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Kerala Transport Co. Vs. D.S. Soma Shekar and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Revn. Petns. Nos. 220, 261 to 265, 324 to 328, 396 to 402, 495 to 501 and 536 to 543 of 197
Judge
Reported in1982CriLJ1065; ILR1982KAR169; 1982(1)KarLJ186
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 154, 157, 173, 239, 319, 378, 378(4), 397, 401, 401(2), 403, 421, 435 and 439; Indian Penal Code (IPC), 1860 - Sections 109, 120B, 420, 467, 468, 471 and 477A
AppellantKerala Transport Co.
RespondentD.S. Soma Shekar and ors.
Appellant AdvocateM.M. Jagirdar, Adv.
Respondent AdvocateM.V. Devaraju, Spl. Public Prosecutor, ;B.S. Keshava Iyengar, Advocate General, ;A. Shamanna, ;S.A. Pattan, ;N. Sampathkumar, ;C.H. Hanumantharaya and ;S.A. Mujeeb, Advs.
Excerpt:
- code of civil procedure, 1908. order 38, rule 5: [a.n. venugopala gowda, j] attachment before judgment suit for specific performance of agreement i.as for grant of interim injunctions and attachment before judgment held, unless the plaintiff establishes that the defendant is attempting to remove or dispose of his assets, with an intention to defeat the decree that may be passed against him, the application under order 38, rule 5 cannot be allowed. on facts, held, trial court has not recorded in its order that the first defendant is likely to dispose of the schedule property with the intention of defeating the decree that may be passed in the suit. the trial court has ignored the mandatory requirements of order 38, rule 5 while passing the impugned order. hence, plaintiff has not.....order1. these petitions by the original complainant are directed against the common order dated 19-2-1979 passed by the judicial magistrate first class, tiptur, in c.c. nos. 1051 to 1051, 1057 to 1060/1977 and 103 to 111 and 1569 to 175 of 1978 discharging the accused-respondents of the offences under sections 120-b, 477-a, 420 and 420 read with s. 109 of the penal code. 2. i.a. no. 4 in each of the petitions is filed by a-1 under section 482 of criminal p.c. for dismissal of the aforesaid petitions on the ground that a private party has no locus standi to prosecute the above revision petitions. 3. for proper appreciation of the grounds urged by the accused in the said application regarding maintainability of the revision petitions, it is necessary to advert to the facts leading to the.....
Judgment:
ORDER

1. These petitions by the original complainant are directed against the common order dated 19-2-1979 passed by the Judicial Magistrate First Class, Tiptur, in C.C. Nos. 1051 to 1051, 1057 to 1060/1977 and 103 to 111 and 1569 to 175 of 1978 discharging the accused-respondents of the offences under Sections 120-B, 477-A, 420 and 420 read with S. 109 of the Penal Code.

2. I.A. No. 4 in each of the petitions is filed by A-1 under Section 482 of Criminal P.C. for dismissal of the aforesaid petitions on the ground that a private party has no locus standi to prosecute the above revision petitions.

3. For proper appreciation of the grounds urged by the accused in the said application regarding maintainability of the revision petitions, it is necessary to advert to the facts leading to the revision petitions, in brief.

4. The Detective Inspector (F.S.) C.O.D., Bangalore filed 37 charge-sheets before the trial Court against the accused who are either in number, for offences under Sections 120-B, 420, 477-A and 109 of the Penal Code. A-1 to A-3 are the partners of M/s. D. S. Mallappa & Sons, M/s. D. S. Mallappa and Co., and M/s. Deshmudre & Co., carrying in copra business at Tiptur. Accused 4 (A), (B), (C) and (D) were in charge of the Kerala Transport Company Bhoruka Road Lines Pvt Ltd./Transport Corporation of India Ltd., Tiptur branch office and A-5 was the Branch Manager of the State Bank of Mysore, Tiptur Branch at the relevant point of time. The case of the prosecution is that between 14-1-1976 and 12-3-1976 A-1 to A-3 entered into criminal conspiracy with A4 (A) to (D) and A-5 with an intention of cheating the State Bank of Mysore. Tiptur Branch, falsified the books of the said Transport companies and in pursuance of the said conspiracy A4 (A) to (D) and A5 wilfully and with intent to defraud, prepared and issued false lorry receipts to A1 to A3, which receipts or way-bills were purported to have been issued for receipt of copra for being despatched to customers of M/s. D. S. Mallappa & Sons, M/s. D. S. Mallappa & Co., and M/s. Deshmudre & Co., even though no goods were delivered to them by A-1 to A-3 for despatch to those customers and as such falsified the books of the said Transport Companies.

