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R.K. Vol GoldstaIn and anr. Vs. Stanley Haque - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Judge
Reported in1979CriLJ338
AppellantR.K. Vol GoldstaIn and anr.
RespondentStanley Haque
Cases ReferredMadhu Umaye v. State of Maharashtra
Excerpt:
- .....and one other for the offences under sections 454 and 448 i.p.c. on this complaint, the learned magistrate issued summons under section 448 i. p. c. thereafter, evidence offered by the complainant was recorded and ultimately after hearing the learned advocates of the parties the learned magistrate has framed charge against these two petitioners, as stated above, on 1st march 1975 and discharged th original accused no. 2.2. being aggrieved by this order of the learned magistrate, the present petitioners, against whom the charge has been framed, have approached this court in this revision.3. it appears that on 5-9-1975 this matter came up before a learned single judge of this court, and at the time of hearing before him a preliminary objection was raised to the effect that the.....
Judgment:

T.U. Mehta, C.J.

1. The learned Judicial Magistrate First Class, simla has framed charge against both the petitioners for the offence under S, 454, and the same Section read with Section 109, I. P. C. The respondent No. 1 Shri Stanley Haque, who is officiating Chairman of the Board of Governors of the Bishop Cotton School, filed a private complaint against the present petitioners and one other for the offences under Sections 454 and 448 I.P.C. On this complaint, the learned Magistrate issued summons under Section 448 I. P. C. Thereafter, evidence offered by the complainant was recorded and ultimately after hearing the learned Advocates of the parties the learned Magistrate has framed charge against these two petitioners, as stated above, on 1st March 1975 and discharged th original accused No. 2.

2. Being aggrieved by this order of the learned Magistrate, the present petitioners, against whom the charge has been framed, have approached this Court in this revision.

3. It appears that on 5-9-1975 this matter came up before a learned single judge of this Court, and at the time of hearing before him a preliminary objection was raised to the effect that the order of the learned Magistrate framing charge against the petitioners being an interlocutory order no revision application was permissible under Sub-section (2) of Section 397 of the Cr.P.C. The learned single Judge, finding that there was a decision of this Court given by a learned single Judge on this question which requires to be reconsidered, has referred this matter to the Division Bench. This is how this matter comes before this Bench.

4. Shri Bakshi, who appears on behalf of the respondent, has raised a preliminary objection to the effect that this application is not maintainable in view of the provisions contained in Sub-section (2) of Section 397 of the Cri. P. C, 1973, which states that the powers of revision conferred by Sub-section (1) of Section 397 shall not be exercised in relation to an interlocutory order passed in any appeal, enquiry or other proceeding. According to Shri Bakshi, the order of the Magistrate to frame the charge, as stated above, being an interlocutory order, this matter does not lie under Section 397 of the Code.

5. The petitioners have also invoked the provisions of Section 482 of the Cri. P, C. 1973, which saves the inherent powers of the High Court to make such orders as may be necessary to give effect to any order (under) the Code or to prevent abuse of the process of the court or otherwise to secure the ends of justice. With regard to this contention of the petitioners, Shri Bakshi contended that inherent powers of the High Court, contemplated by Section 482 of the Code, can-, not be invoked in view of the specific bar contained in Section 397 (2) of the Code.

6. Before going into the merits of the matter, we shall first dispose of the question whether an order to frame charge passed by a Judicial Magistrate can be construed as an interlocutory order, and can, therefore, be held to have been barred by Sub-section (2) of Section 397 of the Code. We find that on this question there are two specific decisions given by the Supreme Court, The first decision is found in Amar Nath v. State of Haryana reported in : 1977CriLJ1891 wherein the expression 'interlocutory order', as found in Section 397 (2) of the Code, has been interpreted. The Supreme Court has observed in that case that this expression merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties, and therefore, any order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court. The Supreme Court has further observed in this decision that orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial court cannot be said to be interlocutory orders so as to be outside the purview of the revisional jurisdiction of the High Court, In this decision the Supreme Court has referred to certain instances which could be taken as interlocutory order. For instance, the orders summoning witnesses, adjourning cases, granting bail, calling for the reports and such other steps in aid of the pending proceeding can, in the opinion of the Supreme Court, be considered interlocutory orders against which no revision application would lie. Applying this principle to the facts of the case under their consideration, the learned Judges of the Supreme Court in that case have held that the order of a Magistrate summoning the appellant was the one which was a matter of moment, because if the appellants of that case were not summoned they could not have faced the trial at all and by compelling their attendance to face the trial without proper application of mind the court could not be said to have passed an interlocutory order.

