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Raghuvansh Kumar Vs. Madan Lal Sharma and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 17 of 1973
Judge
Reported in9(1973)DLT422
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 112, 439 and 561A; Constitution of India - Article 227
AppellantRaghuvansh Kumar
RespondentMadan Lal Sharma and ors.
Advocates: S.C. Bhuttan,; Malik,; Vijay Kishan and ;
Cases ReferredVeera Ramayya v. Udayagiri Venkata Seshavatharam
Excerpt:
.....cause against the action proposed. malik for the petitioner, challenged the validity of the said rule in the light of article 131 of the limitation act, 1963, which prescribes a period of 90 days for applying to any court for exercise of revisional powers under the code of criminal procedure, 1898 as well. has discussed the cases at length and observed that though law is good, justice is better. udayagiri venkata seshavatharam, only amount to this that the court will not deviate from the practice except on special, exceptional or extraordinary grounds ;when there are no such grounds the fact that a revision has been admitted by the court could not make any difference in the enforcement of the rule of practice, for the parly concerned with open eyes ignored such a practice and filed a..........revise orders of original courts in nonappealable iases except where the copy of the order of the sessions judge or the district magistrate, as the case may be, refusing to make such a recommerdation is filed. it seems unesless for the petitioner to invoke section 439 cr. p.c. in this case because the order under section 112 cr. p.c. is patently illegal and could be quashed even by invoking the power under section 561-a cr. p.c. and/or article 227 of the constitution. a court cannot decline to lake action under article 227 of the constitution on the ground of the existence or an alternative remedy unless such remedy can by itself be directly effective. merely resorting to the sessions judge or the district magistrate for making a recommendation to this court under section 438 cr. p.c......
Judgment:

S. Rangarajan, J.

(1) This isa Petition invoking jurisdiction of this Court under Section 561-A Cr. P.C. and Article 227 of the Constititution for quashing and setting aside the proceedings taken by the Sub Divisional Magistrate (Shri A. S. Awasthi) under Sections 107, 112 and 117 Cr. P.C.

(2) The first respondent (Madan Lal Sharma) presented a petition to the Sub Divisional Magistrate on 22nd December, 1972; this petition was addressed to the Minister of State for Home Affairs. It contained allegations to the effect that two persons, who were Partners of a firm, were engaged in the quarrying of Jarnuna sand and had become inimical to Madan Lal Sharma (1st Respondent) on account of opposing the quarrying rights granted to said Partnership firm. The complaint was that on 23rd September. 1972 some persons pounced upon the first respondent when he was getting Into his car, assaulted him and threatened to kill him. An allegation was made that the present petitioner (Raghuvaosh Kumar) was responsible for the same. the police was said to be reluctant to take action in the matter. Upon receipt of the said Petition the Sub Divisional Magistate passed an order on the same day in the following terms :

'APPLICATIONgiven to me today personally, the applicant heard. He has been asked to bring witnesses on 27th December, 1972.'

ON27th December, 1972 the first respondent presented himself along with two other witnesses (Ram Chand and M P. Patreja). Afterrecording their statements the Sub Divisional Magistrate passed an order on the 27th itself in the followng terms

'I have gone through the statements given by Ram Chand (2) M.P. Patreja (3) Madan Lal are am. satisfied that there are genuine grounds for proceedings unde Section 107 Cr. P.C. against (1) Sis Ram, (2) Bal Kishan (3) Bharat Singh (4) Jagdish (5) Raghubans Kumar (6) Niannatullah They are thereforee summmoned for 12th January, 1973. Along with summons should accompany a notice u/s 112 Cr. P.C. asking respondents to show cause as to why they/he should not furnish a personal bond for Rs. 5.000.00 with the surety in the like amount for keeping good conduct and behavior for a period of one year'

AFTERthe receipt of the summons for 12th January, 1973, the present petitioner appeared in the said Court and he was asked to execute a bond for personal appearance in the sum of Rs. 5.000.00 with one surety, which be did. Section 112 Cr. P.C. reads as follows :

'WHENa Magistrate acting under section 107, section 108, section 109 or section 110 deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the terms for which it is to be in force, and, the number, character and class of sureties (if any) required.'