In pursuance of the said conspiracy A-1 to A-3 also drew up several hundies on the upcountry customers of M/s D. S. Mallappa & Sons, M/s. D. S. Mallappa & Co., and M/s. Deshmudre & Co., and dishonestly presented the same along with the aforesaid false lorry receipt or waybills to the State Bank of Mysore, Tiptur Branch for a total sum of rs. 48,00,000 and thereby cheated the said Bank. A-5, who was the then Branch Manager of the said Bank knowing or having reason to believe that the lorry receipts were not supported by despatch of goods abetted A-1 to A-3 for cheating the State Bank of Mysore and also the aforesaid lorry Transport Companies by allowing to discount the said bills and crediting Rupees 48,00,000/- to the account of M/s. D. S. Mallappa & Sons and as such A-1 to A-4 (A) to (D) and A-5 have committed offence punishable under Sections 120-B, 477-A, 420 and 420 read with Section 109 of the Penal Code.

5. The learned Magistrate after hearing arguments of both the learned Assistant Public Prosecutor and also the learned counsel appearing for the accuse din al the 37 cases, before framing of the charges, and after considering the documents and the rival contentions of both the parties, discharged the accused in all the aforesaid cases under Section 239 Cr.P.C. of the offence punishable under Sections 120B, 477A, 420 and 420 read with Section 109 of the Penal code holding that by and large as two views are equally possible in the said cases and the evidence placed on record could raise some suspicion but not grave suspicion against the accused A-1, A-4(A) to (D) and A-5 are fully within their rights to get themselves discharged Aggrieved by the said order, the original complainant M/s. Kerala Transport Company has filed the above petitions challenging the legality and correctness of the order of discharging the accused of the aforesaid offence.

6. When the aforesaid petitions came up for admission before this Court, the office raised an objection with regard to the maintainability of the above petitions as the State of Karnataka, who is the complainant before the trial court, has not filed the revision petitions, but on the other hand they were preferred by the original complainant, viz., M/s. Kerala Transport Company. On 31-5-1979 this Court admitted the above petitions keeping open the question of maintainability, which shall be decided at the time of final hearing.

7. The State also filed Crl.R.P. Nos. 334 to 370 of 1979 challenging the very order of discharge dated 19-2-1979 passed by the Magistrate in the aforesaid criminal cases.

8. The petitions filed by the Kerala Transport Company as also the petitions filed by the State as aforesaid came up for hearing. In the meantime, as stated earlier, A-1 filed I.A. No. I in each of the 33 petitions, filed by M/s. Kerala Transport Company, praying that those petitions be dismissed as being not maintainable in view of the revision petitions filed by the State against the very same order of discharge passed by the trial Court. The parties submitted that the said I.A. No. I be disposed of as a preliminary issue and accordingly arguments were heard on the said I.A. Learned counsel appearing for the accused, the original complainant and the learned Advocate General appearing for the State advanced lengthy arguments on the question of maintainability or otherwise of the petitions filed by M/s. Kerala Transport Company.

9. As a common question of law is involved in all these petitions, they are clubbed together, heard and disposed of by this order.

10. Sri A. Shamanna, learned counsel appearing for the accused, contended that as the State has challenged the legality and correctness of the order of discharge separately the petitions filed by the original complainant challenging the very same order in the above petitions are not maintainable. Elaborating the said contention what he submitted was that though in theory any person can set the law in motion, that does not invest such person with a right to prosecute the matter to its logical conclusion. He contended that the purpose of the original complainant in filing the above petitions is served as the State has stepped in and filed revision petitions in the same matter with the result the original complainant ceases to be an independent entity with a cause of his own to advocate his cause. According to Sri Shamanna when once a proper party, namely, the State steps in and invokes the revisional jurisdiction of this Court under Section 401, Cr.P.C., the original complainant has to beat a retreat once for all. He further contended that as the charge-sheets have been filed in pursuance of a police report and investigation, a private party has no locus standi and if a private party is permitted to prosecute the proceedings along with the State, it would not only lead to chaos and confusion but also would amount to a sort of 'double jeopardy'.

