P. Chiranjivi vs Principal, M. K. C. G. Medical College and Another

S.K. Ray, C.J.—This is an application u/s 482 of the Code of Criminal Procedure for quashing the criminal proceeding in case No. 2(C) C.C. 17 of 1972 pending in the Court of Shri K. B. Sahu, Judicial Magistrate, First Class, Berhampur after quashing the charges under Sections 177, 182 and 419 of the Indian Penal Code framed therein. This criminal case was initiated on the basis of a complaint filed by Dr. Sukumar Das in his official capacity as the Principal of M.K.C.G. Medical College. Berhampur. It is alleged in the complaint petition that the Petitioner secured his admission into the aforesaid medical college by producing a false declaration and a false nativity certificate to the effect that he is a permanent resident of Orissa while, in fact, he is not.

After taking cognizance against the Petitioner for offences under Sections 177, 182 and 419, Indian Penal Code, the Sub-divisional Judicial Magistrate. Berhampur transferred the case for disposal to Shri K.B. Sahu. Judicial Magistrate. First Class. Berhampur. The prosecution examined P.W. 1, Dr. Sukumar Das, and exhibited-I documents. Ext. 1 is the nativity certificate purportedly granted by the Tahsildar, Parlakimedi; Ext. 2 is the application form of the Petitioner, Ext. 3 is the declaration form of the Petitioner and Ext. 4 is the order of the Director of Health Services directing prosecution of the Petitioner. Thereafter the question of framing of charges was mooted in the Court of the Magistrate, the Petitioner contending that no prima facie case for framing charges had been made out on the evidence so far produced and the A.P.P. for the prosecution contending otherwise. Ultimately charges were framed by the order of the Magistrate dated 30-1-1976.

Being aggrieved by that order, the Petitioner moves the Sessions Judge, Berhampur for quashing the charges and directing that the Petitioner be discharged, in Criminal Revision No 16 of 1976(G). This revision was heard by the Additional Sessions Judge. Berhampur who dismissed it on the ground that the order of the Magistrate framing charges is an interlocutory order and that Section 397(2) is a bar to exercise of revisional power u/s 401, Code of Criminal Procedure. Being aggrieved by that order, the present revision application has been filed for the aforesaid reliefs.

A preliminary objection was raised by the learned Additional Standing Counsel that no second revision lay as the Petitioner had already moved the Sessions Judge invoking his power of revision against the very order of the Magistrate which is impugned in this revision. Secondly, it was contended that the order in relation to which the power of revision is sought to be exercised being an interlocutory order, this revision is not maintainable. These contentions are essentially based on Sub-sections (2) and (3) of Section 397, Code of Criminal Procedure.

It must be noticed that the revisional application to this Court has been filed u/s 482 of the Code of Criminal Procedure which provides that nothing in this Code (which would include Sub-sections (2) and (3) of Section 3(7) shall be deemed to limit or affect the inherent powers of the High Court. Thus, if a situation arises calling for exercise of this inherent jurisdiction of this Court, nothing in Section 397 bars such exercise. The Supreme Court in Madhu Limaye Vs. The State of Maharashtra, , has dealt with the ambit and scope of Section 182 Code of Criminal Procedure and has laid down the following principles:

(a) The bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court have no power of revision in relation to any interlocutory order.

(b) In such a case where the revisional power cannot be exercised, the inherent power of the High Court will come into play for the redress of the grievance of the aggrieved party. In cases where the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice, exercise of the inherent power of the High Court becomes imperative.

(c) If the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court, the High Court will refuse to exercise its inherent power.

(d) Cases of interference in exercise of inherent power of the Court should be few and far between and that such power should be exercised sparingly. It can be exercised in cases where it is desirable that a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction should be quashed.

(e) Inherent power should not be exercised as against the express bar of law en grafted in any other provisions of the Code.

Their Lordships of the Supreme Court have further proceeded to indicate the meaning of ''interlocutory order'' referred to in Sub-section (2) of Section 397, Code of Criminal Procedure. Their Lordships said:

...On the one hand, the legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of that power in relation to any interlocutory order. In such a situation it appears to us that the real intention of the legislature was not to equate the expression ''interlocutory order'' as invariably being converse to the words ''final order''. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in AIR 1949 1 (Federal Court) , but, yet it may not be an interlocutory order-pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, woe think that the bar in Sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397(2). It is neither advisable, nor possible to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two.

In the case of Mohan Lal Magan Lal Thacker Vs. State of Gujarat, , some tests for determining a final order as distinct from interlocutory order were culled out from some English decisions in the majority decision of Shelat, J. One of the tests is "If the order in question is reversed would the action have to go on?". Applying that test to the facts of the instant case, it would be noticed that if the plea of the Petitioner succeeds and the order of the Magistrate framing charges is reversed or quashed, the criminal proceeding initiated against him cannot go on. The finality of an order is not to be judged by correlating that order with the controversy in the complaint, viz., whether the Petitioner committed the offences charged against him therein. The fact that the controversy still remained alive is irrelevant. Applying the above principle to the present case, the order of the Magistrate is a final order, as opposed to an interlocutory order.

