IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 6TH AUGUST 2009 / 15TH SRAVANA 1931 Crl.MC.No. 2128 of 2006() (CRL.R.P.37/2006 of SESSIONS COURT, KOZHIKOE CMP.4615/2005 of JUDL. MAGISTRATE OF FIRST CLASS-I, KOZHIKODE) PETITIONER: REVISION PETITIONER/COMPLAINANT ACHAMMA JOHN, W/O.P.V.JOHN, PAYYAPPILLY HOUSE, MEDICAL COLLEGE, CALICUT-8. BY ADV. SRI.T.A.SHAJI SRI.VINOD SINGH CHERIYAN SRI.M.A.ASIF SMT.T.V.NEEMA SMT.RAGAM.S.MOHAN RESPONDENTS: RESPONDENTS/ACCUSED 1 & 2 1. ANUPAMA ELIZEBATH, W/O.JOSE ANTONY, PAYYAPPILLY HOUSE, MEDICAL COLLEGE, CALICUT-8. 2. JOSE ANTONY, S/O.ANTONY, PARATHARA HOUSE, ASHOKA ROAD, KALOOR, KOCHI-17. 3. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.K.GOPALAKRISHNA KURUP FOR R1 & R2 PUBLIC PROSECUTOR SRI.B.JAYASURYA-R3 THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 25/06/2009, THE COURT ON 06/08/2009 PASSED THE FOLLOWING: C.R C.T. RAVIKUMAR, J. -------------------------------------------- CRL. M.C. NO.2128 of 2006 -------------------------------------------- Dated this the 6th day of August, 2009 ORDER The petitioner herein was the revision petitioner and the respondents 1 and 2 herein were the respondents, in that order, in Crl.R.P.No.37/06 which was dismissed by the Court of Session, Kozhikode as per order dated 7.6.06. The said revision was filed against the order of dismissal of C.M.P.No.4615/05 by the Judicial First Class Magistrate Court-1, Kozhikode under Section 203 of the Code of Criminal Procedure, hereinafter referred for brevity 'the Code' only. 2. The incontrovertible factual position needs narration in the light of the rival contentions to be set out hereinafter. One Mr. P.V. John, who was a Senior Operator in the Indian Oil Corporation Ltd., died on 4.4.05. The heritable properties left by him includes thousand shares in the said Corporation, having a value of about Rs.10,00,000/- and the amount available in the Savings Bank account maintained by him with the Mananchira branch of the State Bank of India, hereinafter referred to as 'the heritable properties'. His daughter, through Smt. T.V. Mary, the 1st respondent herein, is the nominee in respect of the said heritable properties. The 2nd respondent is her husband. The petitioner had, earlier, raised the Crl.M.C.No.2128 of 2006 -2- right to receive death benefits due from the Indian Oil Corporation Ltd., claiming the status of the legally wedded wife of the said Sri.P.V. John. The 1st respondent resisted it and consequently, to redress the grievance, she instituted a civil suit and the same is pending before the Munsiff Court, Kozhikode. 3. However, the schism in regard to the heritable properties made the petitioner to file Annexure-A complaint before the Judicial First Class Magistrate Court-1, Kozhikode and the same was received on the file as C.M.P.No.4615/05. According to her, the said Sri. P.V. John married her on 12.1.03, after the death of his wife Smt. T.V. Mary. The factum of their marriage is admittedly known to the 1st respondent, his daughter through the said T.V. Mary. The respondents 1 and 2 colluded and misappropriated the heritable properties and the 1st respondent had committed breach of trust by denying her due share over them. It is further averred that the 1st respondent transferred the aforesaid 1000 shares to the 2nd respondent using her capacity as nominee besides withdrawing the deposits of the said Sri.P.V.John from his account maintained in the Mananchira Branch of the State Bank of India, without the petitioner's knowledge and consent. Despite the receipt of lawyer notice, the 1st respondent is not willing to give the petitioner her due share over them. The respondents 1 and 2 herein have Crl.M.C.No.2128 of 2006 -3- thus committed offences punishable under Sections 406, 417, 420, 120(B) read with 34 of the I.P.C. It was raising the said allegations that she filed Annexure-A complaint. 4. The learned Magistrate after considering the sworn statement of the petitioner, the documents produced and the allegations incorporated in the complaint arrived at a conclusion that the allegations constitute only a dispute of civil nature and the remedy of the petitioner is only to approach a competent civil court. The learned Magistrate dismissed the said C.M.P under section 203 of the Cr.P.C by Annexure-F order finding that there exists no sufficient ground to proceed further with the case. The matter was taken up in revision by the petitioner before the Court of Session, Kozhikode. After elaborate consideration of the contentions of the petitioner, the learned Sessions Judge concurred with the findings of the learned Magistrate. The incontrovertible position that the 1st respondent is a legal heir of the deceased Sri. P.V. John and his nominee in respect of the heritable properties, was duly taken into consideration by the learned Sessions Judge. The further facts emerging from her sworn statement that her right to receive the death benefits due from the Indian Oil Corporation Ltd. consequent to the death of Sri. P.V. John was resisted by the 1st respondent herein, that the same is now, the subject matter in a civil dispute Crl.M.C.No.2128 of 2006 - 4 - pending before the Munsiff court, Kozhikode and further that the petitioner herself stated in the complaint