1. This writ petition under Article 226 of the Constitution of India has been filed by two petitioners, namely, Dr. (Mrs.) Shayesta Khan and Abid Raza Badar, assailing orders dated 26.10.1999 and 21.09.2002 passed by Judicial Magistrate, Rampur in Case No. 422 of 2002 for summoning petitioners under Section 63 of Indian Copy Right Act, 1957 (hereinafter referred to as the "Act, 1957"), after rejecting their objections. Petitioners have also challenged order dated 22.05.2003 passed by Sri Lokendra Kumar Rathi, Additional Sessions Judge (Fast Track Court No. 2), Rampur (hereinafter referred to as the "Revisional Court") dismissing Criminal Revision No. 230 of 2002 and confirming Magistrate's order dated 26.10.1999 summoning petitioners under Section 63 of Act, 1957 and order dated 21.09.2002, whereby petitioners' objection and application for recall of summoning order was rejected.
2. Facts giving rise to present petition are that a complaint was filed by Rampur Raza Library Board (hereinafter referred to as the "RRLB") against petitioners as well as two others, namely, M/s Makhtaba Jamia Limited through its Proprietor/ Partner / Authorized Person and Khuda Bux Oriental Public Library, Patna (Bihar) through its Director for proceeding against them under Section 63 of Act, 1957. Complaint case set up was that RRLB is a Body Corporate under Rampur Raza Library Act, 1975 (Central Act No. 22 of 1975) (hereinafter referred to as the "Act, 1975"). It is an old and prestigious institution founded in the year 1974 by then Ruler of Rampur Estate. Library possessed very precious and rare collections of manuscripts, documents, paintings, specimens of calligraphy, printed books in various languages such as Urdu, Hindi, Arbic, Persian, Sanskrit, Turkish and Tamil etc. RRLB possessed all rights to publish and print any work available in Library or to develop the same by virtue of Rampur Raza Library Anurakshan Rules, 1987 (hereinafter referred to as the "Rules, 1987").
3. Accused-1, i.e., petitioner-1, published a book named, "Ferhist-E-Farsi" from Persian Manuscripts available in Library alleging that same was communicated by Accused-2 in the name of publisher-accused-4. In respect of aforesaid Manuscripts, Rampur Raza Library is the first owner and without seeking its permission, publication of work from said Manuscripts amounts to violation of Act, 1957.
4. Judicial Magistrate recorded statement of Sri W.H. Siddiqui as representative of RRLB under Section 200 Cr.P.C. and also statement of Abu Sad Ilahi under Section 202 Cr.P.C. and thereafter summoned Accused-1 and 3, (petitioners before this Court) vide order dated 26.10.1999 for being tried under Section 63 of Act, 1957 read with Section 120B IPC and complaint was rejected against Accused-2 and 4.
5. Petitioners then filed objections against summoning order dated 26.10.1999 and requested for its recall, which has been rejected by Judicial Magistrate vide order dated 21.09.2002 and revision preferred thereagainst has been dismissed by Revisional Court vide order dated 22.05.2003.
6. Sri V.M. Zaidi, learned Senior Advocate appearing for petitioners, contended that petitioners have no role in publication of aforesaid Manuscripts/work. There is no evidence to show any knowledge of petitioners in regard of aforesaid publication. There is no resolution passed by Board so as to authorize RRLB to file complaint and further that publication was done by Khuda Bux Oriental Public Library, Patna (Bihar) out of its own funds and there is no implication of petitioners in the matter at all.
7. Most of the arguments raised by learned counsel for petitioners are basically advanced which are yet to be examined by Trial Court since petitioners are yet to appear and place their defence before Court below. At this stage it cannot be lost sight that petitioners have come to this Court challenging only summoning order passed by Judicial Magistrate and, therefore, scope of judicial review is limited to the extent whether there was material before Judicial Magistrate to summon petitioners under Section 63 of Act, 1957 read with Section 120B IPC.