11. Counteracting the aforesaid arguments Sri M. M. Jagirdar, learned counsel appearing for the petitioner-original complainant contended that there is no bar for this Court to entertain a revision petition by a private party under Section 401, Cr.P.C. He contended that in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391. If that is so, he submitted that no one has a right to be heard by this Court under its revisional powers much less the State. According to hi, this Court could at any time call for the proceedings of the records or if they are brought to the notice of this Court by any one, this Court in its discretion could exercise any of the powers conferred on a court of appeal as contemplated under S. 401, Cr.P.C. If that is so, he contended that the original complainant, being the party who set the law in motion by lodging a complaint against the accused, as an aggrieved party could maintain a revision petition. He submitted that the State does not stand on a better footing than a private party as far as the revisional powers of this Court are concerned and ultimately it is left to the discretion of the Court to hear any party.

He also relied upon sub-section (2) of S. 401, Cr.P.C. which enjoins hat no order under the said section shall be made to the prejudice of the accused or other person unless he had had an opportunity of being heard wither personally or by pleader in his own defence. With regard to the option of court to hear parties, he relied upon the provisions of S. 403, Cr.P.C. and submitted that no party has any right to be heard either personally or by pleader before any Court exercising its powers of revision, save as otherwise expressly provided by the Code but the Court may if it thinks fit, when exercising such powers, hear any party either personally, or by pleader. In that view of the matter, he contended that the petitioner being a person, who is adversely affected by the order of the trial Court, could present revision petitions and this Court would not normally refuse to hear him in spite of the fact that the state having preferred revision petitions in respect of the same order. He further submitted that nothing prevents this Court under its revisional jurisdiction to hear the original complainant as also the State in respect of the impugned orders. He submitted that in any view of the matter the accused would not be prejudiced if an opportunity is given to the original complainant in the above revision petitions and as such prayed that I.A. No. I filed in each of the petitions may be dismissed.

12. The learned Advocate General appearing for the State submitted that thee is no bar for this Court to hear the original complainant along with the State under the provisions of S. 401, Cr.P.C. as this Court could exercise jurisdiction either suo motu or if it comes to its knowledge otherwise. While dealing with this point, he also relied upon the provisions of Section 378(4) Cr.P.C. and submitted that the original complainant is in a better position than the State itself who could present an appeal against an order of acquittal if this Court grants special leave to him in that behalf. In other words, he generally supported the contention of Sri Jagirdar that there is no bar to hear the revision petitions filed by the private complainant. He submitted that the petitions filed by the original complainant as also the petitions filed by the State may be clubbed together and heard. In the alternative, he submitted that it is ultimately for the Court to decide which of the parties to be heard in the matter.

13. Sections 397 or 401 Cr.P.C. confer general revisional jurisdiction on the High Court and Sessions Judge. Section 397 Cr.P.C. empowers the High Court and Sessions Judge to call for and examine the record of any proceeding before any inferior Criminal Court within the local limits of its or his 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, as to the regularity of any proceedings of such inferior criminal court. Section 401 Cr.P.C. specifies the revisional powers of the High Court in dealing with any proceeding the record of which has been called for under Section 397 or which otherwise has come to its knowledge. In Pranab Kumar Mitra v. State of West Bengal : 1959CriLJ256 the Supreme Court has observed thus :-

'The revisional powers of the High Court vested in it by this section, read with S. 397, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognised rule of criminal jurisprudence, and that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code.'

On the other hand, as already indicated, a right of appeal is a statutory right which has got to be recognised by the courts and the right of appeal, whenever exist, cannot be denied in exercise of the discretionary power even by the High Court. Therefore, the revisional powers of the Court are discretionary and are exercised for the ends of justice. The revisional power is again subject to three limitations, -

Firstly, no order can be made to the prejudice of the accused or any person, unless he had an opportunity of being heard personally or by a pleader in his own defence;

Secondly, it cannot convert a finding a acquittal into one of conviction; and

Thirdly, no revision can be entertained at the instance of a party who could have appealed under the Code and has not appealed. It, therefore, follows that in an appeal the appellant is given a statutory right to demand adjudication upon a question of law or on a question of fact or on both; but in a revisional jurisdiction, the applicant has no right whatsoever beyond the right of bringing his case to the notice of the court and it is then for the court to interfere in exceptional cases where it seems to it that some real and substantial injustice has been done. Further, in an appeal, the appellant has to be heard as a matter of right but in a revision, the petitioner, as is clearly enacted in Section 403, Cr.P.C., has no such right unless his case falls under Section 398 or sub-section (2) of S. 401, Cr.P.C.

