Crl.M.C.No.4024/2008 Page 1 of 15 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C.No.4024/2008 % Reserved on : 27.01.2009 Date of decision: 02.02.2009 GAJRAJ SINGH TOMAR …Petitioner Through: Mr.Maurya Vijay Chandra and Mr.D.K.Pandey, Advocates Versus STATE & ORS. ...Respondents Through: Mr.Navin Sharma, APP for the State CORAM: HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether the Reporters of local papers may be allowed to see the judgment? Yes 2. To be referred to Reporter or not? Yes 3. Whether the judgment should be Yes reported in the Digest? MOOL CHAND GARG, J. 1. The petitioner who belongs to Jatav community recognized as a Scheduled Caste community in Delhi had been working as a Mortuary attendant in Malviya Nagar Colony Hospital at the relevant time when the fourth respondent was posted as a Medical Superintendent. On the basis of a note of the fourth respondent to take disciplinary action against the petitioner, he was placed under suspension by the Dr.K.K.Siam, Joint Director (Admn.) of the said hospital in terms of the order issued on 1.6.2005. 2. According to the petitioner, the order of suspension was Crl.L.M.C.No.4024/2008 Page 2 of 15 passed against him on account of wrong information furnished by the fourth respondent, Dr.Rajiv Kumar, who is senior officer who wanted to put the petitioner in trouble and had been threatening him of dire consequences. It is submitted that since the aforesaid information was a wrong information, the said respondent is guilty of committing an offence under Section 3(1)(ix) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as “the SC/ST Act”), which reads as under: “Give any false and frivolous information to any public servant and thereby causes such public servant to use his lawful power to the injury or annoyance of a member of a schedule caste or a schedule tribe.” 3. The petitioner wanted registration of a case under the aforesaid provisions of the SC/ST Act against the said respondent and for that purpose he filed various representations before the Management and complaints with the Police authorities but without any success. 4. In these circumstances, the petitioner filed an application before the Additional Metropolitan Magistrate, New Delhi seeking direction to the Police authorities to register an FIR under the provisions of the SC/ST Act against the fourth respondent. The said application was not accompanied with any complaint under Section 200 Cr.P.C. 5. When the application came up for consideration before the learned ACMM, she in her own wisdom decided to call for a preliminary enquiry report from the Police authorities in respect Crl.M.C.No.4024/2008 Page 3 of 15 of the allegations made against the petitioner. In this regard, a report was submitted before the Court of ACMM by ACP Varsha Sharma who after investigation of the matter reported that no case was made out against the fourth respondent under the provisions of SC/ST Act. In these circumstances, the learned ACMM after hearing the petitioner and taking into consideration the report of the ACP dismissed the application under Section 156(3) Cr.P.C. vide her order dated 19.6.2007. 6. The order of the ACMM was then challenged by the petitioner by filing a revision petition under Section 397 Cr.P.C. which was also dismissed by the Additional Sessions Judge vide order dated 21.9.2007. 7. By way of the present petition which has been filed under Section 482 Cr.P.C. the petitioner seeks invocation of extraordinary jurisdiction of this Court praying for quashing of the order passed by the Additional Sessions Judge and consequently, also the order passed by the ACMM. He also wants direction to be issued against respondent Nos. 1 to 3 to register an FIR against the fourth respondent as prayed by him in his application under Section 156(3) Cr.P.C. 8. On a query raised by the Court as to how the aforesaid petition is maintainable in view of the provisions contained under Section 397(3) Cr.P.c. which bars a second revision by a person who has already availed the remedy under Sectin 397 Cr.P.C. by filing a revision petition before the Court of Sessions under Crl.L.M.C.No.4024/2008 Page 4 of 15 Section 482 Cr.P.C. The learned counsel for the petitioner has relied upon the following judgments:- Madhu Limaye Vs. The State of Maharashtra (1977) 4 SCC 551, Jitender Kumar Jain Vs. State of Delhi and Ors. (1998) 8 SCC 770 and Lalit Mohan Mondol Vs. Benoyendra Nath Chatterjee (1982) 3 SCC 219. However, he fairly conceded that intervention under Section 482 Cr.P.c. can only be made if a case is made out for such intervention particularly when it is found out that such intervention is necessary to prevent the miscarriage of justice and to avoid abuse of the process of the Court. 