The petitioner-original complainant in CR I. No. 48 of 2011 registered with Narmada Police Station for the offences punishable under Sections 143, 147, 148, 149, 342, 395, 427, 435 and 506(2) of IPC and one of the witness in Sessions Case No. 2 of 2012 has approached this court under Articles 226 and 227 of the Constitution of India read with Section 482 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short) for the following reliefs:
"(A) Your Lordships may be pleased to quash and set aside the order passed by the learned Sessions Judge dated 17.2.2012 whereby the learned Sessions Judge was pleased to reject the request of the learned Government Pleader to give the document bearing No. 6/1 dated 8.2.2010 an Exhibit and further be pleased to direct the learned Sessions Judge to give an Exhibit to the document bearing No. 6/1 dated 8.2.2010.
(B) Pending the hearing and final disposal of this petition, Your Lordships may be pleased to stay and suspend further proceedings of the Sessions Case No. 2/2012 pending before the learned Sessions Judge, Narmadanagar at Rajpipla.
(C) Such other and further relief as Your Lordships may deem fit and proper in the interest of justice be granted."
Facts in brief leading to filing this petition as could be culled out from the memo of petition deserve to be set out as under:
The petitioner lodged complaint against present respondent No.2, which came to be registered as FIR - I.CR. No. 48 of 2011 with Narmada Police Station for the aforementioned offences. The said FIR was investigated and ultimately on police report, Sessions Case commenced being Sessions Case No. 2 of 2012. During trial of said case, the trial Court while recording evidence of one witness called Mahendrabhai Shankarlal Gajjar, witness No.7 at Exh. 19, made note declining the learned Public Prosecutor's request for exhibiting document mark 6/1 on account of identification of hand writing by the witness, which was declined by the Court invoking provisions of Section 24 of the Indian Evidence Act and note to this effect was made right at the time and that deposition proceeded further and evidence was recorded. This happened on 17.2.2012. The present petitioner, who is original complainant apprehended that this rejection of request of learned PP would jeopardize the case of prosecution and hence, filed present petition on 13.3.2012.
Learned advocate for petitioner contended that declining of exhibiting the document in question, which is in form of extra ordinary confession, amounts to patent illegality resulting into injustice and therefore, the same needs to be rectified by only remedy available in form of petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr. P.C.
Learned advocate for petitioner contended that document on itself exhibition would not epso-facto be proved as a proof as the contents of the documents and therefore it was not required to be rejected straightway on the ground of provisions of Section 24 of the Indian Evidence Act. The non-exhibiting of the document cause fetal blow to the trial itself and therefore, complainant, who is a victim of the offense, has a right to approach the court under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C.
Learned advocate for petitioner while justifying the petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C place heavy relied upon the decision in case of (I) State through Special Cell, New Delhi Vs. Navjot Sandhu alias Afshan Guru and others, reported in (2003) 6 SCC 641 and made emphasis on paras-28 and 29, (ii) in case of Surya Dev Rai, reported in 2003 (3) GLH 515 and made emphasis on para-37. So far as locus-standi of the petitioner is concerned, learned advocate for petitioner has relied upon the decision in case of Sheikh Madinabibi Mustafabhai Vs. State of Gujarat, reported in 2005(2) GLH 7, para-10.
Learned APP for respondent no. 1 submitted that he has not received any instructions qua his counter part in the trial, proposing for filing or taking out any proceedings from the note made in the deposition of witness no. 7.
Learned advocate for respondent no. 2-accused contended that the petitioner complainant has no locus-standi to maintain this petition. Learned advocate for respondent no.2 further contended that document, which is sought to be exhibited, is not explained in any manner qua its recovery either in recovery panchnama or in other manner. Though it is forming part of the investigating process, it has not been explained anywhere as to how the document was recovered by the I.O.
Learned advocate for respondent no. 2 thereafter contended that the petitioner has not sought any permission under Section 301 of Cr.P.C for assisting learned PP nor has he attempted in any manner to assist learned PP though stage might has not arisen at this juncture.
Learned advocate for respondent no. 2 invited this court's attention to the decision in case of Kokkanda B. Poondacha & Ors. Vs. K.D. Ganapathi & Anr, reported in AIR 2011 SC 1353 and laid emphasis on paras-8 and 10, in which, the Apex Court has relied upon Surya Dev Rai (supra) and submitted that High Court is restricted in exercising powers under Articles 226 and 227 of the Constitution of India in respect of interlocutory orders in trial.
Learned advocate for respondent no. 2 thereafter relied upon the decision in case of Swetambar Sthanakwasi Jain Samiti and another Vs. The alleged Committee of Management, Sri. R.J.I. College, Agra and others, reported in AIR 1996 SC 1209 and laid emphasis on para-8.
Learned advocate for respondent no. 2 relying upon the decisions of the Apex Court contended that this Court in exercise of powers under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C may not interfere with note at all, as there will be ample opportunity to the petitioner to raise appropriate argument at appropriate stage. At this stage, if such orders are to be interfered, then, no trial could be proceeded at all. In fact, it is an established practice by the Apex Court that Presiding Officer while recording evidence has to record the objection and proceed further with the matter.