14-17. Now adverting to the cases on hand, it is seen that on 10-4-1976 one Sri Bhanu, the Deputy General Manager of Messrs. Kerala Transport Company (Regd.) Bombay, gave a complaint to the Superintendent of Police, Tumkur, stating the circumstances and how the accused conspired among themselves, forged certain valuable securities and cheated the Company and committed offence punishable under Sections 467, 468, 471, 477-A and 420 of the Penal Code all read with S. 120-B of the I.P.C. After receipt of the said complaint, the Superintendent of Police, Tumkur, referred the same with a covering letter dated 19-4-1976 to Dy. S.P. Tiptur for getting them registered and to get them investigated by the Circle Inspector of Police, Tiptur. In pursuance of the same, a case was registered in Crime No. 36/76 of Tiptur Police Station against the accused for offence under Sections 467, 468, 471, 477-A, 420 and 120-B of the Penal Code and F.I.R. was forwarded to the Judicial Magistrate at Tiptur. After investigation, a charge-sheet was filed against the accused for the aforesaid offences on 27-12-1977, which came to be registered in C.C. No. 1051 of 1977 on the file of the Judicial Magistrate First Class, Tiptur. It is, therefore, seen that the complaint filed by the Deputy General Manager of M/s. Kerala Transport Co., is an information under Section 154, Cr.P.C., relating to the commission of cognizable offences. Thereafter, the Station House Officer, Tiptur Police Station, acted under Section 157, Cr.P.C. and followed the provisions of Chapter XII of Cr.P.C. and finally submitted a report before the Magistrate under Section 173, Cr.P.C. Further, sub-clause (ii) of sub-section (2) of S. 173, Cr.P.C. provides that the officer shall also communicate, in such manner as may be prescribed by the State Government, the action taken by him, to the person, if any, by whom the information relating to the commission of the offence was first given. Under sub-section (2) of S. 157, Cr.P.C., the officer-in-charge of the police station, if it appears that there is no ground for entering on an investigation, shall also forthwith notify to the informant, if any, in such manner as may be prescribed by the State Government, the fact hat he will not investigate the case or cause it to be investigated.

Reading the aforesaid provisions, makes it clear that M/s. Kerala Transport Co., is the informant of commission of cognizable offence and after completing the investigation police filed the charge-sheet. Similarly, an information of commission of cognizable offence by the accused, furnished by the State Bank of Mysore (H.O.) to Inspector General of Police on 23-4-1976, was registered in Crime No. 45 of 1976 and after investigation similar charge-sheet was filed against the accused for the aforesaid offences. Here again, the State Bank of Mysore is the informant. What flows from the aforesaid discussion is that the investigating agency, namely, Police, has taken the place of the informants and after investigation, charge-sheet have been filed against the accused. Under these circumstances, the informants become witnesses to the prosecution. After filing the final report under Section 173, Cr.P.C., the State of the complainant before the Magistrate and it is then the duty of the State to prosecute the accused. The State thereafter steps into the shoes of the informant, and conducts the prosecution, in which case, the informant would not be having independent status to conduct the case to the finish. In other words, the informant could be termed as a private party who has set the law in motion. Therefore, the proceedings before the Magistrate in all the cases have proceeded on a police report and if that is so a private party has no locus standi to invoke revisional jurisdiction. In Thakur Ram v. State of Bihar : 1966CriLJ700 , the Supreme Court while considering the revisional powers under Section 435, Cr.P.C. (Old Code) has observed thus :-

'In a case which has proceeded on a police report a private party has really no locus standi. No doubt, the terms of S. 435 under which the jurisdiction of the learned Sessions Judge was invoked are very wide and he could even have taken up the matter suo motu. It would, however, not be irrelevant to bear in mind the fact that the Court's jurisdiction was invoked by a private party. The criminal law is not to be used as in instrument of wrecking private vengeance by an aggrieved party against the person who according to that party, had caused injury to it. Barring a few exceptions, in criminal matters the party who is treated as the aggrieved party is the State which is the custodian of the social interests of the community at large and so it is for the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book.'

The ratio laid down by the Supreme Court makes it clear that tin criminal matters the party who is treated as the 'aggrieved party' is the State, which is the custodian of the social interests of the community at large; so it is the primary duty of the State to take all the steps necessary for bringing the person who has acted against the social interests of the community to book. It is also observed that the criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person, who according to that party had caused injury to it. Applying the aforesaid ratio to the facts of the case, it is seen that M/s. Kerala Transport Co., the Court in all these revision petitions is the informant of commission of cognizable offences by the accused and that it has been aggrieved by the illegal acts of the accused along with the State Bank of Mysore and as such an aggrieved party. M/s. Kerala Transport co., ceases to be an aggrieved party the moment the State steps into its place by placing a charge-sheet against the accused and it is for the State of continue the proceedings to its conclusion. M/s. Kerala Transport Co., recedes to the position of a third party and if it is permitted to prosecute the revision petitions parallel to the revision petitions filed by the State in respect of the very same impugned orders, it would amount to permitting M/s. Kerala Transport Co., a third party, to use criminal law to wreck private vengeance against the accused. The state being saddled with the primary responsibility of safeguarding the social interests of the community at large is to take all necessary steps to book the person who has acted against the social interest of the community. If that is so, it cannot be said that M/s. Kerala Transport Co., could maintain and continue the aforesaid revision petitions in view of the State having challenged the very impugned orders in Crl.R.P. Nos. 334 to 370 of 1979.

