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Emperor Vs. Jehangir M. Jassawalla - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai
Decided On
Case NumberCriminal Review No. 412 of 1946
Judge
Reported in(1947)49BOMLR393
AppellantEmperor
RespondentJehangir M. Jassawalla
Excerpt:
.....code, 1898, provides no express power to curtail the ordinary rights of a citizen to initiate criminal proceedings, however vexatious they may be.;the high court has no inherent power to make an order prohibiting a person from commencing any criminal proceedings on the ground that he is a vexatious litigant.;vexatious actions act, 1896, in re : boaler, in re [1915] 1 k.b. 21, followed.;emperor v. nazir ahmed (1944) 47 bom. l.r. 245, p.c. and rogers v. shrinivas (1940) 42 bom. l.r. 478, referred to.;in dealing with proceedings and applications which are vexatious, the magistrates must not be slow, in proper cases, to exercise the power given to them under section 250 of the criminal procedure code, 1898. - - of these nineteen proceedings, seven are still pending, and all the rest..........no doubt that he is a vexatious litigant. the government pleader relies upon section 561a of the code of criminal procedure, which was introduced as a new section by 1923 amendment act. that section is in these terms:nothing in this code shall be deemed to limit or affect the inherent power 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 any court or otherwise to secure the ends of justice.but it has been laid down by the highest authority, and also by a full bench of this court (see emperor v. nazir ahmed (1944) 47 bom. l.r. 245. and rogers v. shrinivas (1940) 42 born. l.r. 478 that this section does not give this court any new power which it did not possess before. it only provides that those.....
Judgment:

Leonard Stone, Kt., C.J.

1. At the time of hearing criminal revision application No. 369 of 1946 brought to this Court by Mr. Jassawalla against Mr. Vaney, it was brought to this Court's attention that these two persons were engaged in a bitter dispute with regard to some property at Juhu, and as a result were indulging in a multplicity of criminal proceedings in the Magistrates' Courts of this City, involving not only each other but also in some of the cases the relatives and servants of each other respectively. These mutual recriminations usually take the course of criminal proceedings of defamation under Section 500 of the Indian Penal Code, and some of these cases to which this Court's attention was drawn appeared very frivolous and vexatious, and we enquired generally from the Magistrates about the number of the criminal complaints of this type, which had been filed at the instance of these two persons. In the result on July 8, 1.946, in rejecting the revisional application to which I have referred, we ordered that the record and proceedings of all the cases commenced by Mr. Jassawalla and by Mr. Vaney since September 1, 1944, in the Presidency Magistrates' Courts in Bombay and Greater Bombay be called for, and we also directed notices to be served upon both of them to show cause why an order should not be made against them as vexatious litigants, prohibiting them from commencing any proceedings in any Magistrate's Court for two years.

2. The information and documents received from the Magistrates' Courts are now before us, and they show that Mr. Jassawalla has commenced four proceedings against Mr. Vaney, all of which ended in acquittals, and Mr. Shroff, a friend of Mr. Jassawalla, has also commenced proceedings against Mr. Vaney which ended in Mr. Vaney being fined Rs. 250. On the other hand, Mr. Vaney has commenced or re-commenced eighteen criminal complaints against Mr. Jassawalla, his relatives, friends and servants and has instigated a further proceeding by his servant against a servant of Mr. Jassawalla. Of these nineteen proceedings, seven are still pending, and all the rest have been unsuccessful. In addition to that Mr. Vaney also commenced criminal proceedings under Section 405 of the Indian Penal Code against the Meridian Watch Co., and another, in which the accused were acquitted but Mr. Vaney was fined for his contempt of Court. This case Mr. Vaney brought in revision to this Court, but it was dismissed. It is clear that not only has a great waste of time of the Magistrates' Courts taken place, but also the processes of those Courts have been abused.

3. The learned Government Pleader appears to support the rule, and the short point for our decision is whether this Court has the power to make an order prohibiting a person, in such circumstances, from commencing any further proceedings on the ground that he is a vexatious litigant, for, in my opinion, in Mr. Vaney's ease there is no doubt that he is a vexatious litigant. The Government Pleader relies upon Section 561A of the Code of Criminal Procedure, which was introduced as a new section by 1923 Amendment Act. That section is in these terms:

Nothing in this Code shall be deemed to limit or affect the inherent power 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 any Court or otherwise to secure the ends of justice.

But it has been laid down by the highest authority, and also by a full bench of this Court (see Emperor v. Nazir Ahmed (1944) 47 Bom. L.R. 245. and Rogers v. Shrinivas (1940) 42 Born. L.R. 478 that this section does not give this Court any new power which it did not possess before. It only provides that those inherent powers which the Court possesses shall be preserved, and its object is to remove any doubt that the Court's powers are not exclusively circumscribed by the Code itself. The Code provides no express power to curtail the ordinary rights of a citizen to initiate criminal proceedings, however vexatious they may be. So the question is whether this Court inherently has such a power.