7. We find that the same question has again been considered by the Supreme Court in the case of Madhu Umaye v. State of Maharashtra reported in : 1978CriLJ165 . Therein the above referred decision given in Amar Nath's case has been reviewed by the Supreme Court, and the matter is discussed further in the light of various other decisions which have taken the view that if an order is not a final order it should necessarily be considered as an interlocutory order. In this latter case of Madhu Lunaye the Supreme Court has not approved of this view and has explained that all those orders which art not final orders cannot be considered to be interlocutory orders within the meaning of Sub-section (2) of Section 397 of the Cri. P. C. Speaking about that view, the Supreme Court has observed as under (at p. 170 of Cri LJ):

In our opinion if this strict test were to be applied in interpreting the words 'interlocutory order' occurring in Section 397 (2), then the order taking cognizance of an offence by a court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397 (1). On such a strict interpretation, only those orders would be re-visable which are orders passed on the final determination of the action but are not appealable under Chap. XXIV of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 18&8 Code.

While discussing other decisions on the question, the Supreme Court has observed that if the order under consideration is of the type which would end the proceedings if a particular view is taken, but would not put the proceedings to an end if the contrary view is taken it can legitimately be considered to be an order which does not fall within the meaning of the expression 'interlocutory order'. In this connection the following observations made by the Supreme Court are very much pertinent:

If a complaint is dismissed under Section 203 or under Section 204 (4), or the court holds the proceeding to be void or discharges the accused, a revision to the High Court at the instance of the complainant or the prosecutor would be competent, otherwise it will make Section 398 of the new Code otiose. Does it stand to reason, then, that an accused will have no remedy to move the High Court in revision or invoke its inherent power for the quashing of the criminal proceeding initiated upon a complaint or otherwise and which is fit to be quashed on the face of it? The Legislature left the power to order further inquiry intact in Section 398. Is it not then in consonance with the sense of justice to leave intact the remedy of the accuse ed to move the High Court for setting aside the order adversely made against him in similar circumstances and to quash the proceeding? The answer must be given in favour of the just and reasonable view expressed by us above.' Applying this test to the present casa what we find is that on the complaint filed by the respondent the learned Magistrate issued process, recorded evi-dence, heard the Advocates of the parties, and came to the final conclusion on the question whether charge under a particular section of the Penal Code should be framed or not. Had the learned Magistrate discharged the accused, the case would have come to an end. But in this case the learned Magistrate has not discharged the accused but has decided to frame the charge for a particular offence. That, in our opinion, would not make any difference in view of the above quoted excerpts from the case of Madhu Limaye.

8. Even otherwise, it is found that in this case the learned Magistrate has followed the procedure contemplated by the trial of the warrant cases. The Code prescribes this procedure in Chap. XXIX. Since this was the case in which the proceedings were instituted otherwise than on a police report, the procedure was controlled by Sections 244, 245 and 249 appearing in this Chap. XXIX. This procedure shows that the charge is to be framed under Section 246. At the time of framing the charge, the Magistrate has formulated an opinion on the question whether there was any ground for presuming that the accused has committed an offence triable under Chap. XXIX. This stage was, therefore, a quite distinct stage which determined the fate of the prosecution. The stage of framing charge in a warrant trial is a distinct stage which determines not only the fate of the prosecution but also the question whether the accused is liable to be proceeded further in the trial. If the Magistrate frames a charge then it would follow that further proceedings would be undertaken and the accused concerned would have to undergo further trial in criminal proceedings. There fore, this question as regards the framing of the charge finally decides the fate of a particular distinct stage in the course oil the trial and hence such a decision cannot be considered to be a decision amounting to an interlocutory order.

9. To conclude, therefore, we are of the opinion that the order framing a charge against the accused for a particular offence is not an order which is covered by Sub-section (2) of Section 397 of the Code and, therefore, the revisional powers of this Court to revise such an order is not barred.

10. As for the question whether the inherent powers of the High Court contemplated by Section 482 of the Code are barred by Section 397 (2) or not, the same does not arise to be considered in view of the fact that our finding is that in this case Sub-section (2) of Section 397 does not bar our revisional powers.

11. Then the question is whether we should exercise our powers of revision under S, 397 of the Cri. P. C. Now, powers under Section 397 of the Cr.P.C. can be exercised only with a view to satisfy ourselves as to the correctness, legality or propriety of the findings arrived at by the learned Magistrate.