18. This view finds further support from the pronouncement in Bisheshar v. Rex in which a Bench of the Allahabad High Court while considering the powers of the High Court under Section 439, Cr.P.C. (Old Code) has observed thus :

'A complainant can invoke the revisional jurisdiction of the High Court to bring to its notice that the case is one in which higher punishment should have been awarded .......

So far as the question a audience is concerned nobody has a right to be heard in a revision. It is purely discretionary with the High Court whether it will hear any party in a revision or not. But in the ordinary course the High Court does hear counsel appearing in revisions and in that respect a complainant can be in no worse position ..........

The rights of a complainant are only subordinate to the rights of the Crown and it is for this reason that when the Crown takes up a case and the Government Advocate or other counsel appears on its behalf a complainant or his counsel has no right to audience unless permitted by the counsel of the Crown. But where the Crown is taking no interest in any particular matter, the complainant can take action, if no prevented by law from doing so.'

In the instant cases, State has preferred revision petitions thereby safeguarding the interest of M/s. Kerala Transport Co., in which case, the interests of the said private party has merged with the interest of the State, whose primary duty is to safeguard the interest of the wronged.

19. This takes us to the next point urged by Sri Jagirdar, namely, that under sub-section (2) of S. 401, Cr.P.C. no order under sub-section (1) of S. 401 shall be made to the prejudice of the accused or other person, unless he has had an opportunity of being heard either personally or by pleader in his own defence. The learned counsel fairly admitted that his party cannot be termed as an accused but he relied upon the words 'or other person'. Elaborating his contention what he submitted was that his party squarely falls under the category of 'other person' appearing in the said sub-section, in which case an order under sub-section (1) of S. 401, Cr.P.C. shall not be made unless he has had an opportunity of being heard. In other words, what he submitted was that he has a right of audience in case this Court interest. It is true that before amendment of the Code of Criminal were not in sub-section (2) of S. 439, Cr.P.C. (Old Code). After the amendment of the Code the said words 'or other person' have been inserted in S. 401(2), Cr.P.C. (New Code). Relying on the said amendment, the learned counsel Sri Jagirdar submitted that the words 'other person' in the said-section includes the first informant or the complainant in which case no order under Section 401 could be passed by this Court to the prejudice of his clients unless they had no opportunity of being heard. There is no substance in the said contention of Sri Jagirdar. The High Court would exercise its revisional jurisdiction in respect of orders passed under Sections 107, 125 and its allied provisions and also under Section 145 and its allied provisions.

In these proceedings, the parties are not termed as 'accused' and on the other hand they are usually designated as 'petitioner' or 'respondent' used in sub-section (2) of S. 439 embraced 'parties' under the aforesaid and similar provisions where the parties are not accused of an offences. It is to obviate such an anomaly the legislature thought it fit to amend the said provision and incorporated the words 'or other person' to denote the parties appearing in the proceedings under the Code who are not accused of any offence. If that is so, the words 'or other person' implies 'person' who are similarly placed as an 'accused'. This is made clear by the following words in the said sub-section (2) of S. 401, namely, -

'No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence'.

Defence could be of an accused or a person or party who is similarly placed and who is on the defensive. An informant or a complainant is not a person who is similarly placed and therefore M/s. Kerala Transport Co., in the instant case, cannot claim protection under sub-section (2) of S. 401, Cr.P.C.

20. Sri Jagirdar relied upon the decision in S. P. Dubey v. Narsing Bahadur : AIR1961All447 . The said High Court while considering as to who can apply in revision under 439 (Old Code) has observed thus :-

'Although revision applications are not usually accepted from third persons who are not directly affected by the illegality or irregularity the High Court has jurisdiction to entertain such applications from third parties if it chooses and there is no legal bar to their being entertained. Thus where the unfairness of the procedure adopted by the trial Magistrate is patent and glaring the High Court is entitled to take cognizance of the matter, whether brought to its notice by the actual parties to the case or by any one else. Section 439(5) only prevents a revision being filed at the instance of a party who could have appealed'.

