confer any new power, but only declares that the High
Court possesses inherent powers for the purposes specified in the section. As
lacunae are sometimes found in procedural law, the section has been embodied
to cover such lacunae wherever they are discovered. The use of extraordinary
powers conferred upon the High Court under this section are however required
to be reserved, as far as possible, for extraordinary cases.”

15.The learned counsel for the respondent submitted that second
revision before the High Court is not maintainable and the further revision
against the dismissal order passed by the revisional Court is barred under
Section 397(3) Cr.P.C. By invoking inherent power available under Section
482 Cr.P.C., this Court cannot be converted as second revisional Court.

16.Per contra, the learned Government Advocate (Criminal side)
appearing for the petitioner submitted that though there is a bar under
Section 397(3) Cr.P.C., for entertaining second revision, if the revisional
Court commits a serious error or miscarriage of justice, this Court has power
to interfere with the order of the trial Court as well as the order of the
lower appellate Court by invoking inherent jurisdiction available under
Section 482 Cr.P.C. and he relied on the decision of the Hon’ble Apex Court
in the case of Krishnan Vs. Krishnaveni [cited supra].

17.It is true that in the abovesaid decision, the Hon’ble Apex Court
has clearly held that in view of the prohibition under Section 397(3)
Cr.P.C., the complainant or the accused cannot be allowed to take recourse to
a second revision, however, this Court holds that the said provision is not
absolute bar, the High Court can entertain a petition under Section 482
Cr.P.C. when there is serious miscarriage of justice and abuse of process of
the Court or when mandatory provisions of law are not complied with. If the
High Court feels that the inherent jurisdiction is to be exercised there is
grave miscarriage of justice, abuse of process of the Court or the order of
the trial Court as well as the lower appellate Court is a perverse or
incorrigible one.

18.However, in the present cases on hand, the petitioner did not show
that there is serious miscarriage of justice and abuse of process of the
Court or mandatory provisions of law are not complied with. Therefore, the
petitioner cannot be allowed to take recourse to second revision.

19.In view of the above discussions and decisions cited supra, this
Court does not find any error or infirmity to interfere with the order passed
by the Courts below. Accordingly, both the Criminal Original Petitions filed
under Section 482 Cr.P.C., are dismissed and the orders of Discharge, dated
01.03.2010, passed in Crl.R.C.Nos.36 and 37 of 2003 by the learned Additional
District and Sessions Judge, Fast Track Court, Pudukottai, confirming the
order dated 13.05.2002, passed in C.M.P.Nos.903 of 2001 and 424 of 2002, by
the learned Judicial Magistrate, Pudukottai, are confirmed. Consequently,
connected miscellaneous petitions are closed.

To

1.The Additional District and Sessions Judge,
Fast Track Court,
Pudukottai.

2.The Judicial Magistrate,
Pudukottai.

3.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

.

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