(3) The above and the other relevant provisions of law were considered by the Supreme Court recently in Madha Limaye v. Sub-Divisional Magistrate, Monghyr. Hidayatullah. C. J. observed a? follows :

'THEprocedure begins with Section 112. It requires that the Magistrate acting under Section 107 shall make an order in writing, setting forth the substance of the information received, the amount of the bond, the term for which it is to be in force and the number, cheracter and class of sureties (if any) required. Since the person to be proceeded against has to show cause, it is but natural that he must know the grounds for apprehending a breach of the peace or disturbance of the public tranquillity at his hands.. Although the section speaks of the substance of the information' it does net mean the order should not be full. It may not repeat the information bodily but it must give proper notice of what has moved the Magistrate to take the action. This order is the foundation of the jurisdiction and the word 'substance' means the essence of the most important parts of the information.'

Bhargava, agreed with the order made by Hidayatullah, C. J. (with whom the others comprising the Bench concurred) except to differ regarding the interpretation of Section 117(3) Cr. P. C. (with which we are concerred in this case). Bhargava, J also pointed out that the information contemplated by Section 107 Cr. P. C. may be received from the Police or on a private complaint ; in the later case he was bound, however, to bold some enquiry hmself or to have an enquiry made through the Police, so that he may be able to form a correct opeinion as to the existence of sufficient grounds for proceeding. But in whatever way the Magistrate makes the older he has when making the order, to record in writing the substance of the information received which necessarily means the part of the information which was the basis of his information that sufficient grounds exist for initiating proceedings.

(4) In the present case the Magistrate was not acting on the basis of any information laid by the Police but on the complaint, addressed to the Minister of Stale for Home Affairs though handed over to the learnesr Magistrate, by the first respondent The learned Magistrate recorded the statements not only of the first respondent but also two other witnesses

(5) Hegde, C J. (as his Lordship then was) pointed out in Balraj Madhak v. The Union of India., that an order under Section 112 Cr. P. C is the very basis of a proceeding under Chapter Viii of the Code and that it should be made in writing setting forth the particulars of the information received. The Legislature in its wisdom required the substance of the information to be set out not only to enable the person or persons concerned, against whom such proposed action is to be taken to know what is stated against them but also to ensure that the Magistrate writes a speaking order setting out the objective facts on the basis of which be is satisfied about the existence of necessity to require a person or persons to show cause against the action proposed.

(6) Dua, C. J. (as his Lordship then was) followed the above-said view in Banarsi Lal v. Smt. Neelam , printed out that compliance with the requirements of Secti

(7) In Tara Chand v. The State Jagjit Singh.J. also pointed out that the powers conferred on the Magistrate in respect of prevention of offences under Part Iv of the Code of Criminal Procedure are of Judicial character and it is necessary to exercise them in a judicial manner and in conformity with the requirements of law. The Magistrate could not play with the liberty of the people on the pretext of taking preventive action. In the order to be made under Section 112 Cr. P. C. the substance of the information received has to be set forth.

(8) In view of the observations of the Supreme Court in Madhu Limsye's case and in the cases decided by this Court there is no need to notice the decisions of other High Courts. There is no force at all in Shri Sital A K. Dar's attempt to distinguish Madhu Limaye's case on the ground that the petitioner, in that case, was in custody whereas in the present case the petitioner was not, since he had ex exuted a bond because a person on trial is not a free person. In proceedings intiated under under Section 112 Cr. P. C. taking an interim bond from the person against whom similar actione is being taken is the equivalent of releasing him on bail. In other words fetters are placed on his liberty by the bond.

(9) It is thus clear that the impugned order under Section 112 Cr. P.C. is not one made in accordance with the requirements of the said section which are mandatory. The order has to be and is hereby quashed.

