TaxTMI 
TaxTMI 
2009 (2) TMI 909
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....al of grievance to the aggrieved party is available by way of a revision petition under Section 397 of the Code. 2. Since both these Misc. Petitions filed under Section 482 of the Code relates to challenge to the order of taking cognizance and issuing process, therefore, they are being disposed-of by this common order. 3. In Criminal Misc. Petition No. 289/2006 filed by Sanjay Bhandari, learned Judicial Magistrate, Bhinder, Udaipur, took cognizance against him for the offences Under Sections 420 read with 120B IPC on 9.1.2006 on the basis of chargesheet filed by the SHO, P.S., Bhinder, Distt. Udaipur on the ground that the accused petitioner Sanjay Bhandari obtained a hotel Rajmahal at Bhinder from the complainant side on 9.11.2000 by way of an agreement for a period of five years on rent. In the name of this hotel business, the accused petitioner purchased number of valuable cars from foreign Companies but never used those cars for the hotel and sold the same to other persons, thereby he obtained tax relief on one hand in the name of tourism business, without being performed and on the other hand/committed theft of custom duty. The rent of the hotel was also not paid after s....
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....interlocutory order or further application by the same person respectively. In support of their contention, they have relied upon various pronouncements, which are hereinafter referred. 6. Before dealing with the ambit of both the Sections i.e. Section 397 & Section 482 of the Code, it would be worthwhile to reproduce them for the purpose of their applicability. 7. Section 397 of the Code reads as under: 397. Calling for records to exercise powers of revision.- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local 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, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. (2) The powers of revision conferred by Sub-section (1) shall not be exercised in relation ....
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....r Sub-sections (2) and (3) of Section 397 of the Code, then the only remedy available to the aggrieved party is by way of a petition under Section 482 of the Code within its four corners. But, if these two Sections are looked into In the light of the words used, Section 397 is confined to the extent of examining the correctness, legality or propriety of the order, whereas inherent powers can be exercised to give effect to any order given under this Code or to prevent abuse of the process of any Court or to secure the ends of Justice. 10. It is noticed rather shocking that in many of the cases, aggrieved parties are trying to approach the High Court in similarly situated cases either under Section 397 or under Section 482 of the Code as advised or both the remedies simultaneously through one or other party of the same case. For instance, this Court came with a situation when in a same case of framing charges on 22.8.06 against three accused Under Sections 420, 467, 468 read with 120B IPC, one of the accused Niranjan Kumar preferred a Misc. Petition Under Section 482 of the Code & another accused Avadh Bihari filed revision being S.B. Cr. Revision No. 1025/07 under Section 397 of ....
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....ction 203 of the Code is limited to the extent that if there are no sufficient grounds for proceeding, the magistrate shall dismiss the complaint and after Issue of the process or when the accused is brought before the court through police investigation, he is discharged, when the charge is groundless either under Section 239 of the Code or under Section 245 of the Code, from evidence, no case is made out, if unrebutted, would warrant his conviction or no sufficient grounds are made out under Section 227 of the Code. This commencement of proceeding or putting a person to face trial and discharge of the accused i.e. termination of proceedings of trial is termed as final order. Rest are said to be interlocutory orders. This view has been reiterated by the Hon'ble Supreme Court in Amamath v. State of Haryana reported in 1977 CriLJ 1891 in the following terms: ...It is difficult to hold that the impugned order summoning the appellants straightaway was merely an interlocutory order which could not be revised by the High Court under Sub-sections (1) and (2) of Section 397 of the 1973 Code. The order" of the Judicial Magistrate summoning the appellants in the circumstances of....
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....tion 500 IPC before the Court of Sessions Judge, Greater Bombay, in pursuance to the sanction issued by the State Govt. under Section 199 of the Code for making defamatory press note against the then Law Minister Maharashtra Shri A.R. Antulay. Learned Sessions Judge took cognizance and process was issued upon the said complaint. The Chief Secretary to the Govt. of Maharashtra was to be examined as a witness to prove the sanction but the appellant Shri Madhu Limaye filed an application before the learned Sessions Judge to challenge the legality of the trial. The learned Sessions Judge rejected the application and framed charge Under Section 500 IPC. The appellant thereafter challenged the order by way of revision in the High Court Under Section 397 of the Code. The High Court dismissed the revision without entering into the merits of the case by holding that the order being interlocutory in nature, it was not maintainable in view of the provisions contained in Sub-section (2) of Section 397 of the Code. Against this, the appeal was preferred. While discussing the scope of interlocutory order, the Hon'ble Supreme Court observed in para 13 as under: ...On the one hand, th....
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.... 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 accused 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. Accordingly, the Hon'ble Supreme Court allowed the appeal and remanded the case back to the High Court for disposal on merits in the light of the above judgment. 15. Apart from laying down the three principles as referred-to above with regard to exercise of inherent powers Under Section 482 of the Code, the Hon'ble Supreme Court also relied upon its earlier judgment in R.P. Kapur v. The State of Punjab reported in 1960 CriLJ 1239 , wherein the Hon'ble Gajendragadkar J., as he then was, laid down three categories of cases, wherein inherent powers Un....
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....ill be a review of its earlier order, which is not warranted under the Code as the process is issued under Section 204 of the Code when complaint is not dismissed under Section 203 of the Code. Opposite earlier view taken by the three Judges Larger Bench in K.K. Mathew v. State of Kerala and Anr. reported in 1992 CriLJ 3779 was held not to be a correct law by holding that in the absence of any review power or inherent power with the subordinate courts, the remedies lie in invoking Section 482 of the Code. Issue relating to scope of Section 397 of the Code was also not involved in this cited case as well. 19. On the applicability of Section 482 of the Code despite there being alternative remedy under Section 397 of the Code, leaned Counsel for the petitioner has cited the latest decision of Dhariwal Tobaco Products Ltd. v. State of Maharashtra decided by the Hon'ble Supreme Court on 17.12.08 in Criminal Appeal No. 2055 of 2007 (Arising out of SLP (Cri.) No. 2272 of 2007). This was a case under the Prevention of Food Adulteration Rules, 1955, wherein a criminal complaint against a Company was filed, which was dealing in the manufacturing of the v Gutkha' having multiple Un....
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....gnizance is final one, not; being an interlocutory order. The revision can very well be maintained before the learned Sessions Judge as held by this Court in Natwarlal v. State reported in 2008(1) CriLR (Raj) 617. 22. This Court could have exercised the power under Section 482 of the Code, had there been a case from the perusal of the complaint that the action of taking cognizance is without jurisdiction or barred by law, which has resulted in abuse of the process of law or is necessary to secure the ends of justice, specially when affected party for one or the other reason could not resort to the remedy available Under Section 397 of the Code. The legality or correctness of the order in appreciating evidence for the purpose of taking cognizance and charge is purely a subject matter of examination under Section 397 of the Code. 23. Likewise, the duty of superintendence under Section 483 of the Code is; confined only to the extent of expeditious and proper disposal of cases. Duty cast upon the High Court under this Section is alike of an administrative nature, which can be read with the inherent powers under Section 482 of the Code, being a saving provision where there is no o....