1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Writ Petition No.464 of 2006 Dr. Chandrashekhar Meshram ...Petitioner Versus Shri Santosh Govindrao Ladkhedkar and another ...Respondents ----------------------------------------------------------------------------------- Shri K.H. Deshpande, Senior Counsel, with Shri R.K. Deshpande, Counsel for Petitioner. ----------------------------------------------------------------------------------- Coram : R.C. Chavan, J. Dated : 10 th October, 2006 Oral Order : 1. By this petition under Article 227 of the Constitution read with Section 482 of the Code of Criminal Procedure, the petitioner seeks to have the order passed by the learned Judicial Magistrate First Class, Darwha, on 10-8-2006 in Criminal Complaint Case No.298 of 2005 quashed and set aside. 2. Respondent No.1 Santosh Govindrao Ladkhedkar had filed a 2 criminal complaint against the petitioner and two others for the alleged commission of offences punishable under Sections 336, 337 and 338 of the Penal Code on the ground that the petitioner and two other accused had been negligent in treating the complainant's wife leading to severe complications in her mental and physical condition. The complainant, therefore, sought prosecution of the petitioner and two other doctors for offences punishable under Sections 336, 337 and 338 of the Penal Code. After examining the complainant, the learned Judicial Magistrate First Class passed the impugned order directing issuance of process against the petitioner and two others for offences punishable under Sections 336, 337 and 338 of the Penal Code. Aggrieved thereby, the petitioner has approached this Court by filing the present petition alleging that even on the basis of the facts enumerated in the complaint, offences punishable under Sections 336, 337 and 338 of the Penal Code were not made out and, therefore, the order directing issuance of process was thoroughly unwarranted and unjustified. 3. I have heard Shri K.H. Deshpande, the learned Senior Counsel for the petitioner, on the question as to whether the petition ought to be entertained by this Court in the face of the fact that a remedy by way of revision is available to the petitioner before the Court of Session. 3 4. The learned Senior Counsel submitted that by the present writ petition, jurisdiction under Article 227 of the Constitution and Section 482 of the Code of Criminal Procedure has been invoked, and not revisional jurisdiction under Section 397 of the Code. He submitted that there are no fetters on the exercise of jurisdiction under Article 227 of the Constitution or Section 482 of the Code of Criminal Procedure and that this jurisdiction has to be exercised to prevent abuse of process of Court, which may result in inconvenience or embarrassment of an exceptional character. While exercise of revisional jurisdiction is subject to certain limitations, there are no such fetters on the exercise of powers under Article 227 of the Constitution or Section 482 of the Code. The jurisdiction under these two provisions not only recognizes the powers of the High Court to check abuse of process of Court, but also imposes a duty to act when necessary. The learned Senior Counsel, therefore, submitted that existence of revisional jurisdiction or availability of proceedings by way of revision before the Court of Session cannot result in abridging the powers of the High Court under Article 227 of the Constitution or Section 482 of the Code of Criminal Procedure. 5. The learned Senior Counsel next submitted that for exercise of jurisdiction under Section 397 of the Code of Criminal Procedure, the 4 impugned order has to be other than an interlocutory order. This jurisdiction is not exercisable in order to correct interlocutory order. He submitted that taking cognizance of a case or issuance of process may or may not amount to an interlocutory order and that this question may not be free from doubt. Therefore, it may be argued that an order directing issuance of process is not amenable to the remedy under Section 397 of the Code. The contention of the learned Senior Counsel could have been accepted, but for the pronouncement in the case of Adalat Prasad v. Rooplal Jindal and others, reported in JT 2004(7) SC 243. The view that a Magistrate could recall his own order directing issuance of process and, therefore, the order was interlocutory in nature and consequently not amenable to revisional jurisdiction of the Court of Session, has now given way to the view that a Magistrate has no power to recall his own order and that the order is, therefore, amenable to the revisional jurisdiction of the Court of Session or the High Court. Therefore, since two views in this matter are not possible now, there should be no difficulty in holding that the order in question is amenable to revisional jurisdiction, which vests concurrently in the Court of Session as well as this Court. 