Punjab State Warehousing Corporation Faridkot vs M/S Sh. Durga Ji Traders & Ors

CRIMINAL APPEAL NO. 2226 OF 2011

(Arising out of S.L.P. (Criminal) No. 5305 of 2008)

PUNJAB STATE WAREHOUSING -- APPELLANT

CORPORATION FARIDKOT

VERSUS

M/S SH. DURGA JI TRADERS & ORS. -- RESPONDENT

S

O R D E R

1. Leave granted.

2. This appeal, by special leave, arises from judgment dated 18th

February, 2008 rendered by a learned Single Judge of the High Court

of Judicature for the States of Punjab and Haryana at Chandigarh. By

the impugned judgment, the learned Single Judge has dismissed the

petition preferred by the appellant under Section 482 of the Code of

Criminal Procedure, 1973 (for short "the Code"), seeking quashing of

orders dated 18th February 2003, by which the Criminal Complaint

filed against the respondents in this appeal, for having committed

offences under Sections 406 and 409 of the Indian Penal Code, 1860

(for short "IPC") had been dismissed in default by the Chief Judicial

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Magistrate, Muktsar; and 9th November 2005 by which the application

for restoration of the said complaint was dismissed.

3. Succinctly put, the material facts giving rise to the present appeal are

as follows:

The appellant, a statutory body, constituted under the Warehousing

Corporation Act, 1962, filed a private criminal complaint under Sections

406 and 409 of the IPC against the respondents, alleging shortage of huge

quantity of rice in respect of paddy entrusted to them as miller.

Simultaneously, an application for exemption from personal appearance

of the complainant therein, was also filed, whereon the following order

was passed by the Trial Court on 16th April 1999.

"In view of the application made by the complainant

presence of complainant is exempted till further orders."

The trial proceeded in the normal course for six years. However, on 18th

February 2003 the Chief Judicial Magistrate dismissed the case for non

appearance of the complainant even though the pleader for the appellant

was present in court. The order reads thus:

"None is present on behalf of the complainant nor any

request has been received on behalf of the complainant.

Both the accused are present on bail. In view of the

absence of the complainant, complaint stands dismissed

in default. Be consigned to Record Room.

Pronounced. Sd/-

Chief Judicial Magistrate

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Muktsar

At this stage an application for restoration of the

complaint has been filed on the ground that personal

appearance of the complainant was already exempted

vide order dated 16.4.99. Copy supplied to the counsel

for accused. However, let the notice to the accused

regarding the application be given present in the court for

24.3.03.

File be also produced on the date fixed.

Sd/-

CJM 18.2.03"

The application for restoration of the complaint was ultimately dismissed

on 9th November 2005, by the following order:

"After considering the arguments of the parties at length,

I am considered of the view that complaint was dismissed

in default. Complainant was already exempted from the

personal appearance on 16.4.99 and thereafter he

appeared in the court in person. The orders have become

redundant and the complainant had to seek afresh

exemption from appearance. From the perusal of the

record, it appears that complainant has never moved any

fresh application for exemption nor the same was ever

allowed and as such the order of dismissal dated 19.2.03

has become final and counsel for the accused has referred

the Apex Court judgments and I have gone through the

same and find a force in the contention of the learned

counsel for accused. There is no provision in Criminal

Procedure Code to review the order and recall the

summons. Hence, application moved by the applicant is

hereby declined and accused are also discharged. File be

consigned to the record room."

4. Aggrieved thereby the appellant moved the High Court with a petition

under Section 482 of the Code for setting aside of the said orders and

restoration of the complaint. As aforesaid, by the impugned judgment,

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the High Court has dismissed the petition, holding that the dismissal in

default of a private complaint amounts to acquittal of the accused, and

since against such an order a specific statutory remedy exists in the

Code, a petition under Section 482 of the Code cannot be entertained.

Hence the present appeal by the complainant.

5. As per the office report, the respondents had refused to accept

summons when the same were tendered to them by the process server.

Consequently, vide order dated 18th September, 2009 the respondents

were deemed to have been served. We have heard the learned counsel

for the appellant.

6. Learned counsel appearing for the appellant has assailed the impugned

judgment mainly on the ground that the discretion vested in the High

Court under Section 482 of the Code being very wide, in the instant

case the High Court grossly erred in declining to exercise its

jurisdiction on the ground that an alternative remedy was available to

the appellant against an order of acquittal of the accused. Relying on

the decision of this Court in Aseem Shabanli Merchant Vs. Brij

Mehra & Anr.1, learned counsel has urged that having regard to the

serious nature of the charges against the respondents, the complaint

should not have been dismissed in default on account of non

appearance of the complainant, who had been otherwise exempted

1 (2005) 11 SCC 412

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from personal appearance, and the case ought to have been tried on

merits. In support of his contention that dismissal of the complaint

because of a singular default in appearance on the part of the

complainant, was improper, learned counsel relied upon the decision

of this Court in Mohd. Azeem Vs. A. Venkatesh & Anr.2. It is also

argued that having regard to the nature of the case, the High Court

committed a patent error in dismissing the petition under Section 482

of the Code on the ground of availability of an alternative remedy. In

support of the proposition that availability of an alternative remedy

per se is no ground for dismissal of an application under Section 482

of the Code, learned counsel commends us to the decision of this

Court in Dhariwal Tobacco Products Ltd & Ors.. Vs. State of

Maharashtra & Anr.3.