The court was considering a revision application filed by one S. P. Dubey, Ticket Examiner, who actually caught the accused while committing an offence under Section 112 of the Railways Act. In that case he was a witness. A preliminary objection was taken that he had no locus standi to file any such application since he was not a party to the case, but he was only a witness. As aforesaid thereafter the court observed that there was no legal bar to entertain his petition as under sub-section (5) of S. 439, Cr.P.C. (Old Code). In the said case, the complainant or the State had not preferred a revision against the order of acquittal passed by the trial Court and under those circumstances the Court found that a third party was not debarred in approaching the High Court under its revisional jurisdiction. The facts in that case differ from the facts appearing in the cases on hand. As the party who ought to have revisional has filed the petitions, the revision petitions filed by M/s. Kerala Transport Co., are not maintainable in view of the Supreme Court ruling in Thakur Ram's case (1966 Cri LJ 700) referred to above. Likewise the decision cited by Sri Jagirdar in Raman v. Emperor : AIR1929Cal319 that an order of discharge of an accused person, many be interfered with at the instance of a third party when such an order has the effect of operating to the detriment of such third person and that he has in such cases a right to apply in revision against such an order, also does not apply to the facts of the case for the same reasons stated above and further, the facts in the said case differ from the facts of the cases on hand.

21. In Pratap v. State of U.P. : 1973CriLJ565 the Supreme Court while adverting to the revisional powers of the High Court under Section 439 (Old Code) regarding enhancement of sentence in petitions by private party in the absence of appeal by State held that S. 439, Cr.P.C. (Old Code) is one which the High Court can exercise suo motu and all that a person filing a revision petition under that section does is to draw the attention of the Court to an illegal, improper or incorrect finding, sentence or order of subordinate court and such powers are not affected by the fact that the revision petition is filed by a private person and not by the Government. In the said case, the State had not filed an appeal for enhancement of the sentence and the brother of the deceased had filed revision for enhancement of sentence. It is under those circumstances, the Supreme Court observed as above. But in the instant case, the State has filed revision petitions challenging the legality of the orders of discharge passed by the trial court in Crl.R.P. No. 334 of 1979 and if that is so, a third party cannot maintain similar petitions for the same relief.

22. The next point for consideration is whether under Section 403 Cr.P.C. this Court may hear a third party, namely, the petitioners herein M/s, Kerala Transport Co., - in support of the petitions

23. Section 403 Cr.P.C. reads thus :-

'Option of Court to hear parties Save as otherwise expressly provided by this Code, no party has any right to be heard either personally or by pleader before any Court exercising its powers of revisions; but the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader'.

This section is based upon the general principle governed by the maxim 'audi alteram partem', i.e., no one should be condemned unheard. In other words, it is an indispensable requirement of justice that the person who has to decide a dispute shall hear both sides giving each an opportunity of hearing what is urged against him. This section is to a contain extent, an exception to the general rule 'audi alteram partem', in that it provides that in 'revision' no party has a 'right' to be heard. This section does not violate the principle of natural justice. What is required by the principle is that a party must have an opportunity of presenting his case or of showing cause against the order. It is, however, not necessary that a party must be heard either personally or through his pleader. Whether a personal hearing should be given necessarily depends on the facts and circumstances of each case.

24. Sri Jagirdar submitted that though a party has no right to be heard before this Court, while exercising its power of revision, taking into consideration the fact that M/s. Kerala Transport Co., is directly affected by the impugned order this is a fit case wherein this Court should hear the said party. While elaborating the point, he brought to the notice of the Court the relevant conditions appearing in 'IBA Scheme for Recommending Transport Operators to Member Banks' issued by the Indian Banks' Association. Conditions under Scheme 'G' - Carrier's risk lorry receipt' read thus :

'(i) In the case of an Owner's risk lorry receipt, the transport operator is totally responsible for the damage or misappropriation of consignments due to criminal acts of himself, and is responsible for the financial liability arising out of criminal acts of the agents, associates, servants, managements etc.

(ii) In addition, in the case of a Carrier's risk lorry receipt, the operator is also responsible for negligence on the part of himself, his agents, associates, servants etc. Thus, the degree of protection available under a Carrier's risk lorry receipt would be greater than in the case of an owner's risk lorry receipt'. (rest omitted as unnecessary) He also relied upon the subject under he said IBA scheme known as 'What Transport Operators Should Ensure', more particularly clauses 12 and 16.