4. The great Code of Criminal Procedure owes its origin to the genius of Lord Macaulay who prepared it in 1837, but it did not reach the statute book till it became Act XXV of 1861 and came into force on January 1, 1862, which is the same year as the High Courts Act, under which and the Letters Patent of 1865, this Court derives its jurisdiction and inherited powers of its predecessors. But had the High Courts set up in 1862, either by inheritance or by inherent right, the power to make such an order as is now contemplated? In my opinion, they had no such power. The Court has the power to make an order to prevent frivolous and vexatious applications in proceedings pending before it, and thus prevent an abuse of its processes in order that justice may be secured. See In re Shamdasani (No. 2) : AIR1930Bom480 . which is a full bench decision of this Court. But that is a different matter altogether.

5. His Majesty's Courts in England have no power to restrain generally a vexatious litigant, except in so far as that power has been conferred in civil matters by statute, first by the Vexatious Actions Acts, 1869 and 1896, and now under Section 51 (1) of the Supreme Court of Judicature (Consolidation) Act, 1925. In considering whether the 1896 Act applied to criminal proceedings, the Court of Appeal in England by a majority decision held that it did not, and that there was no power to make an order of restrain in criminal matters. See Vexatious Actions Act, 1896 In re: Boaler, In re, [1915] 1 K.B. 21 in which case Lord Justice Kennedy said (p. 33) :

Is it reasonable to suppose that the Legislature, when by this Act [i.e. Vexatious Actions Act, 1896,] it gave the High Court power by order to prevent a person who had habitually and persistently instituted civil proceedings in the High Court or any inferior Court without any reasonable ground from instituting legal proceedings in the High Court or any other Court, intended that such a vexatious litigant, man or woman, should not if robbed or assaulted be entitled to give the criminal wrong-doer in charge, or to apply to a magistrate for a summons, without first going to a judge in chambers in London, or to a Divisional Court, and satisfying the judge or the Court that his proceeding is not an abuse of the process of the Court. But for the divergence of opinion in the present case, both in the Divisional Court and in this Court, I should have humbly ventured to think that the refusal of the institution of proceedings to obtain redress for a criminal wrong, however vexatiously litigious the applicant for that redress may have been, unless he first instituted an inquiry into the merits of his claim by civil proceedings in the High Court in London to get leave to institute the criminal proceedings-and this follows from the contentions of the learned Solicitor General-was in itself sufficient to show that the construction which the appellant seeks to put upon 'legal proceedings' in this statute was untenable. And in this connection it is not an unimportant consideration that in the case of indictable offences our law in the preliminary stage before the magistrate, or, if the matter goes before the grand jury, in their inquiry, has already given ample safeguards against the further prosecution of anything like a frivolous charge.

6. I respectfully agree. In my opinion, the rule in the case before us cannot be made absolute, and must be discharged. But this does not mean that there is no remedy, and I desire specifically to draw the attention of the magistracy to the powerful weapon which they do possess in dealing with proceedings and applications of the nature to which our attention has been drawn. By Section 250 oil the Code of Criminal Procedure, it is provided:

(1) If in any case instituted upon complaint or upon information given to a police-officer or to a Magistrate, one or more persons is or are accused before a Magistrate, of any offence triable by a Magistrate, and the Magistrate by whom the ease is heard discharges or acquits all or any of the accused, and is of opinion that the accusation against them or any of them was false and either frivolous or vexatious, the Magistrate may, by his order of discharge or acquittal, if the person upon whose complaint or information the accusation was made is present, call upon him forthwith to show cause why he should not pay compensation to such accused or to each or any of such accused when there are more than one, or, if such person is not present, direct the issue of a summons to him to appear and show cause as aforesaid.

By Sub-section (2) :

The Magistrate shall record any cause which such complainant or informant may show and if he is satisfied that the accusation was false and either frivolous or vexatious may, for reasons to be recorded, direct that compensation to such amount and not exceeding one hundred rupees or, if the Magistrate is a Magistrate of the third class, not exceeding fifty rupees, as he may determine, be paid by such complainant or informant to the accused or to each of any of them.

And then by Sub-section (2A) :

The Magistrate may, by the order directing payment of the compensation under Sub-section (2), further order that, in default of payment, the person ordered to pay such compensation shall suffer simple imprisonment for a period not exceeding thirty days.

7. Magistrates should not be slow, in proper cases, to exercise this power and thus stop, not only the abuse of their own processes, but also the harassment of innocent people by vexatiously minded complainants.

8. A copy of our judgment in this matter is to be sent to the Chief Presidency Magistrate and he is to draw the attention of all Magistrates thereto.

Lokur, J.

9. I agree.


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