12. We have gone through the evidence recorded in the case. To state shortly, the facts of the case are that there is an institution named Bishop Cotton School at Simla. One Shri A. C. Advani was, at the relevant time, working as Bursar (Treasurer) of this School. The petitioner Shri Goldstain was serving as the Headmaster of that School. It appears that some disputes arose as regards the management of the school. The case of the prosecution is that on 12th June 1974 Board of Governors of this School passed the Resolution No. 8 found at Annexure-PB by virtue of which the management of the School was taken away from the hands of the petitioner Mr. Goldstain and was handed over to the above referred Shri Advani who was appointed as the Administrator of the School. Before that, however, a civil suit was filed in the court of Senior Sub-Judge, Simla by Amritsar Diocesan Trust Association. This suit was filed against the petitioner Shri Goldstain and Ors. In that suit the learned Senior Sub-Judge passed an interim order on 2nd March 1974 by which the respondent Shri Goldstain and Ors. were restrain- ed from interfering or intermeddling directly or indirectly in the management and affairs of the institutions both educational and medical and other properties. They were also restrained from interfering with the functioning of the persons appointed by the plaintiff to act upon the Boards till the decision of the suit.

13. It is found that the Bishop Cotton School, which is one of the educational institutions, referred to in the interim order, was closed for summer holidays and reopened on 20th June 1974. On that day, the petitioner Shri Goldstain found that the office which was used by Shri Advani, the Bursar, was locked. It is said that that office contained cash and other record relating to the payment of fees by students. It is also alleged that this office of Shri Advani was not opened even after the School started with the result that many students and some of their parents had collected. The case of the prosecution is that the petitioner and one Shri Malaviya then forcibly opened that office by breaking up the lock given to it in breach of the above stated Resolution of the Board as well as in breach of the interim injunction granted by the Court. According to the prosecution this was done with a view to annoy and insult Shri Advani who was entrusted with the administration of the School by the Board.

14. The defence which is put forward by the present petitioners is that the petitioner Shri Goldstain continued to remain the Headmaster of the School and the Resolution passed by the Board to restrain him from the management was ultra vires and void. So far as the injunction order given by the court is concerned, the defence is that the Chairman of the Board whom the petitioner Shri Goldstain recognises had instructed him to disregard court's injunction. It is further stated that since Shri Advani did not open the office and since the school children and their parents had thronged at the gate, he opened the office by instructing his co-petitioner to break open the lock. This was, however, done in the interest of the institution because otherwise the institution would not have functioned on that day.

15. Thus, the defence of the petitioners is that they have acted with honest intention and not with any Intention to annoy or insult either Shri Advani or anybody else.

16. The learned Magistrate has, after appreciating the evidence recorded before her, come to the conclusion that the prosecution has produced the evidence which should be considered sufficient for framing of the charge.

17. Elaborate arguments were advanced to show that the petitioners are not proved to have broken open the lock given to the office with any intention to commit any offence or to insult or annoy or to intimidate any person in possession of the premises.

18. At this stage we are not expected to appreciate evidence to find out whether any offence Is in fact committed by the petitioners or not, Under Section 397 of the Code what we are expected to judge at this stage is whether the action of the learned Magistrate in framing the charge against the petitioners is correct, legal or proper. Now, Section 246 of the Code under which the charge is framed states that when on a private complaint the Magistrate records the evidence, the Magistrate is of the opinion that there is ground for presuming that the accused has committed an offence which the Magistrate is competent to try, the charge can be framed against the accused. Thus, according to the requirement of Section 246 there should be a ground or grounds for presuming that the accused has committed an offence. If any such ground is in existence, and if the charge is framed on. that ground, it cannot be said that the framing of the charge is incorrect, illegal or improper. The facts of the case show that the Board had passed Resolution ousting the petitioner from the management and appointing Shri Advani as the person who could administer the affairs of the School. Evidence also reveals that a competent court had passed an order of injunction restraining the petitioner Shri Gold-stain from interfering with the affairs of the School. If, under these circumstances, the petitioner Shri Goldstain and Ors., broke open the lock and entered into the office of Shri Advani it cannot be said that there was no ground for presuming that the petitioners had committed the offence for which the charge is framed. The other defence of the petitioner would undoubtedly be considered in. the further proceedings of the trial but in view of the above discussed evidence it is not possible to say that the evidence which is produced by the prosecution, if allowed to remain unrebutted, would not warrant his con- eviction as contemplated by Section 245 of the Cr.P.C. In that view of the matter we see no reason to interfere with the charge framed by the learned Magistrate.

19. Though the revision application raises many other points, these other points were not pressed by the learned Advocate of the petitioners and, therefore, we do not propose to discuss them.

20. The result, therefore, is that this revision application fails and the rule is discharged.

D.B. Lal, J.

21. I agree.


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