6. The learned Senior Counsel next submitted that even so there 5 is no bar for this Court to exercise its powers under Article 227 of the Constitution or Section 482 of the Code if the facts of the case so warranted. He submitted that the facts in this case make it imperative that the petitioner must be allowed to invoke the constitutional jurisdiction and the powers which inhere in this Court. Relying on a decision of this Court in the case of Madhavlal Narayanlal Pittie v. Chandrashekhar Chaturvedi and others, reported in 1976 Mh.L.J. 167, the learned Senior Counsel submitted that since a party does not have a right to prefer a revision and that the revisional jurisdiction is discretionary in nature, there is no guarantee that such jurisdiction would be exercised by the revisional Court in order to correct the injustice that may have occurred. He submitted that in Madhavlal's case, the Court was considering whether a party aggrieved by an order of Magistrate was required to file a revision before the Sessions Court or whether the High Court could deal with the revision application if it thought fit. Thus the case concerned the concurrent jurisdiction vested in the Court of Session as well as the High Court, and the implication of the general rule that ordinarily a litigant must approach the lowest Court competent to deal with his lis. In that case, the Division Bench was considering judgment of learned Single Judge of this Court, who had held 6 that he had no hesitation in coming to the conclusion that the revision application must be filed in the Court of Session and, therefore, the application ought to be returned for being filed in tht Court. In this context, in para 18 of the judgment, the Court observed that if the contention that the High Court has no jurisdiction to entertain a revision application were to be accepted, then the High Court would not be in a position to entertain a further application at the instance of a party, which had challenged the order before the Court of Session. The Court observed that in such a situation the party, which approached the Court of Session and was aggrieved by the judgment of the Court of Session, would have to be satisfied with that order, since its application under Article 227 of the Constitution may or may not be entertained by the High Court, as it was an exceptional and purely a discretionary remedy. The Court, therefore, disapproved the observations of the learned Single Judge in Rachappa v. M.B. Ganpur. 7. It may be seen that the question before the Division Bench deciding the aforesaid case was not whether a party could invoke jurisdiction of this Court under Article 227 of the Constitution, when an equally efficacious remedy was available to it in the form of a revision under Section 397 of the Code of Criminal Procedure. The question was 7 whether because of the availability of revisional jurisdiction before the Court of Session, the power of the High Court to entertain a revision directly stood circumscribed and the Court held in the negative. There can be absolutely no doubt about the power of the High Court to entertain a revision directly without making a party go through the proceedings in a Court of Session. However, it must never be overlooked that the number of Judges available for dealing with the revisions in the High Court is a few as compared to a large number of Judges in the Courts of Session, who can deal with these revision applications and examine the necessity of interference in exercise of revisional jurisdiction at least in a bulk of cases with a few cases ultimately landing in the High Court. In such cases, notwithstanding the bar for entertaining a second revision, the High Courts have been entertaining applications under Section 482 of the Code of Criminal Procedure or Article 227 of the Constitution, should it be brought to the notice of the High Courts that there was an abuse of process of Court or a situation has been created, which would inflict irremediable injustice upon a party. This can be seen from the relative scope of Sections 482 and 397 of the Code of Criminal Procedure delineated by the Supreme Court in the famous of case of Madhu Limaye v. State of Maharashtra, reported 8 in 1978 Mh.L.J. 1, on which the learned Senior Counsel placed reliance. 8. The learned Senior Counsel next relied on a judgment of this Court in the case of Shriram Damodar Mulay and another v. Thakurdas Ramnarayan Sharma and another, reported in 1977 Mh.L.J. 581. In that case too, the question was one of process issued by the Magistrate and it was contended that the order was interlocutory in nature, making a revision untenable, which position has now changed, as stated in the earlier part of this order. Aware of the fact that revisional jurisdiction may not be available to the applicant in the said case, the applicant had filed the application under Section 482 of the Code invoking inherent powers of the Court. In this context, the Court proceeded to entertain the application observing that inherent powers under Section 482 of the Code cannot be controlled by the provisions of Section 397 of the Code. 9. The learned Senior Counsel relied on a judgment of the Supreme Court in the case of Dr. Suresh Gupta v. Govt. of NCT of Delhi and another, reported in (2004) 6 SCC 422. In that case, the question was one of quashing the proceedings for offence punishable under Section 304-A of the Penal Code against a doctor, who was alleged to have been a negligent in performing a surgery, which led to death of a patient. In this context, the Supreme Court considered the requirements 9 for attracting the provisions of Section 482 of the Code of Criminal Procedure. The Court observed in para 8 of the judgment that it was settled position that inherent powers for quashing criminal proceedings could be invoked only in cases where on the face of the complaint, or the papers accompanying the same, no offence is made out for proceeding with the trial and that in such case, the High Court would be justified in quashing the proceedings. The High Court in that case had refused to quash the proceedings and upon consideration of the facts, the Supreme Court set aside the orders of the Magistrate as well as the High Court and quashed the criminal proceedings against the doctor. The learned Senior Counsel for the petitioner submitted that the facts in that case are similar to the facts of the case at hand and, therefore, there is enough justification for exercising inherent powers or the constitutional jurisdiction of superintendence over the subordinate Courts, rather than asking the petitioner to go to a Court of Session for redressal of his grievance. 