Shrimathi Champa etc. vs The State of Himachal Pradesh etc.

D.B. Lal, J.—This is an application u/s 561-A of the Code of Criminal Procedure, and the allegations are that one Itwari Lal, Respondent No. 2 has filed a complaint u/s 107 of the Code against the Petitioners for apprehension of breach of peace arising out of an incident dated 16-1-1969. According to Petitioners the contentions made in the complaint are that Itwari Lal, Respondent No. 2 was being threatened by the Petitioners and that there was danger of he being murdered by them. The complaint was filed on 14-2-1969, and the Magistrate drew up the preliminary order u/s 112 on 21-7-1969. The complaint was transferred to the Court of Magistrate at Kasumpti. According to the Petitioners this transfer order was without jurisdiction. It is stated that numerous hearings were held at Simla and finally the case was transferred to Solan. Although the incident is of 1969, yet no final order has been passed in the complaint. The case is not being listed for recording of evidence. At one stage the Sub-Divisional Magistrate even issued warrants of arrest against the Petitioners, although the Magistrate at Kasumpti had exempted one of the Petitioners from appearance in the Court. According to the Petitioners, all this was done at the instance of Itwari Lal. Since several years have elapsed, there is hardly any case of breach of peace and according to the Petitioners, the complaint is liable to be dismissed. At one stage the Magistrate called upon the police to make investigation and the report indicated that Itwari Lal was not a person of repute and was liable to "black-mail" the Petitioners. The grounds alleged for quashing the proceedings are, that no case is made out u/s 107, that no evidence has yet been recorded and undue harassment is caused, that several opportunities have been granted by the Magistrate to the Respondent to produce evidence, that despite exemption order the Petitioner No. 1 was once made liable to arrest and warrants were issued, and that the notice u/s 112 was invalid and could not be issued by the Court. On these grounds, it is submitted that this Court should hold that there has been abuse of the process of the Court and under its inherent jurisdiction the entire proceedings should be quashed.

Besides controverting the allegations made in the petition, the learned Counsel for the Respondents submitted that the Petitioners can very well go in revision under sections 435 and 439 and since the Code provides for adequate remedy elsewhere under specific provisions, Section 561-A will not be attracted. On this short ground it is submitted that the petition should not be admitted and should be rejected at a preliminary stage. In R.P. Kapur Vs. The State of Punjab, the position with regard to Section 561-A has been made clear by the Supreme Court. The inherent power of High Court u/s 561-A cannot be exercised in regard to matters specifically covered by the other provisions of the Code. The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of ustice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. Having regard to these principles set down by the Supreme Court, the present case is not of the type for which it can be stated that an abuse of the process of the Court has resulted. The Petitioners themselves have filed the cross complaint against Respondent No. 2 and as the learned Counsel submitted, the effort is being made to get dismissed the complaint of the Respondent and at the same time to keep alive the complaint of the Petitioners. As evident these are cross complaints u/s 107 of the Code and it would rather be just and correct that both the complaints should be disposed of together.

Whatever grounds have been alleged by the Petitioners, give a cause of action to him for revision under sections 435 or 439 and adequate remedy is provided in the Code; it would hardly be a case for exercise of inherent jurisdiction u/s 561-A. The Magistrate himself can drop the proceedings under sections 119 or 125 of the Code.

It is difficult to hold in these proceedings that the facts alleged in the complaint do not prove any case against the Petitioner, or that even a prima facie case was not made out against them for the preliminary order u/s 112. If several opportunities were given to produce evidence, the Magistrate had the justification to grant them. If there is any grievance, the Petitioner can get the proceedings transferred to some other Magistrate. It is also evident that the Petitioner No. 1 has not been arrested and so she should have no grievance on that account. The grounds alleged for transfer of case from one Court to the other are hardly relevant for a finding that the process of the Court has been abused or ends of justice have been defeated. The notice u/s 112 was issued as far back as in 1969 and the Petitioners could have instituted revisional proceedings to get it quashed, which they have not done.

I am, therefore, of the opinion that the jurisdiction of the Court u/s 561-A cannot be exercised, and the petition must be and is hereby dismissed.