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Rajanikanta Meheta Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in42(1976)CLT292; 1976CriLJ1674
AppellantRajanikanta Meheta
RespondentState of Orissa
Cases Referred(Swarn Singh v. State of Punjab
Excerpt:
.....at all. state of punjab 1960crilj1239 while laying down some of the categories of cases where the inherent jurisdiction to quash proceedings can be exercised, the court indicated that it is important to bear in mind the distinction between a case where there is no legal evidence or whore there is evidence which is manifestly and clearly inconsistent with the accusation made and cases v. here there is legal evidence which on its appreciation may or may not support the accusation in question it was further held that in exercising its jurisdiction under section 561-a the high court would not embark upon an enquiry as to whether the evidence in question is reliable or not. in exercising jurisdiction under section 561-a of the criminal procedure code the high court can quash proceedings if..........criminal misc. case as well as in the o. j. c. in substance is that this court should exercise its inherent powers under section 482 of the code of criminal procedure, 1973 or the extraordinary powers under articles 226 and 227 of the constitution of india to quash the proceedings.2. the petitioner is a partner of bavchand & co., a jewellery firm at cuttack. the accusation against him is that he abetted the commission by his co-accused persons of an offence of dacoity which was not committed in consequence of the abetment. on a consideration of the materials collected by the police and after hearing the parties, the learned assistant sessions judge by his order dated january 9, 1976 framed a charge under section 395/115, i.p.c. against the petitioner and under section 395, i.p.c. against.....
Judgment:

P.K. Mohanti, J.

1. Rajanikanta Meheta, the petitioner in Criminal Misc. Case No. 45 of 1976 as well as O. J. C. No. 58 of 1976, has been committed to the Court of Session to stand his trial for an offence under Section 395 read with Section 115, I.P.C. The trial is yet pending. The prayer in the Criminal Misc. Case as well as in the O. J. C. in substance is that this Court should exercise its inherent powers under Section 482 of the Code of Criminal Procedure, 1973 or the extraordinary powers under Articles 226 and 227 of the Constitution of India to quash the proceedings.

2. The petitioner is a partner of Bavchand & Co., a jewellery firm at Cuttack. The accusation against him is that he abetted the commission by his co-accused persons of an offence of dacoity which was not committed in consequence of the abetment. On a consideration of the materials collected by the police and after hearing the parties, the learned Assistant Sessions Judge by his order dated January 9, 1976 framed a charge under Section 395/115, I.P.C. against the petitioner and under Section 395, I.P.C. against his co-accused persons. At the time of consideration of the charge it was contended on behalf of the petitioner that no prima facie case had been made out against him for a charge under Section 395/115, I.P.C. The learned Assistant Sessions Judge repelled this contention and relying on the statement of the approver came to the finding that there are grounds for presuming that the petitioner had committed the offence under Section 395/115, I.P.C.

3. The approver's statement is to the effect that he along with accused Bigyan Malik approached the petitioner to arrange a jeep for going to Mali area for committing dacoity and the petitioner paid a sum of Rs. 300/- for hiring a jeep for the purpose. The petitioner's contention is that since there is no possibility of conviction on the basis of the sole uncorroborated statement of the approver, the proceedings should be quashed Reliance is placed on several decisions of the Supreme Court wherein it has been laid down that for conviction the courts should seek, as a rule of prudence, for corroboration of the evidence of the approver which must tend to connect the accused with the crime charged.

4. It is contended on behalf of the State that the order framing a charge being an interlocutory order the High Court cannot, in exercise of its inherent powers or extraordinary powers, interfere with the same in view of the ban imposed by Section 397(2) Cr. P.C. Reliance is placed on a Bench decision of this Court in the case of Bhima Naik v. State (1975) 41 Cut LT 674 : 1975 Cri LJ 1923.

5. Mr. B. M. Patnaik, the learned Counsel appearing on behalf of the petitioner did not dispute the position that the impugned order is an interlocutory order and that the principles enunciated in XLI (1975) 41 Cut LT 674 : 1975 Cri LJ 1923 are applicable to the present case, but contended that the said decision requires re-consideration by a larger Bench His further contention is that Section 397(2) Cr. P.C. bars only the revisional jurisdiction but not the inherent jurisdiction of the High Court. It is vehemently argued that the Court can quash the impugned order in exercise of its inherent power which is not affected or limited by any of the provisions of the Code of Criminal Procedure.