9. In this regard, I may extract some observations made by the Apex Court in the case of Kailash Verma Vs. Punjab State Civil Supplies Corporation & Anr. (2005) 2 SCC 571 : 5. It may also be noticed that this Court in Rajathi v. C. Ganesan said that the power under Section 482 of the Criminal Procedure Code has to be exercised sparingly and such power shall not be utilized as a substitute for second Revision. Ordinarily, when a Revision has been barred under Section 397(3) of the Code, the complainant or the accused cannot be allowed to take recourse to Revision before the High Court under Section 397(1) of the Criminal Procedure Code as it is prohibited under Section 397(3) thereof. However, the High Court can entertain a petition under Section 482 of the Criminal Procedure Code when there is serious miscarriage of justice and abuse of the process of the court or when mandatory provisions of law were not complied with and when the High Court feel that the inherent jurisdiction is to be exercised to correct the mistake committed by the revisional court. 10. This issue has also been discussed in the case of Krishnan & Anr. Vs. Krishnaveni and Anr. (1997) 4 SCC 241. Some of the observations made in this regard are reproduced hereinbelow for the sake of reference: “6. Section 401 of the Code gives to every High Court power of revision. Sub-section (1) of the said section provides that in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389 and 391 and on a Court of Sessions by Section 307. Apart from the Crl.M.C.No.4024/2008 Page 5 of 15 express power under Section 397(1), the High Court has been invested with suo motu power under Section 401 to exercise revisional powers. In addition, Section 482 saves inherent powers of the High Court postulating that "Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." Section 483 enjoins upon every High Court to so exercise its continuous superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates. It is, therefore, clear that the power of the High Court of continuous supervisory jurisdiction is of paramount importance to examine correctness, legality, or propriety of any finding, sentence or order, recorded or passed as also regularity of the proceedings of all inferior Criminal Courts. 7. It is seen that exercise of the revisional power by the High Court under Section 397 read with Section 401 is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. The Court of Session and the Magistrates are inferior Criminal Courts to the High Court and Courts of Judicial Magistrate are inferior Criminal Courts to the Sessions Judge. Ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and Section 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under Section 401 to exercise the revisional power on the grounds mentioned therein, i.e., to examine the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior Court, and to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinates Courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior Criminal Courts or to prevent miscarriage of justice. 8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its juridical process or illegality of sentence or order. 9. The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved by the Code. The object of Section 397(3) is to put a bar on simultaneous revisional applications to the High Court and the Court of Sessions so as to prevent unnecessary delay and multiplicity of proceedings. As seen, under Sub- section (3) of Section 397, revisional jurisdiction can be invoked by "any person" but the Code has not defined the word 'person.' However, under Section 11 of the IPC, 'person' Crl.L.M.C.No.4024/2008 Page 6 of 15 includes any Company or Association or body of persons, whether incorporated or not. The word 'person' would, therefore, include not only the natural person but also juridical person in whatever form designated and whether incorporated or not: By implication, the State stands excluded from the purview of the word 'person' for the purpose of limiting its right to avail the revisional power of the High Court under Section 397(1) of the Code for the reason that the State, being the prosecutor of the offender, is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as to deems proper. The object behind criminal law is to maintain law, public order, stability as also peace and progress in the society. Generally, private complaints under Section 202 of the Code are laid in respect of non-cognizance offences or when it is found that police has failed to perform its duty under Chapter XII of the Code or to report as mistake of fact. In view of the principle laid down in the maxim Ex debito justitiae, i.e., in accordance with the requirements of justice, the prohibition under Section 397(3) on revisional power given to the High Court would not apply when the State seeks revision under Section 401. So the State is not prohibited to avail the revisional power of the High Court under Section 397(1) read with Section 401 of the Code. 10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person - accused/ complainant - cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) or Section 397(2) of the Code. It is seen that the High Court has suo motu power under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. These malpractices need to be curbed and public justice can be ensured only when expeditious trial is conducted. 