This Court has heard learned advocates for the parties and perused the annexures as well as the authorities cited. The court is not inclined to entertain this petition at this stage for the following reasons:
It is most appropriate to set out the relevant paras of the judgment cited at bar on behalf of writ petitioner i.e. in case of State Through Special Cell, New Delhi (Supra), wherein, the Apex Court in paras-28 and 29 read as under:
"para-28:
Thus the law is that Article 227 of the Constitution of India gives the High Court the power of superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. This jurisdiction cannot be limited or fettered by any Act of the State Legislature. The supervisory jurisdiction extends to keeping the subordinate tribunals within the limits of their authority and to seeing that they obey the law. The powers under Article 227 are wide and can be used, to meet the ends of justice. They can be used to interfere even with an interlocutory order. However, the power under Article 227 is a discretionary power and it is difficult to attribute to an order of the High Court, such a source of power, when the High Court itself does not in terms purport to exercise any such discretionary power. It is settled law that this power of judicial superintendence, under Article 227, must be exercised sparingly and only to keep subordinate courts and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal in disguise".
29. Section 482 of the Criminal Procedure Code starts with the words "Nothing in this Code". Thus the inherent jurisdiction of the High Court under Section 482 of the Criminal Procedure Code can be exercised even when there is a bar under Section 397 or some other provisions of the Criminal Procedure Code. However as is set out in satya Narayan Sharma case this power cannot be exercised if there is a statutory bar in some other enactment. If the order assailed is purely of an interlocutory character, which could be corrected in exercise of revisional powers or appellate powers the High Court must refuse to exercise its inherent power. The inherent power is to be used only in cases where there is an abuse of the process of the court or where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out hereinabove fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."
Plain reading of these two paras and observations made therein would satisfy the court that this observations are not of any avail to the petitioner's contention at all. On the contrary, if the ratio is to be examined by the Court in that judgment, then, it would clearly show that Article 227 could not be exercised in "as the cloak of an appeal in disguise". Admittedly in the instant case, Revision is barred and when the Revision is expressly barred and when there is an absence of requisite ingredient of invoking jurisdiction under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C. then, no interference is called for in the present case and therefore, the aforesaid decision would be of no avail to the petitioner.
Learned advocate for the petitioner has relied upon the decision in case of Surya Dev Rai (supra), wherein, the Apex Court in para-37 observed as under"
"para-37:
Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder:-
Amendment by Act No. 46 of 1999 with effect from 1-7-2002 in Section 115 of the Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution.
Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate Courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby.
A patent error is an error which is self-evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long-drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent.
The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis.
The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character.
In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate Court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case."
This proposition of law on the contrary helps the case of respondent no.
2. This petition should be rejected. The proposition in item nos. 4, 5, 6 and 7 would rather dissuade this court from interfering with the order impugned in this petition. The ratio if it is read into in its true spirit and letter, would go to show that in a rarest of rare case interlocutory orders could be interfered with and in the instant case, there exists lack of jurisdiction, which would justify petition under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C.
The learned advocate for petitioner has relied upon the decision in case of Sheikh Madinabibi Mustafabhai (supra) and relied upon para-10, which reads as under:
"para-10:
The facts of the present case are substantially different. The application to recall witnesses under Sec.311 of CrPC is not signed by the ld. Spl.PP nor the same was submitted through ld. Spl.PP, but on the date of hearing of the application, the State has supported the case of the complainant. Mr. Gandhi, ld. Spl.PP appointed by the State of Gujarat replacing the earlier Spl.PP to conduct the trial, has took up the cause of the complainant. Of course, it is not mentioned in the order under challenge, but it is apparent from the nature of submissions advanced by Mr. Gandhi, ld. Spl.PP that prosecuting State has accepted the grievance raised by the complainant in the application and requested the Court to allow the application as prayed. This submission made by ld.Spl.PP Mr.Gandhi can be said to be a request from the Prosecuting State and not a request only on behalf of the petitioner -original complainant. There is no element of conflict and no contrary submissions were mainly advanced by ld. Spl.PP. The entire scheme emerging from all relevant provisions for conduction of a fair trial indicates that locus standi of the complainant is a concept foreign to the criminal jurisprudence of the country save and except where Statute provides for eligibility of the complainant. It is apparent that one another purpose is to see that the trial is conducted in a regulated manner otherwise the lawyer appearing for the complainant and/or other victims may seriously prejudice the cause of the State. The ratio of the decision of the Kerala High Court in the case of Somasundaram (supra) or the observations made by this Court in the above-referred decision, would not help the respondents accused. On the contrary, ld. PP Mr. Oza has supported the case of the petitioner and it is argued by ld. PP Mr. Oza that ld. trial Court would have considered the request as if it is advanced by ld. PP appearing in the matter relying on the same grounds mentioned in the application. Who applies, according to me, is not a matter of much relevance, but who supports the application is important. Necessity is that State remains in charge of the prosecution and the fairness which requires to be maintained in conducting the trial is taken care of by the ld. Presiding Judge. It is not