In view of my conclusion that the order of the Magistrate is a final order and that the jurisdiction that is'' invoked is u/s 482, Criminal Procedure Code, the preliminary objections of the learned Additional Standing Counsel have no substance.

One of the principles enunciated in Madhu Limaye Vs. The State of Maharashtra, that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed, was also laid down in the case of State of Karnataka Vs. L. Muniswamy and Others, . It has been further observed therein:

...The saving of the High Court''s inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a Court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects it would be impossible to appreciate the width and contours of that salient jurisdiction.

In the case of Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Mohan Singh and Others, , the Supreme Court considering the scope and ambit of the inherent power of the High Court u/s 561A of old Code of Criminal Procedure which is equivalent to Section 482 of the new Code of Criminal Procedure said that the High Court exercises its inherent power and makes such order as it deems fit to prevent abuse of process of Court or to secure the ends of justice having regard to the situation prevailing at the particular point of time when its inherent power is sought to be invoked. It upheld the order of the High Court quashing a long drawn out criminal proceeding which was hanging in the lower Court for four and half years without making any substantial progress and without establishing even a prima facie case on the ground of abuse of process of Court or for securing the ends of justice.

In the case of State of U.P. Vs. Kapil Deo Shukla, , the Supreme Court held that a criminal proceeding launched after a long lapse of time, in a case of ten years, from the date of alleged commission of offence, and a protracted trial for an inordinate length of time in a case of four and a half years are liable to be quashed in exercise of inherent power of the High Court on the ground of either abuse of process of Court or for securing the ends of justice. The reason for this doctrine was analysed in another Supreme Court case relevant passage from which was extracted and runs as follows:

We are not prepared to keep persons who are on trial for their lives under indefinite suspense because trial judges omit to do their duty. Justice is not one sided. It has many facets and we have to draw a nice balance between conflicting rights and duties. While it is incumbent on us to see that the guilty do not escape it is even more necessary to see that persons accused of crime are not indefinitely harassed. They must be given a fair and impartial trial and while every reasonable latitude must be given to those concerned with the detection of crime and entrusted with the administration of justice limits must be placed on the lengths to which they may go

In the instant case, the evidence so far adduced is the testimony of P.W. 1 - Dr. Sukumar Das, production of Ext. 1, the nativity certificate allegedly granted by the Tahsildar, Parlakimedi, the application form of the Petitioner, Ext. 2, and the declaration form of the Petitioner, Ext. 3. P.W. 1''s testimony that Ext. 1 is not a genuine document is merely hearsay and there is, accordingly, no proof that Ext. 1 is either a forged or fabricated document. Further, in the absence of the Tahsildar who granted Ext. 1, testifying that he did not grant it, it is premature even to hold prima facie that Ext. 1 is not a genuine document or that It contains a false averment. It has not even been proved that the Tahsildar who purports to have signed Ext. 1, is not the Tahsildar or that he has not signed it. In the circumstances, the statements of the Petitioner made in Exts. 2 and 3 which are obviously based on Ext. 1 can hardly be said to be false. Thus, the materials on record, if unrebutted, do not make out even a prima facie case against the Petitioner and do not constitute any reasonable basis for convicting the Petitioner of the offences with which he has been charged. . Framing of charges is clearly unjustified by the facts and circumstances of the case. Charges are, therefore, liable to be quashed.

The Petitioner is alleged to have committed the offences in 1964 when he took his admission into the Medical College, Berhampur on the basis of Exts. 1, 2 and 3. He completed his medical course and passed M.B.B.S. Examination in 1970. Two years thereafter, that is in 1972, the present complaint was filed. Thus, the structure of the prosecution is based on materials which came into existence eight years prior to filing of the present complaint. It took four more years to collect and adduce evidence and to frame charges against the Petitioner. In the meantime, two more years have gone by Petitioner has become in the meantime, a full-fledged doctor and no other blemish or criminal activity has been attributed to the Petitioner since the date of his admission into the college till now. As yet, no iota of evidence has been adduced that he manufactured or fabricated the nativity certificate, Ext. 1, or used it falsely knowing it to be untrue or false. To allow the criminal proceeding to continue further after a long lapse of time of fourteen years from the date of alleged commission of offence would amount to permitting a Court proceeding to degenerate into a weapon of harassment and would not, at this stage, achieve any salutary public purpose. On the facts and circumstances obtaining in the instant case, such continuance constitutes gross abuse of process of Court. It is, thus, imperative for securing the ends of justice that this criminal proceeding should no longer be allowed to stand.

I, therefore, in exercise of my inherent power u/s 482, Code of Criminal Procedure quash not only the charges under Sections 177, 182 and 419, Indian Penal Code but also the criminal proceeding in case No. 2(C) C.C. 17 of 1972 pending in the Court of Shri K. B. Sahu, Judicial Magistrate, First Class, Berhampur.

This petition is, accordingly, allowed.

Petition allowed.