11-13. xxxxx 14. In view of the above discussion, we hold that though the revision before the High Court under Sub-section (1) of Section 397 is prohibited by Sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the Courts below. It remitted the case to the Magistrate for decision on merits after Crl.M.C.No.4024/2008 Page 7 of 15 consideration of the evidence. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power Under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal.” 11. The facts of this case needs to be analysed in the light of the ratio of the aforesaid judgments which circumscribe the powers vested in this Court under Section 482, 483 of Cr.P.C. whenever an attempt is made to again invoke the power of revision though in the garb of petition under Sections 482, 483 in view of the bar created under Section 397(3) Cr.P.C. once the petitioner has already availed the remedy of revision in respect of his grievance by approaching the Sessions Court. The ratio of the judgment, as quoted above, makes it abundantly clear that while the powers vested in this Court under Sections 482,483 Cr.P.C. are wide enough to still interfere in a case where even the revisional jurisdiction has already been invoked by the Sessions Court on a petition filed by the petitioner under Section 397(1) of the Cr.P.C. but it has to be exercised only in a case where there is grave miscarriage of justice or abuse of the process of Court or where the required statutory procedure has not been complied with or where there is failure of justice or that the order passed or sentence imposed requires correction. 12. Now coming to the factual matrix of this case, I find that the petitioner who is admittedly subordinate to the fourth respondent was subject to departmental action on account of certain Crl.L.M.C.No.4024/2008 Page 8 of 15 misconduct allegedly committed by him as mentioned in a note circulated by the fourth respondent who was competent to initiate such proceedings. It is on the basis of the said note that Dr.K.K.Siam, Joint Director (Admn.) who also happened to be a member of the SC/ST community issued a suspension order dated 1.6.2005, which reads as under:- “ORDER Whereas a case against Shri Gajraj Singh, Mortuary Attendant working at Malviya Nagar Colony Hospital in respect of criminal offence is under investigation. Now, therefore, the undersigned in exercise of the powers conferred by sub-rule(1) of Rule 10 of the Central Civil Servies (Classification, Control and Appeal) Rules, 1965 hereby placed the said Shri Gajraj Singh, Mortuary Attendant under suspension with immediate effect. It is further ordered that during the period that this order shall remain in force the headquarters of Shri Gajraj Singh, Mortuary Attendant should be Delhi and the said Shri Gajraj Singh, Mortuary Attendant shall leave the headquarters without obtaining the previous permission of the undersigned. His shall be paid subsistence allowance at half the basic pay under rule FR-53 till further orders. (K.K.Siam) JOINT DIRECTOR (ADMN.) DATED 1.6.05” 13. No doubt the aforesaid order makes a mention of the pendency of criminal offence against the petitioner being subject matter of investigation, this aspect had been clarified by a corrigendum issued by Dr.B.Nath on 23.11.2005 which reads as under: “CORRIGENDUM In partial modification of this Dte.Order No. F.7(19)/2005/DHS/VIG/HQ/20383 Dt. 1.06.05 in place of criminal offence may be read as misconduct & misbehaviour. Sd/ 23/11/05 Dr.B.NATH CMO(HQ)” 14. Despite issuance of the aforesaid corrigendum the order of Crl.M.C.No.4024/2008 Page 9 of 15 suspension continued against the petitioner which was not revoked. According to the petitioner, the mention of pendency of investigation in a criminal offence was added in the order of suspension by the authorities at the instance of the fourth respondent and therefore, despite the aforesaid clarification he continued his pursuit for registration of a case under the provisions of the SC/ST Act against the petitioner and for that purpose he filed an application before the ACMM under Section 156(3) Cr.P.C. with a prayer to issue a direction to respondent Nos. 1 to 3 to register a case against the fourth respondent. The said complaint was filed on 24.1.2006, that is, after the issuance of corrigendum. 