8. A bare perusal of complaint which has been supported by statements made on behalf of complainant under Section 200 Cr.P.C. and witness under Section 202 Cr.P.C., it cannot be doubted that a prima facie case of violation of Section 63 of Act, 1957 and Section 120B IPC has been made out. Whether there is any evidence to prove charge against petitioners is a matter to be examined in trial when both parties shall be free to lead evidence in entirety but at the stage of summoning Magistrate is supposed to apply its mind only to material placed before it and to find out whether there is prima facie case made out by complainant, with objective consideration so as to proceed for trial against accused persons in respect of offences which has been made out in complaint supported by statements made under Sections 200 and 202 Cr.P.C. So far as these materials are concerned, I have no manner of doubt that a prima facie case has been made out by complainant and Magistrate has rightly issued summoning order which has been confirmed by Revisional Court.
9. In Adalat Prasad Vs. Rooplal Jindal and others, 2004(7) SCC 338 it has been observed that condition precedent for issuing process under Section 204 Cr.P.C. is satisfaction of Magistrate either by examination of complainant and witnesses or by inquiry contemplated under Section 202 Cr.P.C. that there is sufficient ground for proceeding with complaint. Till this stage there is nothing which requires Magistrate to hear summoned accused. This is only a preliminary stage and stage of hearing of accused would arise subsequently as provided under Code of Criminal Procedure. Inquiry to be made by Magistrate at this stage is confined to the material available before him as contemplated under Sections 200 and 202 Cr.P.C. and not to the possible defence which may be placed by summoned accused after appearing before Magistrate. Court also held that Magistrate has no power to recall its order of summoning since accused cannot invoke Section 203 Cr.P.C. but remedy lies by invoking Section 482 Cr.P.C. Paras 15 and 16 of the judgment read as under:
"15. It is true that if a Magistrate takes cognizance of an offence, issues process without there being any allegation against the accused or any material implicating the accused or in contravention of provision of Sections 200 & 202, the order of the Magistrate may be vitiated, but then the relief an aggrieved accused can obtain at that stage is not by invoking Section 203 of the Code because the Criminal Procedure Code does not contemplate a review of an order. Hence in the absence of any review power or inherent power with the subordinate criminal courts, the remedy lies in invoking Section 482 of Code.
16. Therefore, in our opinion the observation of this Court in the case of Mathew (supra) that for recalling an order of issuance of process erroneously, no specific provision of law is required would run counter to the Scheme of the Code which has not provided for review and prohibits interference at inter-locutory stages. Therefore, we are of the opinion, that the view of this Court in Mathew's case (supra) that no specific provision is required for recalling an erroneous order, amounting to one without jurisdiction, does not lay down the correct law."
10. The law laid down in above authority is clear that Magistrate has to form its opinion on the basis of material placed before it and the possible defence of accused is not to be seen since that is a stage which would come subsequent to the issue of process under Section 204 Cr.P.C.
11. Since entire trial is yet to proceed, any further discussion on the matter is bound to prejudice interest of parties, therefore, I am refraining myself from discussing matter further but at this stage I am satisfied that there is no error apparent on the face of record in impugned orders so as to warrant interference in writ jurisdiction under Article 226 of the Constitution of India.
12. I may put a word of caution that in writ jurisdiction Court will not permit accused persons to place material which has not been subject matter of scrutiny by Court below so as to turn writ jurisdiction as a trial to examine for the first time entire defence of accused to find out whether there would be a successful trial or not. A stage which is yet to come before Court below cannot be allowed to be made in writ jurisdiction by placing certain material which is yet to be examined by Trial Court. Petitioners will have full opportunity of placing their defence before Court below and something which has not come before Court below till date should not be examined by this Court to consider correctness of summoning order passed by Court below on the basis of material placed before it for the first time by accused.
13. Even otherwise, scope of judicial review under Articles 226/227 of the Constitution is not like Appellate Court. The scope of judicial review in such matters where the orders of courts below are assailed before this Court is very limited. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.
14. In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 the Court said:
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."
15. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".
16. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Apex Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.
17. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47).
18. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC 143).
19. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).
20. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Hon'ble Apex Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.
21. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931, the Hon'ble Supreme Court held that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.
22. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.
23. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Hon'ble Apex Court held that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.
24. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319.
25. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.
26. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Court said:
"...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions."
27. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.
28. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Apex Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.
29. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority.
30. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.
31. In view thereof, I find no justification warranting interference with the orders impugned in this writ petition.
32. Dismissed. Interim order, if any, stands vacated.
Order Date :-08.07.2016 AK