(10) It only remains to notice two further argument of Shri Sital A.K.Dar, learned counsel for the first respondent : Firstly. the laid order could be quashed, if at all, only under Sections 435 and 439 Cr. P.C. but not under Section 561-A Cr. P C. or Article 227 of the Constitution. In other words, the petitioner should in the first instance move the Sessions Court and can move this Court only if it refused to make a recommendation to the High Court under Section 438 Cr. P.C. According to Rule 3 of Chapter 1-A (n). Vol. V of the Rules and Orders of the Punjab High Court the Deputy Registrar is not to receive a petition to revise orders of original Courts in nonappealable iases except where the copy of the order of the Sessions Judge or the District Magistrate, as the case may be, refusing to make such a recommerdation is filed. It seems unesless for the petitioner to invoke Section 439 Cr. P.C. in this case because the order under Section 112 Cr. P.C. is patently illegal and could be quashed even by invoking the power under Section 561-A Cr. P.C. and/or Article 227 of the Constitution. A Court cannot decline to lake action under Article 227 of the Constitution on the ground of the existence or an alternative remedy unless such remedy can by itself be directly effective. Merely resorting to the Sessions Judge or the District Magistrate for making a recommendation to this Court under Section 438 Cr. P.C. cannot be said to be that kind of alternative remedy which the aggrieved party must be compelled to resort to on pain of his application under Article 227 of the Constitution being dismissed. Similar considerations will apply even to an application under Section 561-A Cr, P.C.

(11) The scope of Section 561-A Cr. P.C. has been explained by the Supreme Court on more than one occasion. In R. P. Kapur v State of Punjab, the Supreme Court pointed out that the inherent power of the High Court under Section 561-A Cr. P.C. cannot be exercised in regard lo matters specifically covered under any other provision of the Code and that the same must be utilised to quash proceedings in an appropirate case either to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Gajendragadkar, J. (as his Lordship then was) referred to the following cases, namely, of absence of re quisite sanction, the allegations made in the Fir or the complaint not constitiuting the offence alleged even when taken at their face value, even in Cases where the allegations constituted an offence if there was no legal evidence adduced in support of charge where interference under Section 561-A Cr. P. C.is permissible.

Ray, Speaking for the Supreme Court in Rajendra Nath Mahato v. T. Gangooly, Deputy Superintendent of Police, pointed out one limn. viz., that of the High Court not being able under Section 561-A Cr. P.C to examine whether there is sufficient legal evidence in support of the order or finding; the interference by the High Court by way of quashing the order issuing process under Section 204 Cr P.C. by a Magistrate other than the one who had taken cognizance of the offence was upheld. There seems to be Bo reason, thereforee, to compel the petitioner to approach the Sessions Court under Section 438 Cr. P.C. because a Sessions Judge could, it at all, make no more than a mere recommendation to the High Court to quash the order under Section 112 Cr. P.C. and cannot pass any final order concerning the same himself.

(12) In this view there is no need in this case to go into the validity of Rule 3 of Chapter 1-A(b), Vol. V of the Rules and Orders of the Punjab High Court, which is being currently followed by this Court. The same reads as follows :-

'ASregards petitions under section 436 and section 439, Criminal Procedure Code, the Deputy Registrar will not receive petitions for revision of orders of original Courts in non-appealable cases, unless the applicant files with his petition a copy of the order of the Sessions Judge or District Magistrate. as the case may be, to show that he has applied to one or the other and his petition has been refused. The Sessions Judge or District Magistrate can release a prisoner on bail or suspend a sentence pending a reference to the High Court.'

(13) Shri Vijay Kishan, who appeared along with Shri S.C. Malik for the petitioner, challenged the validity of the said Rule in the light of Article 131 of the Limitation Act, 1963, which prescribes a period of 90 days for applying to any court for exercise of revisional powers under the Code of Criminal Procedure, 1898 as well. from the dale of the order sought to be revised. The above Rule was framed before 1963, when there was no statutory period of limitation for filing criminal revisions. It is urged that if the Deputy Registrar of this Court is by reason of the said Rule required not to receive petitions for revisions under sections 436 and 439 Cr. P.C. except when the petitioner has applied to one or the other of the courts below mentioned in the said Rule and the same application has been refused it is just likely that the petitioner may have to spend more than the period of 90 days fixed by Article 131 of the Limitation Act, 1963 and may be out of time for filing a revision in this Court and would be at least exposed to the risk of having to invoke Section 5 of the Limitation Act to get the delay in filing the revision petition in this Court excused. Whatever may be the position when the party concerned himself voluntarily avails himself of the enabling provision (Section 438 Cr. P.C.) whether there is justification in the matter of this Court compelling a party to apply to the Sessions Judge or the District Magistrate In revision has to be seriously considered if the question arises.

