Tarkeshwar Singh vs The State of Bihar and Others

Shiva Kirti Singh, J.—Heard learned counsel for the petitioner, learned counsel for the State and learned counsel appearing for the respondent No. 2, the informant. The last order dated 27.1.05 records the fact that petitioner was granted an opportunity to convert this application into one u/s 482 of the Code of Criminal Procedure but that offer was declined. This court finds that the impugned order passed by the trial court was under the conspectus of the Code of Criminal Procedure and since petitioner has statutory alternative remedy hence this petition will not be permitted to be maintained under Article 226 of the Constitution of India. Learned counsel for the petitioner opted that this petition be confined to Article 227 of the Constitution of India. The matter has been heard thereafter treating his petition to be under Article 227 of the Constitution of India only.

On the earlier date this court was given an impression that the impugned order dated 11.1.05 contained in annexure-11 is an order u/s 319 of the Code of Criminal Procedure pursuant to which petitioner has been summoned to face trial but after hearing the counsel for the other side it is clear that by order dated 11.1.05 the trial Court has only expressed its inability to review or recall the order dated 5.9.03 (Annexure-9) pursuant to which non-bailable warrant of arrest was issued against the petitioner. It further appears from order dated 25.6.04 passed in Cr. Misc. No. 27958/03 as contained in annexure-10 that petitioner''s application u/s 482 of the Code of Criminal Procedure seeking quashing of order dated 5.9.03 passed in exercise of power u/s 319 Cr. P.C. by the trial court (6th Addl. Sessions Judge, Saran at Chapra) in S.T. No. 62/2000 was rejected after due consideration of points raised. The said order dated 25.6.04 was challenged by the petitioner before the Supreme Court of India through Special Leave to Appeal (Cr.) No. 3910/04 which was dismissed on 10.9.04. That order has been brought on record by the informant (respondent No. 2 as Annexure-A to his counter affidavit.

In course of arguments learned counsel for the petitioner, Mr. S.B.K. Mangalam very fairly accepted that in substance the challenge of the petitioner was to the same order dated 5.9.03 as contained in annexure-10 but he tried to show that this time the challenge is on the basis that there is no sufficient evidence for summoning the petitioner u/s 319 of the Code of Criminal Procedure whereas u/s 482 Cr. P.C. The challenge was on certain technical grounds only.

When the petitioner had moved this court u/s 482 Cr. P.C. to challenge the order dated 5.9.03 and lost the battle up to Supreme Court, in the opinion of this court it would be against public policy to permit him to challenge the same order through a petition under Article 227 of the Constitution of India. The power of superintendence over subordinate courts or authority under Article 227 of the Constitution of India shall not be available to this court when the impugned order has already been challenged by the petitioner before this court as well as before the Apex Court unsuccessfully. In deference to learned counsel for the petitioner it is recorded that he placed reliance upon two judgments of the Apex Court:-

(i) Surya Dev Rai Vs. Ram Chander Rai and Others, .

(ii) Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, .

The relevant parts of those judgments of the Supreme Court lay down the law relating to scope of Article 227 of the Constitution of India. They emphasise that this power is discretionary and must be exercised sparingly. In the facts of the case, this court finds no merit in this petition under Article 227 of the Constitution of India, hence the same is dismissed.