6. Sub-section (2) of Section 397 in the Cr. P.C. of 1973 is a new provision in this Code which was not in the old Code. It prohibits exercise of the powers of revision in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. The reason for this addition is apparent from the Notes to Clauses 407 to 415 (corresponding to Sections 397 to 405) of the Code of Criminal Procedure Bill, 1970 which are extracted below:

At present, the High Court can interfere in revision in respect of interlocutory orders also. When petitions are filed in this regard, the proceedings in the lower court are in most cases stayed in the lower court and this holds up matters until the disposal of the revision petition. It may be that at one stage it was considered that the facility of having a wrong or unjust order struck down by the High Court was a guarantee against even the slightest injustice at any stage of a criminal proceeding. But experience has shown, particularly during recent years, that this facility has been so extensively abused that it has become a major factor delaying disposal of criminal cases not only for months but for years. There are instances where cases have been held up for as long as five years by reason of the stay order during the pendency of a revision petition against some interlocutory order or the other. This facility is availed of mostly by the rich men, industrialists, corrupt officials and the like who are able to deity disposal of cases against them almost indefinitely. Meanwhile, some of the witnesses die or lose interest in the case and sometimes even the prosecution loses its keenness. These revision petitions against interlocutory orders, therefore, not only delay justice but sometimes defeat it. Interlocutory orders are, therefore, specifically excluded in Clause 407.

The legislature thus deliberately excluded the interlocutory orders from the revisional jurisdiction of the High Court by enacting this new provision.

7. In the Bench decision of this Court referred to above, it was held that Section 482 of the new Cr. P.C. cannot be invoked to quash an interlocutory order in view of the ban imposed by Section 397(2). It was however held that interlocutory orders passed without jurisdiction which constitute nullities can be interfered with in revision under Section 401 and in appropriate cases under Section 482 Cr. P.C. But the interlocutory orders passed within jurisdiction cannot be interfered with either under Section 401 or under Section 482 Cr.P.C. The learned Counsel appearing on behalf of the petitioner addressed elaborate arguments in challenging the correctness of that decision. The principal challenge is concentrated on the contention that though revisional powers have been taken away, the inherent powers remain intact and unaffected by any of the provisions of the Code of Criminal Procedure. The submission of the learned Counsel is that though an interlocutory order cannot be interfered with by exercise of the revisional powers, there is no bar to its interference in exercise of the inherent powers, it it is required in order to prevent an abuse of the process of the court or to secure the ends of justice,

8. No doubt, Section 397(2) Cr.P.C. only bars the revisional jurisdiction of the High Court. But the legal position to our mind is firmly established that the inherent powers cannot be invoked to do what the law on the subject otherwise expressly prohibits. Inherent power is not intended to be exercised for the purpose of doing something which would be in conflict with any of the express provisions of the law as it would defeat the intention of the legislature. Reference in this connection may be made to the following observations of the Supreme Court.

In the case of T. H. Hussain v. M.P. Mondkar : 1958CriLJ701 , in the context of the inherent powers of the Court under Section 561A of the old Code, their Lordships observed:. ..This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the matter in question is not covered by any specific provisions of the Code that Section 561-A can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said section.

In the case of Khushi Ram v. Hashim AIR 1959 SC 542 : 1959 Cri LJ 658 their Lordships indicated:....It is unnecessary to emphasise that the inherent power of the High Court under Section 561-A cannot be invoked in regard to matters which are directly covered by the specific provisions of the Code.

In the case of Sankatha Singh v. State of Uttar Pradesh : AIR1962SC1208 a criminal appeal was decided on merits in the absence of the appellants. Subsequently, the appellants presented a petition praying for re-hearing and they explained their absence from court on the date of hearing. This application was allowed and the appeal came up for rehearing before the succeeding Sessions Judge who held that the appellate court had no power to review or restore an appeal which had been disposed of. The Supreme Court held that the Sessions Judge could not pass the order for re-hearing of the appeal in exercise of its inherent powers when Section 369 read with Section 424 of the Code of Criminal Procedure, 1898 specifically prohibited the altering or review of its order by a court. The Court said:

Inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing.

The rule was again reiterated in Pampapathy v. State of Mysore : 1967CriLJ287 where their Lordships held as follows:.......The inherent power cannot be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the matter in question is not covered by any specific provisions of the Code that Section 561-A can come into operation.

9. Section 482 of the new Code is verbatim the same as Section 561-A of the old Code. In view of the law firmly laid down by the Supreme Court on the subject we have no doubt whatever that the Division Bench of this Court rightly took the view in the case of Bhima Naik v. State (1975) 41 Cut LT 674 : 1975 Cri LJ 1923 that the inherent powers preserved by Section 482 Cr. P.C. cannot be invoked to interfere with an interlocutory order passed within jurisdiction in view of the ban imposed by Section 397(2) Cr. P.C.