(14) The decision of the Kerala High Court in S. Narayanan v. Kannamma Bhargvi contains certain observations based on the import of Article 131 of the limitation Act, 1963, on the practice of some High Courts in ensuring that revisions shall be filed in the first instance to the Sessions Judge or the District Magistrate, even in cases where they cannot make an effective order themselves but only make a recommendation under Section 438 Cr. P. C. An effective order can be made then only in cases falling under Section 439 Cr. P. C. It is, however, needless to pursue this discussion any further because the validity of the said Rules dees not fall for consideration in the present proceedings in the view taken by me. Nor is it necessary, in the said view, to discuss the decision of V. D. Misra, J. based upon the said Rule in vijay Pat v. The State I may only state that such a contention based upon Article 13l of the Limitation Act was not advanced before V. D. Misra, J. and section 561-A was also not invoked. If any decision in this case had to be reached involving the consideration of the validity of the said Rule I would have considered it necessary to place the matter before my Lord the Chief Justice for the consutution of a larger Bench to decide the validity of the said Rule and the decision of V. D. Misra, J based on the said Rule. But in the view 1. have taken the said course is not necessary I thereforee, refrain from expressing any opinion on that question. Besides the validity of the said Rule is not a matter which need necessairly be considered judicially; it is open to this Court itself to revise the said Rule in exercise of its rule making power.

(15) It has been urged that it will not be proper for me to dismiss the revision petition which has been admilled on the ground that the petitioner has not moved the Sessions Judge or the District Magistrate under Sections 436 and 439 Cr. P. C. The petition to revise the impugned order having been admitted and the concerned parties having been beard it would not be proper to dismiss it on the ground that the Sessions Judge or the District Magistrate has not been moved. Shri S. C. Malik has cited a number of authorities in support of this position ; it will be sufficient to refer only to a few of them : Chokat Ahir v. Suraj Singh, Municipal Board v. Bhim Singh, Suraj Bah v. Empetor, and Bon Behiri Mondal v Bhusan Chandra Barui in the last of them N. C. Talukdar, J. has discussed the cases at length and observed that though law is good, justice is better. even as distinct from a rule of law, be obsereved, that it cannot be allowed to over ride the latter and be her jealous mistress, the practice being nothing more than the palladium of justice. This approach, with respect seems to have force. The observations of Subba Rao, Chief Justice (as his Lordship then was) in Veera Ramayya v. Udayagiri Venkata Seshavatharam, only amount to this that the Court will not deviate from the practice except on special, exceptional or extraordinary grounds ; when there are no such grounds the fact that a revision has been admitted by the Court could not make any difference in the enforcement of the rule of practice, for the parly concerned with open eyes ignored such a practice and filed a revision directly in the High Court. There is no scope for the application of such a principle in the present case having regard to the above discussion. This Court has been approached under Section 561-A Cr. P. C and Article 227 of the Constitution both of which could properly be invoked by the petitioner in this case.

(16) Secondly, Shri Sital A.K Dar referred to the fact that excepting the present petitioner respondents 3 to 7 who had not even been served by the Magistrate. It is needless for me to say anything regarding this because I am merely concerned to point out that the order as it has been drawn up under Section 112 Cr. P.C as against the present petitioner does not comply with the mandatory provision of Section 112 Cr. P.C. and hence has to be quashed. It follows that if the same kind of order has been passed (in similar terms) in regard to the other respondents also it will also be bad, even though they have not moved this Court, If the order is in different terms against respondents 3 to 7 and that is sufficient compliance with law it will follow that nothing that nothing that is staled in the order would affect the validity of such an order. It is needless to lay more about this aspect of the matter since the petitioner alone has moved this Court be means of this petition and the province of this Court is merely to point out that the order which has been drawn up under Section 112 Cr. P. C. in the terms stated above is an order which fails to comply with the mandatory provision of Section 112 Criminal Procedure Code and is hence bad. The said order is accordingly quashed.

(17) It follows that the learned District Magistrate, Delhi will forward the 1st respondent's complaint to a competent Magistrate other than Shri A. S Awasthi for being dealt with according to law. The 1st respondent will appear before the District Magistrate on 10th May, 1973.


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