that the 1st respondent had asserted that the petitioner got no right over the aforesaid heritable properties, were also taken into consideration. Based on such consideration, the learned Sessions Judge arrived at a conclusion that the statement of the petitioner that the factum of her marriage with said Sri.P.V. John is admittedly known to the 1st respondent cannot be accepted. It was taken that the 1st respondent is in fact, disputing the status of the petitioner as the legally wedded wife of her father Sri.P.V.John. Accordingly, vide Annexure-G order, the learned Sessions Judge dismissed the said revision petition holding that what is involved in the case is only a civil dispute and the allegations did not attract any offence as alleged by the petitioner. The above Crl.M.C has been filed against the said concurrent findings with prayer to quash Annexures F and G orders of the courts below and to direct the learned Magistrate to proceed with the case in accordance with law after taking cognizance of the offences alleged. 5. I have heard the learned counsel for the petitioner Sri.T.A Shaji, the learned counsel for the respondents 1 and 2, Sri.K.Gopalakrishna Kurup and the learned Government Pleader Sri.B.Jayasurya. The learned counsel for the petitioner repeated the allegations raised in Annexure-A Crl.M.C.No.2128 of 2006 -5- complaint and relied on the materials produced in support thereof to contend that the courts below are not justified in arriving at a finding that no prima facie case was made out to proceed further with the criminal proceedings. It was contended that courts below fell in error in rejecting the contentions of the petitioner on the ground that allegations constitute only a dispute of civil nature and they did not attract any criminal liability. 6. The counsel for the respondents 1 and 2 firstly contended that the above Crl.M.C itself is not maintainable. It was contended that it is virtually a criminal revision petition and in view of the express bar for entertaining an application for a second revision by virtue of the provisions engrafted under Sections 397(3) and 399(3) of the Code it is liable to be dismissed. That apart, it was contended that even if all the allegations in their entirety are taken as correct, they would constitute only a dispute of civil nature as rightly held by the courts below and they would not constitute any criminal offence as alleged by the petitioner, especially in view of the incontrovertible status of the 1st respondent viz., being the legal heir of the deceased Sri.P.V.John as also his nominee in respect of the aforesaid heritable properties and the disputed status of the petitioner as the legally wedded wife of the deceased Sri.P.V.John. Crl.M.C.No.2128 of 2006 -6- 7. The legal position regarding the maintainability of Crl.M.C filed under Section 482 of the Code, in the factual matrix requires consideration as the first point. A bare reading of Sections 397(3) and 399 (3) of the Code makes it beyond doubt that a second revision by the same person is expressly barred and no argument is required to hold that legal contention. Whether non-availability of such revisional jurisdiction would render the concerned person remedi-less ? The salutary maxim ' Ubi jus ibi idem remedim' still imbue him to inquire the possibility to impeach the same. Section 482 of the Code empowers the High Court to exercise inherent powers to prevent abuse of process of court or otherwise to secure ends of justice. To know the legal position regarding the availability of that remedy in such situations, it is profitable to refer to the decisions of the Hon'ble Apex Court in Ganesh Narayan Hegde v. S.Bengarappa and others reported in 1995(4) SCC 41 and in Raj Kapoor v. State (Delhi Admn.) reported in AIR 1980 SC 258. In Ganesh Narayan's case (supra) it was held: “ while is true that availing of the remedy of revision to the Session Judge under Section 399 of the Cr.P.C does not bar a person from invoking the power of the High Court under Section 482........”. It is thus obvious that non-availability of revisional jurisdiction of this Court by virtue of the express bar under Section 399 of the Code cannot affect the power of this Court under Section 482 of the Code. In Raj Kapoor's case Crl.M.C.No.2128 of 2006 -7- (supra) it was held that nothing in the Code, not even Section 397 could affect the amplitude of the inherent power preserved in assuming terms by the language of Section 482. Further it is held therein: While it is true that Sec.482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution: “would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principle enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power by the High Court”. Thus the legal position emerging from aforesaid decisions is that the non- availability of the power to entertain the second revision under Sections 397 Crl.M.C.No.2128 of 2006 -8- (3) or 399(3) of the Code cannot render a petition under Section 482 of the Code as not maintainable. 