25. A perusal of the aforesaid provisions makes it abundantly clear that the transport operator is totally responsible for loss, damage or misappropriation of consignments due to criminal acts and is also responsible for the financial liability arising out of the criminal acts of his agents, associates, servants, managers etc. Further, the transport operators are liable to make good of financial losses and damages incurred by the consignee banks resulting from non-delivery of the consignment as a result of loss, damage or misappropriation during transit or while in the custody of the operator, his agents or servants. It is the case of the prosecution that A-1 to A-3 without delivering the consignment obtained way-bills/lorry receipts with the active connivance of A4 (A) to (D) and thereafter produced the same, which are negotiable instruments, before the State Bank of Mysore, Tiptur branch and got the amounts credited to their accounts with the help of A5 and as such committed offences punishable under Sections 420, 120-B and 420 read with Section 109 of the Indian Penal Code. If that is so, the contention of Sri Jagirdar is that the transport operators were cheated and ultimately they who are responsible for any pecuniary loss occasioned thereby to the Banks in question and they who are responsible ultimately to reimburse the amounts that have been drawn under the various way-bills/lorry receipts by A-1 to A-3.

Therefore, according to him, under the IBA Scheme for Recommending Transport Operators to Member Banks, M/s. Kerala Transport Co., is the party who is ultimately bear the consequences of the illegal to deeds of the accused, in which case this is a fit case wherein this Court should hear his client also in respect of the impugned orders. He next contended that the latter provision of S. 403, Cr.P.C. is wholly applicable to the facts of the case and therefore he has a right of audience before this Court in these petitions. Counteracting the aforesaid submission, Sri Shamanna submitted that M/s. Kerala Transport Company has not approached the Court with clean hands, as the officials of the said Company have been arrayed as accused in which even the possibility of the said company also be arrayed as accused under the provisions of S. 319, Cr.P.C., cannot be ruled out. Hence he contended that the said Company cannot be both an aggrieved party as also an accused. If that is so, he submitted that the latter part of S. 403, Cr.P.C., cannot be called for assistance for audience. The learned Advocate General submitted that there is no harm in hearing a third party along with the State as the relief prayed for by both of them is one and the same.

26. There is no force in the contention of Sri Jagirdar as also the learned Advocate General. It is no doubt true that under the latter part of S. 403, Cr.P.C. this court has been given discretion to hear any party if it thinks fit. It is to be seen, therefore, whether this is a fit case where in this Court could exercise its discretion in favour of the third party, viz., M/s. Kerala Transport Company also. As observed in Ram Adhar v. State : AIR1954All645 it is one of the principles which is firmly embedded in the system of jurisprudence that is administered in India is that justice must not only be done, but must be seen to be done. If parties either to a civil or a criminal litigation were to get the impression that Courts have no use for counsel, that they are not prepared to hear arguments addressed to them and that they come to Courts with closed minds, confidence in hte administration of justice will be shaken. But that is not the position in the cases on hand. The State has stepped into the shoes of the informant and prosecuting the case. The State as the custodian of law has pursued the remedies open in law and actively agitating the same before this Court in Crl.R.P. Nos. 334 to 370 of 1979, as already stated above. If that is so, in the circumstances of the case, M/s. Kerala Transport Co., cannot be construed as ana aggrieved party. The submission of Sri Jagirdar would have force if the State had not moved its little finger in respect of the impugned orders.

But it is otherwise in the instant cases. If that is so, the question is whether this Court could hear both the State as also the original complainant - third party - in respect of the aforesaid impugned orders. As already stated, the learned Advocate General has submitted that as there is no prohibition under the provisions of Section 401, Cr.P.C., that only a particular person should have the right of audience, there is no legal impediment for this Court in its revisional jurisdiction to hear both the State and also the third party. While dealing with this aspect of the matter, he tried to justify his contention by adverting to the provisions dealing with appeals. In this connection he relied upon sub-section (4) of S. 378, Cr.P.C. which deals with an order of acquittal passed in a case instituted upon complaint and the powers of the High Court to grant special leave to appeal from the order of acquittal on an application made to it by the complainant in that behal. He also relied upon sub-section (6) of S. 378 which reads thus :-

'If in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2)'.

