1. The accused was charged with misappropriation of paddy worth about Rs. 200. Summons was issued to him and he now moves the High Court and asks that the proceedings before the Magistrate should be quashed.
2. The learned Public Prosecutor has contended that the High Court has no power to interfere with the proceedings of a Magistrate in a pending trial. Whether this contention is correct depends upon the interpretation of Sections 435, 438 and 439 of the Criminal Procedure. Code.
3. Under Section 435 the High Court is empowered to call for and examine the record of any proceedings before any inferior Criminal Court, situate within the local limits of its jurisdiction, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court. The section thus does not deal merely with 'finding, sentence or order' but with proceedings generally and the power of the High Court extends to calling for and examining the record of any proceedings for the purpose of satisfying itself as to the regularity of such proceedings.
4. Under Section 438, the Sessions Judge or District Magistrate may, on examining the record of any proceedings, report for the orders of the High Court the result of such examination.
5. Then comes Section 439. It provides that in the case of any proceeding, the record of which has been called for by the High Court or which otherwise comes to its knowledge, it may, in its discretion, exercise any of the powers conferred on a Court of Appeal by certain sections of the Code. The learned Public Prosecutor contends that none of the sections specified in Section 439 gives the High Court power to set aside or quash proceedings in a pending suit. The answer is simple. The sections dealing with the powers of a Court of Appeal necessarily deal with those orders only from which under the Code there is an appeal provided. With reference to such orders, the sections lay down the powers of a Court of Appeal. Ex-hypothesi the revisional powers of the High Court are invoked when no right of appeal exists, and, although in some cases the High Court may, by exercising the powers conferred on a Court of Appeal, be able to correct an error, it does not follow, having regard to the variety of orders or proceedings which it may be called on to revise or deal with in its revisional jurisdiction, that it can, by exercising those powers only, redress a wrong or do complete justice. In other words, Section 439 does not say that the High Court shall exercise only those powers that are conferred on a Court of Appeal, but on the other hand it enacts that among the powers possessed by the High Court are the powers conferred on an Appellate Court. The sections dealing with the powers of an Appellate Court necessarily describe and define the powers of the Court with reference to orders that are appealable. The legislature in enumerating the powers of the Court of Appeal had before its mind only a certain class of orders and in the very nature of things that enumeration cannot be found complete or exhaustive when the Court is called on to deal with orders of a different kind, orders not in the contemplation of the legislature when it was defining the powers of a Court of Appeal.
6. I am therefore of the opinion, on a construction of the sections of the Code, that the High Court has power at any stage to quash or set aside proceedings.
7. The authorities on the point support this view; indeed there is not a single reported case which supports the contention of the learned Public Prosecutor.
8. The circumstances which will justify the interference of the High Court have not been and cannot be laid down with precision. While the Judges repeatedly held that only when exceptional grounds exist the High Court ought to interfere, the decided cases show that no hard and fast rule can be laid down but that when in the interests of justice the High Court's intervention became necessary, it was not refused.
9. In Chandi Pershad v. Abdur Rahman I.L.R. (1895) Calc. 131 Jagat Chandra Mozumdar v. Queen-Empress I.L.R. (1899) Calc. 786 and In re Kuppuswami Aiyar I.L.R. (1916) Mad. 561 the High Court quashed proceedings after a charge had been framed.
10. In Hari Charan Gorait v. Girish Chandra Sadhukhan I.L.R. (1911) Calc. 68 Queen-Empress v. Nageshappa I.L.R. (1896) Bom. 543 and Thakaria v. Puran Singh (1922) 67 I.C. 589 the High Court interfered upon the issue of summons to the accused.
11. In Queen Empress v. Jagan Singh (1892) 12 A.W.N. 103 and in Chadha v. Emperor (1910) 14 A.L.J. 851 the High Court's intervention was sought for setting aside proceedings even at an earlier stage. The orders which the Court was requested to revise were to show cause why sanction should not be accorded for prosecution for forgery and perjury respectively.
12. Choa Lal Dass v. Anant Pershad Misser I.L.R. (1898) Calc. 233 is an instance where the High Court refused to exercise this power. But the learned Judges even there observed that the High Court undoubtedly had the power to interfere in any case and at any stage of it.