necessary that the State must file such or similar application or it could have filed another similar application for the purpose. Support from the PP in such facts situation is relevant and important. It is not even the submission that the complainant had attempted to override ld.PP and from the facts emerging from record, it is difficult to infer even impliedly that the wish of the complainant was to become a prosecutor parallel to the State. The application preferred by the original complainant has force of an application by the State as ld. Spp.PP Mr. Gandhi has requested to grant the said application accepting the grievance expressed in the application itself. Merely because the State could have requested to recall any number of witnesses at any subsequent stage of trial or ld. Presiding Judge of the Court suo motu could have called any of the witnesses mentioned in the application, would not make the case of the present petitioner weak on the point of locus. In view of the observations made by the Apex Court in the case of Abhilasha & Ors. v/s State of Rajasthan & Ors., 2000(1) SCC 237, it is rightly submitted by ld. Counsel Mr. Malkan for the petitioner that when the ld. PP is sure that in the event certain material which is brought to the notice of the ld. PP is able to unveil the truth, the ld.PP can certainly take that into consideration and act according to law. In the present case, placing certain contentions and facts in the application preferred under Sec.311 of CrPC, the complainant had made an attempt to assist the ld. Spl.PP and on the date of hearing, ld. Spl.PP Mr.Gandhi, considering the details of the application had made submissions in accordance with law. So, the application preferred by the original complainant could not have been otherwise rejected on the point of locus. In the same way, the present Revision Application also can not be thrown solely on this ground. At one point of time, ld. PP Mr. A.D.Oza has submitted that the State may also file Revision Application against the order under challenge. Of course, the State of Gujarat has not initiated any revisional proceedings against the impugned order, but the stand taken by the State of Gujarat in the present Revision Application would help the present petitioner complainant as State of Gujarat is supporting. At this stage, it is necessary to mention that ld. Spl.PP appointed to conduct the trial of Sessions Case No. 160/2002 and 59/2003 was instructed not to appear and conduct the trial as mentioned herein above."
In my view, this judgment is also of no avail to the petitioner, as could be seen from the observations of the Court that court has proceeded on premise that the complainant in that case had been aggrieved on account of trial court's rejection of his application made under Section 311 of recalling of the witness and it was observed that learned APP and State was supporting their stand. Thus in that premise, the observations were made with regard to locus-standi of the complainant. In the instant case, such premise is conspicuously absent and therefore, facts are different and therefore, that judgment is of no avail to the petitioner.
At this stage, it is required to be noted that case in case of Surya Dev Rai (supra) has been relied upon by the Apex Court recently in the judgment reported in AIR 2011 SC 1353, which has been relied upon by learned advocate for respondent no. 2 to indicate that the Court in these circumstances, need not interfere with the orders in question. The relevant paras-8 & 12 reads as under:
"para-8 : We have considered the respective submissions. We shall first consider the question whether the High Court could interfere with the order of the trial Court without considering the question whether the said order was vitiated due to want of jurisdiction or the trial Court had exceeded its jurisdiction in deciding the application of the respondents and the order passed by it has resulted in failure of justice. In Surya Dev Rai's case (supra) (AIR 2003 SC 3044), the two Judge Bench, after detailed analysis of the various precedents on the scope of the High Court's powers under Articles 226 and 227 of the Constitution culled out nine propositions including the following:-
"(2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by CPC Amendment Act 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court.
Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction i.e. when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction - by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice.
Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.
Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied: (I) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (ii) a grave injustice or gross failure of justice has occasioned thereby."
para-10.
The learned single Judge of the High Court totally ignored the principles and parameters laid down by this Court for exercise of power under Articles 226 and 227 of the Constitution qua an interlocutory order passed by the Subordinate Court and set aside the order of the trial Court without assigning any tangible reason."
The trial Court has not committed any jurisdictional error, which would require to be rectified or interfered with under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C for declining the request of learned PP. Though at this stage, it is also required to be noted that the trial Court has recorded the reasons at its decision thereon and i.e in my view, is sufficient for the purpose of proceeding further with the trial, as a point time and its recording is sufficient compliance with the provisions of law for conducting the trial.
It is also required to be noted that this Court under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C on its extra ordinary jurisdiction will have to record its satisfaction qua jurisdictional error, overstepping of jurisdiction and non-exercise of the jurisdiction by the trial Court. If these factors are absent, then, no interference is called for in the orders or action, taken during the course of trial at all. In the instant case, the court is of the view that declining of the request of PP cannot be said to be such a action, which may be classified as action without jurisdiction and/or action which is amounting to overstepping of the jurisdiction, which would call for any interference under Articles 226 and 227 of the Constitution of India read with Section 482 of the Cr.P.C.
In view of the aforesaid discussion, the petition being bereft of merits. The court is of the view that order sought to be impugned cannot be said to be an order resulted into mis-carriage of justice or suffers from patent lack of jurisdiction on the part of the authority making or overstepping of the jurisdiction and therefore, petition itself deserves to be dismissed and is accordingly dismissed. Notice discharged.
(S.R.BRAHMBHATT, J.) pallav Top