G H BHATIA Vs. BHOLUMAL DHARMDAS

JUDGEMENT

(1.) This petition is for quashing the criminal proceedings instituted against the petitioner through a complaint before the Additional First Class Magistrate, Vijayawada, now pending before the District Magistrate, Krishna. The order impugned appears to be the same as was once called in question in Cr. R. C. 762 of 1954 brought by the petitioner and after full hearing was upheld by this court on 24-3-1954. The present petition filed for a second time probably would not have been admitted had this feet been brought to the knowledge of this court in time. Since it has been admitted, the point that falls for determination, is, whether the party should be allowed to agitate afresh the matter which has been already determined by this court in exercise of its revisional powers.

(2.) It is important to note that the complaint was filed as early as in July 1951. Though more than five years have elapsed, not a single witness has been allowed to be examined so far. Apart from the various, transfer petitions filed from tune to time, the accused had come to this court several times on one ground or the other and though in Cr. R. C. No. 762 of 1954 there was a direction for speedy disposal of the case, there has been no progress in the trial of the case so far and a further stay has been necessitated by this petition.

(3.) The complaint was under Sections 500, 506 and 463 I. P. C. and it was registered under the first two sections. The challenge seems to lie to the propriety and correctness of this very first order of the magistrate. It is contended that the aggrieved party being the minor grand-daughter of the complainant the complaint filed without the leave of the court could not be registered in contravention of the mandatory provisions of section 198 Cr. P. C.It is conceded, however, that the complaint for an offence under Section 506 I. P.C. does not require the previous sanction or leave of the court. Of course, whether any offence of the kind is made out or not is altogether a different question; but having regard to the facts stated, it cannot be said that there is no foundation for such charge. As regards section 500 I. P. C. round which the whole argument revolves, the trial court was of the opinion that leave of the court is not necessary because the complainant was also the aggrieved person. This view has been upheld in revision by this court under the order referred to above. The learned counsel argues that since the order of this court passed in revision is not a judgment within the meaning of the term in Section 369 Cr. P.C. this court does not become functus officio and must dispose of this revision petition after re-hearing it on merits. The learned counsel has failed to show any provision which gives him a right to re-agitate the matter thus disposed of or casts a duty on the court to re-hear a revision petition. On perusal of Section 439 Cr. P. C. it is plain that the exercise of revisional powers subject to the limitations mentioned in that section are purely discretionary and no right is conferred upon any party to invoke this jurisdiction. That is the reason why Section 440 Cr. P. C. does not give any right to a party of being heard personally or by a pleader. Being discretionary, the powers should be exercised only in proper cases to avoid miscarriage of justice. It cannot therefore be said that this court will always interfere even on a question of law i. e. on point of jurisdiction, illegality or irregularity. It will not do so unless the alleged irregularity has caused a failure of justice. At any rate, when once a finding is given in exercise of these powers after full hearing, on no principle of law and justice it will be permitted to be re-opened. The authorities on the point are numerous. It is sufficient if I refer to In Re Kanakasabhai, AIR 1916 Mad 516; N. Appayya v. Dasari Venkatappayya, 17 Mad LW 23: (AIR 1923 Mad 276 (1); In Re Anif Sahib, AIR 1925 Mad 993; Nandlal Chunilal v. Emperor AIR 1946 Bom 276 and Debt Bux Singh v. Rex AIR 1950 All 299.The learned counsel on behalf of the petitioner laid great stress on the fact that the courts have inherent power to revise all interlocutory orders though not the judgments which have a finality in view of the provisions of Sections 369 and 430, Cr. P.C.