10. Since at this stage, it may not be appropriate to examine the merits, or to express any opinion about the justification for issuance of process against the petitioner, all that has to be found out is whether the jurisdiction inhering in this Court could be allowed to be invoked in 10 face of the fact that the petitioner has an alternate remedy available to him. In my humble opinion, though the decision of the Supreme Court in the case of Dr. Suresh Gupta would show that though inherent powers could be exercised to quash such a proceeding, the judgment cannot be an authority for the proposition that a party may not be asked to first exhaust the other remedies available to it. The question as to whether such a petitioner could be asked to approach a Court exercising revisional jurisdiction had not been raised in Dr. Suresh Gupta's case. 11. The learned Senior Counsel next submitted that in the case of G. Sagar Suri and another v. State of U.P. and others, reported in (2000) 2 SCC 636, the Apex Court had upheld the exercise of jurisdiction under Section 482 of the Code of Criminal Procedure even when an application for discharge was pending before a Magistrate. He, therefore, submitted that availability of another remedy has never been a bar for exercise of inherent jurisdiction by the High Court. The learned Senior Counsel submitted that in the case of Ram Biraji Devi and another v. Umesh Kumar Singh and another, reported in (2006) 6 SCC 669, the Supreme Court had considered the situations in which inherent jurisdiction of the High Court should be exercised and had observed in para 11 of the judgment that there cannot be any disagreement to the well-settled 11 proposition of law that the High Court should exercise its inherent powers in extreme exceptions to quash an FIR or a complaint. When the process issued clearly amounted to an abuse of process of Court, interference by the High Court was held to be in the interest of justice. 12. I have carefully considered the contentions raised by the learned Senior Counsel. There can be no doubt that existence of revisional jurisdiction under Section 397 of the Code of Criminal Procedure cannot be read as putting any fetters or restrictions on the powers, which inhere in this Court, to undo injustice, or the powers, which are recognized to exist in this Court under Article 227 of the Constitution to see that the lower Courts and the Tribunals discharge their duties properly. However, it does not follow that because the powers exist, or the High Court has such an authority, the High Court must exercise it merely because a case is brought to it, when the party has an equally efficacious remedy of approaching a lower Court. The principle that a party must approach the lowest Court competent to redress its grievance need not be given a go-bye unless extra ordinary circumstances are made out to show that recourse to remedy to such forum would be futile. The Bench of Bombay High Court at Nagpur caters to eleven districts in Vidarbha and ordinarily the work 12 of dealing with applications under Section 482 of the Code of Criminal Procedure or petitions under Article 227 of the Constitution is assigned to one Judge. If the Court were to indiscriminately allow the petitions to be filed for correcting errors committed by the Magisterial Courts, it would be impossible to deal with the inflow and the system itself would collapse. There are at least seventeen sessions divisions in the area over which Nagpur Bench of Bombay High Court exercises jurisdiction, with not less than fifty Sessions Judges working in such sessions divisions. The party would have a better chance of getting expeditious relief, if it approached the Court of Session rather than rushing to this Court. 13. At the cost of repetition, let it be clarified that existence of revisional jurisdiction in the Court of Session is not and can never be a fetter on the powers of this Court under Section 482 of the Code or Article 227 of the Constitution. However, ordinarily, recourse to inherent powers would be restricted, if the party has another remedy available. To put it in other words, invocation of inherent powers should be allowed only when the party is left with no remedy to redress the injustice that it is made to suffer. Since such is not the present case and since it is not shown that the petitioner suffers from any disadvantage in 13 approaching the competent Court of Session for challenging the order passed against him, this petition cannot be entertained. 14. Consequently, the petition is dismissed, leaving intact the liberty of the petitioner to approach the Court of Session on the grounds made out in this petition for challenging the impugned order. JUDGE PDL/-