10. It is contended that in view of the several decisions of the Supreme Court there is no possibility of conviction of the accused in the absence of material corroboration to the statement of the approver and so the order framing a charge against the petitioner is in violation of the law of the land laid down by the Supreme Court. The learned Counsel submitted that in view of this infirmity, the order framing the charge is liable to be quashed either under Section 482 Cr. P.C. or in exercise of the extraordinary powers conferred by Articles 226 and 227 of the Constitution. The submission is unacceptable. An approver is undoubtedly a competent witness under the Indian Evidence Act. Under Section 133 of the Indian Evidence Act an accomplice shall be a competent witness against an accused and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice, In : [1975]3SCR453 (Ravinder Singh v. State of Haryana) the Court said:

In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confidently held to be true and reliable by the Court may be permissible. Ordinarily, however, an approver's statement has to be corroborated in material particulars bridging closely the distance between the crime and the criminal.

The statement of the approver is legal evidence for the limited purpose of framing a charge. Under Section 228 of the new Code the Court of Session shall frame a charge if after considering the records of the case and the documents and hearing the submissions of both sides, it thinks that there is ground for presuming that the accused has committed an offence triable exclusively by a Court of Session. While framing the charge, the materials which the Code expressly requires the Magistrate to consider consist of the documents referred to in Section 173. These materials do not at that stage have the status of substantive evidence. If the materials considered] in the light of the submissions of the parties furnish a reasonable basis or foundation for presuming that the accused has committed an offence exclusively triable by a Court of Session, the Sessions Judge shall frame a charge against the accused. It may be that at the trial the materials on the basis of which a charge has been framed may be rendered unacceptable. But those considerations become available only at the conclusion of the trial and not at the preliminary stage when the Judge is to make up his mind whether or not to frame a charge. In view of the statement of the approver directly implicating the petitioner with the crime, it cannot be said that there existed no prima facie case or legal evidence for framing a charge against the petitioner.

11. In AIR 1959 SC 542 : 1959 Cri LJ 658 the Magistrate found that a prima facie case had been made out against the accused and on this finding he made an order committing the accused persons to trial before the Court of Session. This order was challenged by the accused persons before the Allahabad High Court by an application made under Section 561-A Cr. P.C. The learned Judge who heard the application took the view that it was competent for him to interfere with the order of commitment under Section 561-A Cr. P.C. and that on the merits, interference with the said order was justified. He allowed the application and quashed the order of commitment as he was of opinion that on the evidence available on the record the accused could not possibly be asked to stand their trial in the Court of Session. He disbelieved the witnesses as those on whose testimony reliance could not be placed. The Supreme Court set aside the order of the High Court and restored the order of commitment observing as follows:....The distinction must always be drawn between absence of legal evidence and absence of reliable evidence. If it could be said with justification that there was no legal evidence at all in support of the prosecution case, it may lead to the inference that the commitment was bad in that it was not based on any legal evidence at all. But on the other hand where circumstances are relied upon to show that the evidence may perhaps not be delivered, they do not lead to the inference that there is no legal evidence on the record.

In the case of R. P. Kapur v. State of Punjab : 1960CriLJ1239 while laying down some of the categories of cases where the inherent jurisdiction to quash proceedings can be exercised, the Court indicated that it is important to bear in mind the distinction between a case where there is no legal evidence or whore there is evidence which is manifestly and clearly inconsistent with the accusation made and cases v. here there is legal evidence which on its appreciation may or may not support the accusation in question It was further held that in exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not.

In the case of Hazari Lal v. Rameshwar Prasad : 1972CriLJ298 it was held as follows:....In exercising jurisdiction under Section 561-A of the Criminal Procedure Code the High Court can quash proceedings if there is no legal evidence or if there is any impediment to the institution or continuance of proceedings but the High Court does not ordinarily enquire as to whether the evidence is 'reliable or not.

This view was reiterated in : 1974CriLJ802 (Jehan Singh v. Delhi Administration),

In : 1973CriLJ577 (Amar Chand Agarwala v. Shanti Bose), the accused moved the High Court for quashing the proceedings at a time when the trial was almost coming to a close. The High Court quashed the proceedings or, the grounds that the complainant suppressed material facts and that the evidence on record did not establish the alleged offence. The Supreme Court set aside the order of the High Court on the following observations:

The proper course at that stage to be adopted by the High Court was to allow the proceedings to go an and to come to its logical conclusion, one way or the other, and decline to interfere with those proceedings.

