Raju and ors. Etc. Vs. State of Rajasthan - Court Judgment

Excerpt:
penal code - section 286 and criminal procedure code--sections 397 and 482--forfeiture of tractors and compressors not ordered by lower court--explosives in tractors without knowledge or consent of owners--held, it would be miscarriage of justice and abuse of process of court if tractors and compressors are not handed over to them during investigation and trial.;in case, the courts below do not order forfeiture of the tractors and compressors and it is found that transport of explosives in the tractors was without knowledge or consent of respective registered owners, it would be difficult to recompense them for the loss of use of their vehicles and equipment. in my opinion this would cause serious miscarriage of justice and to prevent abuse of the process of law and to secure justice to.....orderr.s. verma, j.1. these two petitions under section 482, cr.p.c. raise identical questions of law and facts. hence, they have been heard together and are being finally disposed of at the admission stage itself by common consent.2. in s. b. criminal misc. petition no. 228 of 1991 petitioners raju and others are the registered owners of tractor no. hmt 3511 and they also own the compressor attached with this tractor. in s. b criminal misc. petition no. 232 of 1991 petitioner bhanwar singh is the registered owner of tractor rne 8914. he also owns the compressor attached to this tractor. on 24-4-1991 both these tractors were found carrying explosives without any licence and hence were seized by shri mahendra singh, deputy superintendent of police, shahpura. at the time of seizures tractor.....

Judgment:
ORDER

R.S. Verma, J.

1. These two petitions Under Section 482, Cr.P.C. raise identical questions of law and facts. Hence, they have been heard together and are being finally disposed of at the admission stage itself by common consent.

2. In S. B. Criminal Misc. Petition No. 228 of 1991 petitioners Raju and others are the registered owners of tractor No. HMT 3511 and they also own the compressor attached with this tractor. In S. B Criminal Misc. Petition No. 232 of 1991 petitioner Bhanwar Singh is the registered owner of Tractor RNE 8914. He also owns the compressor attached to this tractor. On 24-4-1991 both these tractors were found carrying explosives without any licence and hence were seized by Shri Mahendra Singh, Deputy Superintendent of Police, Shahpura. At the time of seizures Tractor HMT 3511 was found in possession of Ramlal s/o Raju and Kalu s/ o Kana, while Tractor RNE 8914 was found in possession of one Mukut Singh, who is real brother of Bhanwar Singh. In connection with tractor No. HMT 3511, which did not bear any number plate a case Under Section 286 I.P.C. and Sections 5/9 Explosives Act was registered at P. S., Jahazpur, bearing C.R. No. 69 of 1991 of that Police station. In connection with tractor No. RNE 8914, a similar case under similar sections was registered in the same Police Station being C.R. No. 68 of 1991.

3. In both the cases, the registered owners applied for release of tractors with compressors and in both the cases, by an identical order the learned Magistrate declined to release the tractor and compressor, on the grounds that the petitioners did not possess a licence to keep the explosives and that the investigation was still going on. Aggrieved, petitioners in both the cases took the matter to Court of Session by filing separate revision petitions Under Section 397, Cr.P.C. Both the revision petitions were heard by learned Addl. Sessions Judge, Bhilwara who dismissed both of them on the ground that in each case, the order passed by the learned Magistrate was on interlocutory order and hence a revision petition was not maintainable. Aggrieved, the petitioners in two cases have filed petitions separately Under Section 482 Cr.P.C invoking the inherent jurisdiction of the Court. Learned Public Prosecutor in both the cases opposes these petitions on two grounds viz. that the learned Sessions Judge was right in rejecting the revision petition, it being directed against an interlocutory order and that the petitioner having moved a revision petition in the court of Session, was precluded from moving a second revision petition by virtue of Section 397(3), Cr.P.C. and for this very reason this court could not exercise its jurisdiction in relation to the impugned order under a label of Section 482, Cr.P.C. Learned counsel for the petitioners in both the cases urges that the orders in question were not 'interlocutory orders' at all and hence learned Sessions Judge fell in serious error of law in treating the orders as interlocutory orders. Regarding the second objection, he submits that powers Under Section 482, Cr.P.C. are not controlled by Section 397(2), Cr.P.C. and the Court has jurisdiction to make such order as may be necessary to prevent abuse of the process of the Court or otherwise to secure the ends of justice.

4. It is urged that the tractors with compressors in question are no longer required for purposes of investigation. If they are allowed to remain idle in police station, petitioners would be deprived of their livelihood and this would cause incalculable loss of the petitioners, who have spent huge amounts on purchase thereof. It is urged that no useful purpose would be served by keeping the tractors with compressors in police station, which are likely to deteriorate and lose in value with passage of time. Trial of the concerned cases is likely to take much time. As such detention of the tractors with compressors in police station will result in failure of justice. Hence this court should intervene to prevent abuse of the process of law.

