RAJINDER MOTWANI Vs. DAULAT RAM

JUDGEMENT

(1.) Application on 10.2.1988 for quashing the prosecution and discharging the accused. Reply to this application was filed on 3.11.1988. With the said reply, a list of the goods which were found missing, was filed being Ann. 'A' to said reply. It appears that this fact escaped the attention of both the Courts below and although the charge was framed five years after the filing of the list, there was no mention of such a list and in fact, the Magistrate found that no list of the goods missing had been filed. It is acceptable that a person may not remember all the goods that are stored in the godown without reference to his records. But it is not acceptable that throughout the time when the enquiry by police was in progress, the complainant had no occasion to refer to his books of accounts or stock registers and furnish an inventory of the goods found missing. Filing of an inventory in reply to Misc. Application in the manner it was done, which was again unsupported by relevant entries in the stock register without any explanation for the complainane's inability to file it earlier before the investigating agency is not acceptable and the order of MM could not be faulted on this account. In any event, it is not a fit case meriting intereference u/S. 482 of Or. P.C. In this Connection, a reference be made to Supdt. and Remembrancer vs. Anil Kumar 1979 (4) S.C.C. 274, wherein it was held that. "It may be remembered that the case was at the stage of framing charges: the prosecution evidence had not yet commenced. The Magistrate had, therefore, to consider the above question on a general consideration of the materials placed before him by the investigating police officer." The Sessions Court, however, has committed serious errors of law and has misdirected itself by ignoring Sections 443 and 445 and holding that the criminal trespass, as defind u/S 442, is a necessary ingredient of even lurking house trespass. Both the sections are quite distinct and the provisions of one cannot be read into the other S. 443 is quite independent of S. 442 and the offence is complete as soon as it is shown that a person has taken precautions to conceal house trespass from some person, who has a right to exclude or eject the trespasser from a building, tent or vessel, which is the subject of a trespass. In the present case, not only locks were opened and replaced by the landlord's own locks, but the factum of such replacement was tried to be concealed by obstructing the passage and putting huge boxes in front of the entrance to the godown. The Sessions Court has committed serious errors of law in construing this act as one covered by S. 341 only, i.e., the criminal restraint. Such inference could be drawn if the landlord had super imposed & put his own locks over and above the tenant/ complainat's locks and not replaced those by the landlord's own locks. The Sessions Court has misinterpreted the provisions of law, which have resulted in grave miscarriage or justice and abuse of process of law.

(2.) Counsel for the respondent has raised a preliminary objection that the present petition is in the nature of a second revision against the order of the Sessions Judge and has relied upon the case of Dharam Pal vs. Ram Shree, 1993 (1) SCC 435 In that case, the Hon'ble Supreme Court was concerned with the provisions in the face of Section 397(3) of Cr. P.C., which had imposed a bar on the powers of the High Court & had laid down that where revision is barred u/S 397(3) Cr. P.C., powers of the High Court u/S. 482 Cr. P.C. cannot be invoked. While considering that provision, Supreme Court did not over rule or declare the law already laid down by it in the case of At C.D. vs. Ram Kishan Rohatgi, 1983(1) MCC 1== AIR 1983 SC 67, wherein the Hon'ble Supreme Court had clearly laid down : "This provision (S. 482 Cr. P.C.) confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the Court has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by the subordinate Courts. 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."

(3.) Hon'ble Supreme Court had an occasion to consider the position under law again in (Crl.) No. 3768/94, "Jitender Kumar Jain vs. Stale D./on 23 1.95 laying down "It is true that a second revision petition does not lie before 249 the High Court when one is dismissed by the Court of Sessions. Still the Court of Session is a Court subordinate to the High Court and, as such, its proceedings are open to scrutiny by the High Court to exercise of its inherent power u/S. 482 of the Cr PC. The High Court in these circumstances, should not have dismissed the petition of the appellent on the premise as it has done. It is otherwise open to the High Court not to interfere in a matter when examining a case under Section 482 of the Code of Criminal Procedure." , In Stale of Bihar vs. Murad AH Khan, AIR 1989 SC 1 (para 6), Hon'ble Supreme Court observed : "It is true that jurisdiction under Section 482, Cr. P.C., which saves the inherent power of the High Court, to make such orders as may be necessary to prevent abuse of the process of any Court or otherwise to secure the ends of justice, has to be exercised sparingly and with circumspection."