8. In view of my finding on the maintainability of the above Crl.M.C, now I have to consider the Crl.M.C on merits. However, it is proper and profitable to consider the scope of exercise of inherent power under Section 482 in respect of matters arising from orders on revision petitions for which there is an express bar for entertaining revisional jurisdiction by this Court. In this context, it is to be noticed that in Ganesh Narayan's case (supra) the hon'ble Apex Court was pleased to strike a word of caution in regard to the exercise of the power under Section 482 in such matters. It was held:- “while it is equally true that availing of the remedy of revision to the Sessions Judge under Section 399 of the Cr.P.C does not bar the person from invoking the power of the High Court under Section 482, it is equally true that the High Court should not act as a second revisional court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter. The High Court should interfere only when it amount to abuse of process of court or that the interest of justice call for quashing of the charges”. Therefore, in a matter where the Court of Session declined to Crl.M.C.No.2128 of 2006 -9- exercise its revisional power and to interfere with an order of the learned Magistrate Court passed under Section 203 of the Code inherent power should be exercised with more circumspection, that too, bearing in mind that the power being exercised is not one of appellate or revisional jurisdiction. It is true that the power of this Court under Section 482 of the Code is meant to act 'ex debito justitiae' to do real and substantial justice. 9. As noticed hereinbefore, in the factual matrix obtained in this case, the learned Magistrate dismissed the complaint on the ground that the dispute involved is of civil nature and learned Sessions Judge concurred with the said finding and declined to exercise his revisional jurisdiction. 10. The legal position is very clear in regard to disputes which are purely of civil nature. In regard to such disputes, institution or continuation of criminal proceedings will be nothing but an abuse of process of court. In certain matters, the allegations constitute predominantly a civil wrong and may or may not amount to a criminal offence. In such situations it would be desirable to decline the exercise of criminal jurisdiction. In this case Annexures G and F orders would reveal that the concurrent finding of the courts below is that the dispute involved is of civil nature. In view of the legal position discussed above, I have to examine the facts involved in this Crl.M.C.No.2128 of 2006 -10- case. I have already adverted to the factual background that led to the institution of the criminal proceedings by the petitioner. Now, the meaning of the expression 'disputes of civil nature' has to be looked into. The word 'civil' means that which pertains to private rights and remedies of citizens and the word 'nature' means fundamental qualities of a person or a thing. If the principal question that arises for consideration is the determination of a civil right and its enforcement the dispute must, invariably, be of civil nature. Of course, it is difficult to give a comprehensive definition of civil rights. However, it is certain that they are inclusive of any right to property, reputation, status and marriage. The facts obtained in this case would reveal that the sustainability of the allegations raised depends on the determination of the right to property, scilicet, the right of the petitioner to the aforesaid heritable properties. In fact, it rests on the determination of the marital status of the petitioner. Indisputably, such disputes can be adjudicated only by a competent civil court. It is true that Annexure-A complaint carries an allegation of commission of offence of breach of trust also. It is to be noticed that a case of breach of trust is both a civil wrong and a criminal offence. There would be situations wherein it would predominantly a civil wrong and may or may not constitute a criminal offence. In view of my finding regarding the civil nature of the allegations contained in Annexure- A complaint and their sustainability in criminal proceedings I do not think Crl.M.C.No.2128 of 2006 -11- that a case has been made out by the petitioner for an interference by invoking the power under Section 482 of the Code. Admittedly, in this case, the first respondent is a legal heir of deceased Sri.P.V.John and she is also his nominee in respect of the shares and amounts involved in the case. In the totality of the circumstances obtained in this case, the allegations incorporated in Annexure A complaint cannot attract any of the penal provisions under the Indian Penal Code. Consequently, the contention of the petitioner that Annexures F and G orders are liable to be quashed to secure ends of justice cannot be accepted. In my opinion, in this case, ends of justice demands declination to exercise the inherent power. On facts the learned Sessions Judge is fully justified in concurring with the learned Magistrate and in not interfering with the order of the learned Magistrate passed under Section 203 of the Code. 11. In view of the legal position and the facts discussed earlier, I am of the view that this is not a fit case which invites interference by invoking the power under Section 482 of the Code. Accordingly, the above Crl.M.C is dismissed. (C.T. RAVIKUMAR, JUDGE) spc C.T. RAVIKUMAR, J. CRL. M.C. NO. O R D E R 3rd June, 2009