13. In some of the cases mentioned above, the proceedings were set aside on the ground that the facts alleged did not in law constitute the offence with which the accused had been charged. In other cases, evidence was examined and probabilities were discussed and the High Court set aside the proceedings on the ground, that it was not in the interests of justice that the proceedings should be allowed to continue.
14. In the four Calcutta cases and the Bombay case the decision in each was that of a Bench of two Judges.
15. The view I have taken of the sections of the Code is thus borne out by the authorities to which I have referred.
16. The question then remains to be decided with reference to the facts of the present case: Is the interference of the High Court justified? There is a Kattalai attached to the Madura Devastanam known as Nagappa Chetti Kattalai. The family of the accused had made the endowment. In 1915 a suit was filed for the settlement of a scheme in respect of this Kattalai. In 1917, Venkatachallam Chetty, the brother of the accused, filed a suit for partition of the family property and management of the villages that formed the subject of the endowment. In February 1921 the High Court finally decided in the partition suit that the accused was to be a trustee of the Kattalai and, immediately after, he got possession. In the other suit, the suit brought to settle a scheme, a scheme was settled on the 5th August 1921 and by it the trustee (the accused) was directed to submit yearly accounts, which were to be duly audited, and the balance in the trustee's hand was to be paid to the Manager of the Madura Devastanam. The complainant is one Alagappa Chetty, the Receiver appointed in respect of that Devastanam. It is alleged that after the accused obtained exclusive possession of the property he passed two receipts to tenants, dated the 20th of March 1921 and 26th of March 1921, showing that a certain amount of paddy was received by him but that the account books maintained for the Kattalai show that the quantity of paddy received was much less. The difference is worth about Rs. 200 and odd and the charge is that the accused misappropriated paddy worth this amount.
17. In accordance with the decree settling the scheme, the accounts for the fasli, corresponding to 1921, were filed by the accused. The auditor went through the accounts and submitted his report to the Court. Objections were filed to the report both by the accused and Alagappa Chetty. On the 6th of March 1923 the Subordinate Judge made an order in effect disallowing the objections of Alagappa Chetty in regard to the alleged difference in the quantity of the paddy referred to above. Alagappa Chetty has filed no appeal against that order. But the accused himself has filed one challenging it in so far as it was against him. While this appeal was pending, on 3rd December 1923 Alagappa Chetty gets a clerk of his to file the complaint and the summons was issued on 12th December 1923.
18. Mr. C.S. Venkatachari for the accused has contended that the complaint was malicious and that the order of the Subordinate Judge was in his favour and with a view merely to harass his client the Receiver got the present complaint filed on account of private misunderstandings and spite. There are several proceedings before the High Court now which clearly show that Alagappa Chetty and the accused are on inimical terms and it is extremely probable that Alagappa Chetty is actuated by personal motives and that the prosecution has not been launched in the public interest. The receipts were given in March 1921. The Subordinate Judge's order was made in March 1923 and it is about nine months subsequent to it that the complaint was filed. It was open to Alagappa Chetty to place all the materials he could before the Subordinate Judge and he now pretends that he did not do so. His vakil says that although on this particular point the order of the Subordinate Judge was against him, he may be able to support the order generally in the appeal that is pending by showing that his client is entitled to this particular amount which has been disallowed by the Subordinate Judge. Thus the matter is still in controversy between the parties in the Civil Courts and these facts lead to the inference that the prosecution is not bona fide. But the allegations made in the complaint if proved will constitute the offence of misappropriation. The materials on which either side may rely have not been placed before me and I am not in a position to say that the complaint is false. It may be that the motive of the complainant in preferring the charge may be bad, but it does not follow that the proceedings for that reason should be quashed. I am not therefore prepared in the present case to set aside the proceedings wholly, but I think it is pre-eminently a case where the proceedings should be stayed pending the disposal of the appeal before the High Court (A.A.O. No. 314 of 1923) from the order of the Subordinate Judge. I accordingly make an order staying the proceedings pending the appeal. At this stage no further order will be necessary.