7. The short question that falls for consideration is whether in the fact-

situation the High Court was justified in declining to exercise its

jurisdiction under Section 482 of the Code?

8. It is trite law that the inherent power of the High Court ought to be

exercised to prevent miscarriage of justice or to prevent the abuse of

the process of the Court or to otherwise secure the ends of justice. The

Court possesses wide discretionary powers under the Section to secure

these ends. In this behalf it would be profitable to refer to the decision

2 (2002) 7 SCC 726

3 (2009) 2 SCC 370

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of this Court in Jeffrey J. Diermeier & Anr. Vs. State of West Bengal

& Anr.4, wherein one of us (D.K.Jain, J.), speaking for the bench,

explained the scope and ambit of inherent powers of the High Court

under Section 482 of the Code as follows:

"20.................................................................

The Section itself envisages three circumstances under

which the inherent jurisdiction may be exercised, namely,

(i) to give effect to an order under the Code; (ii) to

prevent abuse of the process of Court; and (iii) to

otherwise secure the ends of justice. Nevertheless, it is

neither possible nor desirable to lay down any inflexible

rule which would govern the exercise of inherent

jurisdiction of the Court. Undoubtedly, the power

possessed by the High Court under the said provision is

very wide but it is not unlimited. It has to be exercised

sparingly, carefully and cautiously, ex debito justitiae to

do real and substantial justice for which alone the court

exists. It needs little emphasis that the inherent

jurisdiction does not confer an arbitrary power on the

High Court to act according to whim or caprice. The

power exists to prevent abuse of authority and not to

produce injustice.

.....................................................................

22. In Dinesh Dutt Joshi v. State of Rajasthan [(2001)

8 SCC 570], while dealing with the inherent powers of

the High Court, this Court has observed thus (SCC p.

573, para 6):

"6. ...The principle embodied in the section

is based upon the maxim: quando lex

aliquid alicui concedit, concedere videtur et

id sine quo res ipsae esse non potest i.e.

when the law gives anything to anyone, it

gives also all those things without which the

thing itself would be unavailable. The

section does not confer any new power, but

only declares that the High Court possesses

inherent powers for the purposes specified in

4 (2010) 6 SCC 243

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the section. As lacunae are sometimes found

in procedural law, the section has been

embodied to cover such lacunae wherever

they are discovered. The use of

extraordinary powers conferred upon the

High Court under this section are however

required to be reserved, as far as possible,

for extraordinary cases."

9. Bearing in mind the afore-stated legal position in regard to the scope

and width of the power of the High Court under Section 482 of the

Code, we are of the opinion that the impugned decision is clearly

indefensible. As noted above, the High Court has rejected the petition

under Section 482 of the Code on the ground of availability of an

alternative remedy without considering the seriousness of the nature of

the offences and the fact that the Trial Court had dismissed the

complaint on a hyper technical ground viz. since the complainant had

been appearing in person, despite order dated 16th April 1999,

exempting him from personal appearance, the said exemption order

became redundant and the complainant should have sought a fresh

exemption from personal appearance. We feel that such a view defies

any logic. An order of exemption from personal appearance continues

to be in force till it is revoked or recalled. We are convinced that in the

instant case, rejection of appellant's petition under Section 482 of the

Code has resulted in miscarriage of justice. Availability of an

alternative remedy of filing an appeal is not an absolute bar in

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entertaining a petition under Section 482 of the Code. As aforesaid,

one of the circumstances envisaged in the said Section, for exercise of

jurisdiction by the High Court is to secure the ends of justice.

Undoubtedly, the Trial Court had dismissed the complaint on a

technical ground and therefore, interests of justice required the High

Court to exercise its jurisdiction to set aside such an order so that the

Trial Court could proceed with the trial on merits.

10.Resultantly, the appeal is allowed. The impugned judgment as also the

orders of the Chief Judicial Magistrate dated 18th February 2003 and

9th November 2005 are set aside and the complaint filed by the

appellant is restored to the file of the Chief Judicial Magistrate. The

Chief Judicial Magistrate shall now proceed with the trial after

securing the presence of the accused.

..................................................

(D.K. JAIN, J.)

.................................................

(ANIL R. DAVE, J.)

NEW DELHI;

NOVEMBER 28, 2011.

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