12. The learned Counsel appearing on behalf of the petitioner strenuously contended that in framing charges the court has to consider only the materials existing at the stage of framing charge. For this proposition he relied on a decision reported in : 1972CriLJ329 (Century Spinning & . v. State of Maharashtra). The facts of that case are clearly distinguishable. The case arose out of an order of the Bombay High Court setting aside the order of discharge made by the Chief Presidency Magistrate in a case under Section 120B, I.P.C. read with Section 7, Essential Commodities Act. It was found that there was no mens rea on the part of the appellants with the result that the prosecution for the offence charged was considered to be groundless. Upon such finding the Court held:

It may be borne in mind that in this case there is no question of any further evidence being led for bringing home the charge to the appellants. If on the existing material there is no ground for presuming them to be guilty then there can hardly be any point in framing charges and going through the formality of a trial and then acquitting them. Such a course would merely result in unnecessary harassment to the appellants without serving the cause of justice.

and accordingly set aside the order of the High Court and restored the order of discharge. The case at hand does not suffer from such an infirmity.

13. In the light of the principles laid down in the aforesaid decisions we are of opinion that in the instant case the allegations, if proved, would constitute an offence and since the whole material has not been brought on record it is not possible to hold that the approver's statement is not reliable and that the proceedings are in abuse of the process of the Court. It is true that the amplitude and the scope of the inherent power of the High Court saved under Section 482 Cr. P.C. is really wide and extensive but the fact remains that the power being extraordinary ought to be reserved as far as possible for extraordinary cases.

14. In a petition under Article 226(1) of the Constitution for issuance of a writ of certiorari, this Court does not sit in appeal but exercises only supervisory jurisdiction and therefore does not enter into the question of appreciation of evidence. Certiorari is issued for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it, or fails to exercise it. The High Court will not review findings of fact reached by the inferior court or tribunal even if they are erroneous. This is on the principle that a court which has jurisdiction over a subject-matter has jurisdiction to decide wrong as well as right. The power of superintendence of the High Court under Article 227 has to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors. (See : [1954]1SCR565 Waryam Singh v. Amarnath and : (1972)IILLJ165SC , Ahmedabad Mfg. & Calico Ptg. Co. v. Ramtahel Ramanand). While applying what we have said above to the facts of the present case, we find no justification for quashing the charge and the proceedings of the trial under Articles 226 and 227. Upon consideration of the materials on record and hearing the parties, the learned Asst. Sessions Judge came to the finding that there is ground for presuming that the petitioner has committed an offence punishable under Section 395/115, I P.C. This finding cannot be said to be patently wrong. The contention that the approver's evidence cannot be believed in the absence of material corroboration is premature, because the question whether the approver's evidence in the facts and circumstances of the case is believable or not is a question relating to appreciation of evidence and there can be no adjudication by the Court on this aspect at the stage of framing of the charge In : AIR1976SC232 (Swarn Singh v. State of Punjab) the Court held:

In regard to a finding of fact recorded by an inferior tribunal, a writ of certiorari can be issued only if in recording such a finding, the tribunal has acted on evidence which is legally inadmissible, or has refused to admit admissible evidence, or if the finding is not supported by any evidence at all, because in such cases the error amounts to an error of law. The writ jurisdiction extends only to cases where orders are passed by inferior courts or tribunals in excess of their jurisdiction or as a result of their refusal to exercise jurisdiction vested in them or they act illegally or improperly in the exercise of their jurisdiction causing grave miscarriage of justice.

15. In its writ jurisdiction, the High Court should not ordinarily interfere with the proceedings duly commenced before a competent court of law until it finds that such court has acted without jurisdiction or in excess of the jurisdiction or that there is an error of law apparent on the face of the record None of these conditions is satisfied in the present case. In our opinion, interference by the High Court at this stage would tantamount in substance to preventing a cause to be tried in accordance with law. The writ petition in these circumstances is misconceived.

16. After hearing of the case was completed and the judgment was reserved, the learned Advocate-General while filing a chart of dates brought, it to our notice that the charge under Section 395/115, I.P.C. framed against the petitioner has been altered to one under Section 395/109 I P.C. and that the trial has already commenced on the altered charge. To this, strong objection was taken by the petitioner's counsel who filed a memo, with the prayer that 'The additional materials brought by the State after the hearing of the case should not be taken into consideration'. The altered charge is not the subject-matter of these petitions and we refrain from making any comment or expressing any opinion in respect of the same.

17. For the reasons stated above, we dismiss both the petitions but without any order as to costs.

Shankar, C.J.

18. I agree.


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