5. I have heard the learned counsel for the parties .11 length and have given my earnest consideration to the rival contentions. I may first of all deal with the contention that the orders of the learned Magistrate in two cases were 'interlocutory orders' and as such learned Addl. Sessions Judge was right in refusing to entertain revision petitions against these orders. Section 397 of Criminal Procedure Code reads as follows :

397. Calling for records to exercise of 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 or 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.

(2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.

(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.

6. Now, a bare reading of this section would go to show that on one hand, it preserves the power of the court of Session and the High Court to hear revisions intact, as it was available in the Code of Criminal Procedure of 1898, while on the other hand it has submitted this power by Sub-section (2) by laying down that this power would not be exercised in relation to an interlocutory order. Expression 'interlocutory order' has not been defined in the Code of Criminal Procedure, but it has been subject matter of judicial interpretation of the apex Court and I may take note of the various rulings cited at the Bar.

7. The earliest case cited at the Bar is R.P. Kapur v. State of Punjab AIR 1960 SC 866 : (1960 Cri LJ 1239). That decision pertains to the old Code viz. the Code of Criminal Procedure, 1898 and it had no occasion to deal with provisions of Section 397(2) which was introduced for the first time in the New Code of Criminal Procedure viz. the 1973 Code. In that case the apex Court was concerned with the question in what cases a High Court could exercise its inherent powers vested in it Under Section 561-A of the old Code. There the further question was if the apex Court could exercise its powers under Article 136 of the Constitution of India. This decision obviously does not assist me in deciding the question if the impugned orders of the learned Magistrate were interlocutory orders or not. Likewise the decision rendered in the State of U.P. v. Col. Sujan Singh AIR 1954 SC 1897 : (1965 (1) Cri LJ 94) had no occasion to interpret the expression 'interlocutory order' as occurring in Section 397(2), Cr. P.C. but it dealt with the question as to what would be final order as contemplated by Article 134(1) of the Constitution of India. The first case, which had an occasion to interpret the expression 'interlocutory order' as occurring in Section 397(2) Cr. P.C. is Amarnath v. State of Haryana AIR 1977 SC 2185 : (1977 Cri LJ 1891). In that case, their Lordships held as follows (Para 6) :

It seems to us that the term 'interlocutory order' in Section 397(2) of the 1973 Code had been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the rights of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceedings, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court.

(Emphasis mine)

8. The next case in which the apex Court had occasion to interpret the expression is Madhu Limaye v. State of Maharashtra AIR 1978 SC 47 : (1978 Cri LJ 165). In that case, their Lordships approved of the interpretation of the expression 'interlocutory order' as given in Amarnath's case (1977 Cri LJ 1891) (SC) (supra). The next case, to which ray attention has been drawn is V.C. Shukla v. State through C.B.I. AIR 1980 SC 962 : (1980 Cri LJ 690). In that case, the expression 'interlocutory order' as occurring in Section 397(2), Cr. P.C. was not the subject matter of discussion, but their Lordships were interpreting the expression as occurring in Section 11 of the Special Courts Act. Hence that decision is not of any help in this case.

9. Hence, so far as the expression 'interlocutory order' as used in Section 397(2), Cr. P.C. is concerned, the decision rendered in Amarnath's case, as approved in Madhu Limaye's case still holds the field.

10. Now, according to this interpretation, any order of moment, which substantially affects rights of the parties cannot be called an interlocutory order at all. Right of a registered owner of a vehicle to use the same during the pendency of investigation or trial is an important right and this right comes to an end only when the vehicle has been confiscated in accordance with some provision of law. It is no body's case that any order of confiscation of the tractors and compressors have been passed in the two cases. This is true that Sections 451 to 459, Cr. P.C. empower the courts to pass suitable orders, both regarding interim custody as also regarding final disposal of the property. But, such orders have to be consistent with the rights of the parties and exigencies of the case. Now, by refusing to deliver the tractors and compressors to the rightful owners, the learned Magistrate has, even though temporarily, decided a valuable right of the claimants, regarding custody of the tractors and compressors during the pendency of investigation/trial. Tested upon this tough stone, if an order decides this valuable right even temporarily, it cannot be said that it is an interlocutory order in the sense, it has been used in Section 397(2), Cr. P.C. To my mind, the interpretation of the expression 'interlocutory' as given in Amarnath's case (1977 Cri LJ 1891) (SC) or Madhu Limaye's case (1978 Cri LJ 165) (SC), would not embrace an order which decides such a valuable right of the claimants.