15. In the aforesaid complaint the petitioner alleged that Dr.Rajiv Kumar, the fourth respondent, committed an offence under Section 3(1)(ix) of the SC/ST Act inasmuch as in his note sent to the higher officials Dr.Rajiv kumar gave a false and frivolous information to his superior officials about the investigation of a criminal case against the petitioner which resulted in his suspension as aforesaid and thus the said respondent committed an offence under Section 3(1)(ix) of the SC/ST Act and therefore, he was entitled to be booked for the said offence by registration of an FIR. 16. It is a matter of record that that the application filed by the petitioner under Section 156(3) Cr.P.c. was not a part of any complaint under Section 200 Cr.P.C. nor was filed along with a Crl.L.M.C.No.4024/2008 Page 10 of 15 complaint under Section 200 Cr.P.C. It was in these circumstances, the learned ACMM in her own wisdom sought a status report from concerned ACP and in pursuance thereto ACP Varsha Sharma filed a detailed report on 25.2.2006 informing the court that no criminal offence or any offence under the provisions of the SC/ST Act was made out against the respondent No.4, namely, Dr.Rajiv Kumar. 17. Taking into consideration the aforesaid report and also the fact that the letter of suspension was issued against the petitioner on 1.6.05 by Dr.K.K.Siam, Joint Director (Admn.) and the corrigendum dated 23.11.05 was signed by Dr.B.Nath CMO (HQ) as well as the report of the Disciplinary Committee comprising of three members which was constituted to enquire into the case of the petitioner, the learned ACMM found that the note of Dr.Rajiv Kumar dated 28.5.05 which was considered by the said Committee nowhere mentions about the pendency of any criminal offence against the petitioner. In the aforesaid note, it was alleged by Dr.Rajiv Kumar that, “During the stay of Sh. Gajraj Singh in Malviya Nagar Hospital w.e.f. 17.3.2004 his conduct has not been statisfactory as there had been various incidences of willful insubordination; refusal to carry out reasonable directions/orders of superior, disrespect to seniors etc To substantiate these charges, statements given by MO I/C Pharmacy (page 6-7) & ANS (page 8-9) regarding the work and conduct of Sh.Gajraj Singh were also provided to the Committee.” 18. With regard to corrigendum dated 23.11.2005 issued in respect of earlier order of suspension of dated 1.6.2005, the ACMM also observed that even if there is any error in the order 1.6.2005 Crl.M.C.No.4024/2008 Page 11 of 15 the same is committed by K.K.Siam, Joint Director (Admn.) and Dr.Rajiv Kumar has no concern with the same and the said error appears to be unintended and in this regard, the learned ACMM also took note of the fact that Dr.K.K.Siam also belong to SC category and for that reason he could not have been proceeded against under the said Act. 19. Some other relevant observations made by the learned ACMM are also reproduced hereunder: “Coming now to the submissions made by the learned counsel for the complainant that once a complaint is filed under the provisions of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 this Court and the IO have no option but to register an FIR. Such an argument in the view of this court is indefensible since this court is vested with inherent powers to do the right and to undo the wrong on principle of quando lex aliquid alicui conce dit, concedere videtur et id since quo res ipsa esse non protest and such powers are required to be exercised ex-debiteo justitiae i.e. to do real and substantial justice which is the view taken by the Supreme Court in the case of State of Orissa and Anrs. Vs. Sanor Kumar Sahoo in 2006 (1) JCC 67. Justice is Truth and Administration of Justice being the strongest pillar of the democracy this Court is under an obligation to ensure that the authority of the court is used for advancement of justice. Any attempt on the part of the complainant to misuse or abuse the same under the cover of a special legislation meant for protecting the interest of a particular section of the society, is required to be dealt with sternly. The statement of Object and Reasons of the Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act 1989 provide that it is a Special Legislation to check and deter crimes against the persons belonging to the Scheduled Castes and Scheduled Tribes and to prevent the commission of atrocities against the members of the Scheduled castes and Scheduled Tribes. Being a special social legislation involving stringent provisions which do not even provide for an anticipatory bail, it is all the more necessary for this court to ensure that the same are not misused or abused by persons to peruse their personal agendas. This legislation has been enacted with a sole object to prevent the commission of offences and atrocities against the members of Schedule Castes and Scheduled Tribes and any abuse of the same tends to dilute its