At the outset it may be mentioned that the provisions of S. 378 dealing with appeal in cases of acquittal is appearing in Chap. XXIX whereas the provisions of Ss. 397 and 401 dealing with revisions are appearing in Chap. XXX of the Code of Criminal Procedure. There is no harmony among these provisions and on the other hand they are conflicting. Subquittal passed in a case instituted upon a complaint. In the instant case, under the circumstances of the case, the said provision is not applicable to the facts of the case. If that is the position, the provisions of sub-section (6) of S. 378 would not improve the respective rights either of the third party or the State. It is true under the said provision that if an application for grant of special leave to appeal from an order of acquittal is refused under sub-section (4) of S. 378, no appeal from that order of acquittal shall lie under sub-section (1) or sub-section (2). In other words, there is a finality for an order passed under sub-section (4) of Section 378, Cr.P.C. and thereafter even the State has no right under sub-section (6) of S. 378 to prefer an appeal from an order of acquittal. Relying on this aspect of the matter, the learned Advocate General submitted that the third party is placed on a higher pedestal than the State itself and therefore there is no reason why the third party should not be heard along with the State under the revisional jurisdiction. The aforesaid analogy cannot be extended to its logical conclusion under the revisional jurisdiction. As already observed, under Chapter XXIX, Cr.P.C. the parties have been given right to prefer an appeal whereas under the revisional jurisdiction there is no such vested right conferred on any party, including the State. Even under revisional jurisdiction in certain cases the High Court would not interfere in a revision petition filed by private party against order of acquittal. Reference may be made in this behalf to the decision in Erappa v. Ishwargouda Fakirgouda Patil (1970) 2 Mys LJ 1 wherein it has been held thus :-

'Where after the filing of the revision petition by a private party against an order of acquittal the appeal which had been filed by the State against the order of acquittal is dismissed by the High Court (under Section 421, Cr.P.C.) the revision petition cannot be proceeded with.

The dismissal of the State appeal which has become final cannot be questioned in the revision.

Notwithstanding that the order made by the High Court in the State appeal is one of summary dismissal, the Court of revision is precluded from going once again into the correctness of the acquittal.

The revisional power under Sections 435 and 439, Cr.P.C. is a discretionary power. Where, acting under Section 421 the High Court being satisfied of the correctness of the lower court's order of acquittal summarily dismissed the State's appeal, the real purpose of S. 439, Cr.P.C. is already served. It is therefore no longer necessary for the High Court to consider once again incorrectness of the order of acquittal in exercise of its revisional jurisdiction'.

That being the position of law, it is futile to argue that a third party should have a right of audience under revisional jurisdiction when the aggrieved party, namely, the State, is agitating the matter in revision. The powers of this Court under Section 439 Cr.P.C. (Old Code) regarding revision against acquittal by private complainant is well settled by the decision of the Supreme Court in K. Chinnaswamy Reddy v. State of Andhra Pradesh : [1963]3SCR412 ) wherein it has been stated that the said jurisdiction should be exercised by the High Court only in exceptional cases as indicated therein. There again it was a case where the State had not preferred an appeal against the judgment of acquittal. In the absence of such an appeal by the State, it was held by the Supreme Court that it was open to the High Court in revision to set aside the order of acquittal even at the instance of private parties only in exceptional cases as stated therein. If that is so, the aforesaid parallel provisions dealing entirely with a different Chapter cannot be called in aid to the provisions appearing in a different Chapter. If that is the position it is not possible to agree with the submissions of the learned Advocate General that a third party is placed in a higher pedestal than the State. The State, whose primary duty is to book the offender cannot abrogate its rights to third party in that behalf and be a silent spectator. Nor, it is desirable that the State should seek the assistance of a third party in prosecuting the guilty.

As already stated, it is open to the third party to seek recourse if the State had not initiated revisional proceedings In the instant case the State has filed revision petitions against the impugned orders and if that is so, question of hearing the third party would not arise. As indicated above, S. 403, Cr.P.C., is purely discretionary and it is for the Court to hear any party in revision or not. The circumstances appearing in this case show that the State who is the aggrieved party and custodian of the social interests of the community at large has taken all steps necessary for bringing the person (accused) who has acted against the social interests of the community to book, in which case the third party, viz., M/s. Kerala Transport Co., has ceased to be an independent entity with a cause of its own to pursue its cause. The criminal law is not to be used as an instrument of wrecking private vengeance by an aggrieved party against the person who according to that party, had caused injury to it. In other words, the original petitioner, as a private party has no locus standi to pursue the petitions under the circumstances mentioned above and if that is so, the said petitions are not maintainable and they are liable to be dismissed.

27. In the result, for the reasons stated above, I.A. No. I filed in each of these petitions is allowed and consequently the above petitions are dismissed as being not maintainable.

28. Order accordingly.


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