11. Now, I may refer to the various rulings of our High Court which had occasion to deal more specifically with similar matters. The learned Addl. Sessions Judge has placed reliance upon Shakir Hussain v. State of Rajasthan, Mehmood Khan v. The State and Prem Sikh Ram Ram Sikh v. State, 1979 Cri LR (Raj) 1988. All these cases decided by a common order pertained to interim custody of a truck pending trial, which truck was said to be a subject matter of robbery. Learned Magistrate held that on the day of occurrence, the truck was in possession of Shakir Hussain. He, therefore, passed a conditional order directing interim custody of the truck to be delivered to Shakir Hussain. He rejected the application of rival claimants. Aggrieved, Shakir Hussain as also rival claimants approached this Court in revision. A learned single Judge of this Court rejected the revision petitions on the ground that the order of the learned Magistrate was an 'interlocutory order'. Hence, the Court was debarred from entertaining the revision petition. Here, it may be stated that neither Amarnath's case (1977 Cri LJ 1891) (SC), nor Madhu Limaye's case (1978 Cri LJ 165) (SC), referred to above, were brought to the notice of the learned single Judge, who gave the decision in question.

12. Learned Addl. Sessions Judge has, then referred to State v. Ramnarain, 1976 Raj LW 287 : (1977 Cri LJ NOC 199). But the citation appears to be incorrect and I have not been able to lay hands on any such ruling. Subordinate Judges should be more careful and accurate in citing rulings.

13. Learned Addl. Sessions Judge has referred to Raghunath v. State of Rajasthan, 1983 Raj Cri C 203. In this case, a camel said to be subject matter of an offence Under Section 420, IPC was directed to be delivered on interim 'supurdgi' to the complainant during the pendency of the trial. Accused Raghunath also claimed such 'supardgi' but the learned Magistrate rejected his application. Aggrieved, the accused approached this Court by filing revision petition Under Section 397, Cr. P. C. A learned single Judge of this Court held that the order in question was an 'interlocutory order', hence a revision petition did not lie. However, it was held that the Court could use it powers Under Section 482, Cr. P. C. to do justice. This decision also did not refer to the interpretation placed on the expression 'interlocutory order' by the apex Court in Amarnath and Madhu Limaye cases (1977 Cri LJ 1891): (1978 Cri LJ 165) (supra).

14. In my opinion, with respects to learned Judges, who decided Shakir Hussain's case (1979 Cri LR (Raj) 1988) and Raghunath's case (1983 Raj Cri C 203), these cases did not lay down correct law, inasmuch as they failed to take note of the aforesaid two cases of the apex Court, which interpreted the expression 'interlocutory order' occurring in Section 397(2), Cr. P. C. To be more specific, both these judgments of the learned single Judges of this Court are judgments per incuriam inasmuch as they were passed without taking into consideration the law declared by Supreme Court on the subject. Hence, I need not follow them, but would choose to follow the ratio laid down in Amarnath's case (1977 Cri LJ 1891) and Madhu Limaye's case (1978 Cri LJ 165), in determining the true character and nature of the orders passed by the learned Magistrate qua Section 397(2), Cr. P. C. I am supported in my view by the following observations in Constitutional Law of India by H. M. Seervai, 3rd Edn., page 2240 :

The decisions of the Court of appeal (in our case, the High Court) upon arguments of law must be followed by the Courts of first instance, and are, as a general rule, considered by the Court of Appeal to be binding on itself, until a contrary determination has been arrived at by the House of Lords (Supreme Court in our case). There are, however, three exceptions to this rule, namely, (1) the Court is entitled and bound to decide which of two conflicting decisions of its own it will follows; (2) the Court is bound to refuse to follow a decision of its own, which, though not expressly overruled, cannot in its opinion, stand with a decision of the House of Lords; (3) the Court is not bound to follow a decision of its own if given per incuriam. A decision given per incuriam when the court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords.

In these premises, I hold that the orders of the learned Magistrate refusing to hand over tractors and compressors in question to their respective claimants were not 'interlocutory orders' and hence revisions against these orders were maintainable before the learned Sessions Court and the Addl. Sessions Judge erred in treating these orders as interlocutory orders. He was, therefore, not right in rejecting the two revision petitions on the preliminary objection, but ought to have decided them on merits.

15. Now, I may deal with the objection, which is based on Sub-section (3) of Section 397, Cr. P. C., already reproduced above. A plain reading of this sub-section would go to show that if an application has been made by a person under Section 397 to High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them. Plainly, the petitioners already having moved the Sessions Court were not entitled to maintain a fresh revision petition j to this Court and this Court is precluded from entertaining such an application Under Section 397(3), Cr. P. C. But, the question is whether bar under Section 397(3), Cr. P. C. also bars a remedy Under Section 482, Cr. P. C. This section reads as follows :

482. Saving of inherent powers of High Court.-- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of Court or otherwise to secure the ends of justice.

Learned counsel for petitioner has relied upon in this connection Madhu Limaye's case (1978 Cri LJ 165) (SC) (supra) and contends that powers Under Section 482, Cr. P. C. are not controlled by Section 397, Cr. P. C. in any manner and these powers have been conferred on the High Court to enable it to prevent abuse of process of law and secure ends of justice. As against this, the learned P. P. relied upon Amarnath's case (1977 Cri LJ 1891) (SC) (supra) and Rajan Kumar Manchand v. State of Karnataka, 1990 Cri LR (SC) 602 (2) and contends that in a case, where a second revision would not lie by virtue of Section 397(3), Cr. P. C., remedy would also be barred Under Section 482, Cr. P. C.

16. In Amarnath's case (supra), it was held that the inherent powers of the Court can be exercised, when there is no express provision on the subject matter. It was held that where there is an express provision barring a particular remedy, the Court cannot resort to the exercise of inherent powers. This was a two Judges Bench decision.

In Madhu Limaye's case (supra) which was a three Judges Bench decision, the correctness of the aforesaid view was doubted and it was held that on this aspect, Amarnath's case (1977 Cri LJ 1891) (SC) did not lay down correct law. Their Lordships in Madhu Limaye's case (1978 Cri LJ 165) (SC) after reproducing Section 482, Cr. P. C. proceeded to say (at pp. 168-169 of Cri LJ) :

At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions :--

(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

(2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice;

(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.

9. In most of the cases decided during several decades the inherent power of the High Court has been invoked for quashing of a criminal proceeding on one ground or the other. Sometimes the revisional jurisdiction of the High Court has also been resorted to for the same kind of relief by challenging the order taking cognizance or issuing processes or framing charge on the grounds that the Court had no jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no charge could be framed as no offence was made out on the allegations made or the evidence adduced in Court. In the background aforesaid, we proceed to examine as to what is the correct position of law after the introduction of a provision like Sub-section (2) of Section 397 in the 1973 Code.

10. As pointed out in Amar Nath's case, AIR 1977 SC 2185 : (1977 Cri LJ 1891) (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing Sub-section (2) in Section 397. On the one hand a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include Sub-section (2) of Section 397 also, 'shall be deemed to limit or affect the inherent powers of the High Court.' But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem would be to say that the bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vaxatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and after his acquittal a second trial after proper sanction will not be barred on the doctrine of Autrefois Acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harrassing the accused up to the end? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/ or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.

It appears that this three Judges bench decision was not brought to the notice of their Lordships, who decided Rajan Kumar's case (1990 Cri LR (SC) 602 (2)). Hence, in spite of Rajan Kumar, I am bound to follow the principle enunciated in Madhu Limaye's case, (1978 Cri LJ 165) (SC) which is decision of a larger bench of the Apex Court and following the same I hold that even though a second revision by the petitioners was not competent before this Court, yet this Court is not precluded from preventing abuse of the process of the Court and is competent to see that the ends of justice are secured.

17. Here, I may state that I am fully aware of the limitations that operate while exercising inherent jurisdiction of this Court Under Section 482, Cr. P. C. This power has to be exercised very sparingly and only to ensure that ends of justice are secured and to see that process of Court is not abused.

18. Now, keeping these principles in background, I have to examine if this Court should intervene in the impugned orders passed by the learned Magistrate, as also by the learned Addl. Sessions Judge. It would bear repetition that the tractors and compressors in question are no longer required for investigation. They have not been confiscated as yet under any provision of law. They continue to belong to the respective petitioners, who are registered owners. Tractors and Compressors are costly vehicles and equipment employed by the respective owners for earning their livelihood. It is difficult to say how much time the trial will take to conclude. If during such a trial, the vehicles and compressors are allowed to remain with police, they are bound to deteriorate with passage of time. The impugned orders, if allowed to stand, shall have serious evil consequences for the petitioners. In case, the Courts below do not order forfeiture of the tractors and compressors and it is found that transport of explosives in the tractors was without knowledge or consent of respective registered owners, it would be difficult to recompense them for the loss of use of their vehicles and equipment. In my opinion this would cause serious miscarriage of justice and to prevent abuse of the process of law and to secure justice to the petitioner, it is eminently desirable that the petitioners should be allowed use of their respective vehicles and compressors during the course of investigation and trial.

19. In the above premises, both the petitions are accepted and the impugned orders of the courts below are set aside and in both the cases, the learned Magistrate is directed to, handover the appropriate tractor and compressor to its registered respective owner/ owners on each set furnishing a personal bond in a sum of Rs. 1,50,000/- and a solvent security in a like sum, stipulating to produce the tractor and compressor before the trial Magistrate on such date or dates on which, the tractor and compressor is required to be produced, during the course of trial. The bonds shall further stipulate that during the trial, the person/persons to whom the tractor and compressor are delivered, shall not transfer or alienate the same and that the tractor and compressor shall be kept in good repairs and no alteration shall be made in them, except upon prior written permission of the trial Magistrate. The petitioners in each case are granted 15 days time to furnish necessary bonds.