S R MISRA Vs. MD AMINUDDIN

JUDGEMENT

(1.) THIS Rule is directed against two orders passed by the learned Judicial Magistrate, sealdah and also for quashing of a criminal proceeding pending before the said Magistrate. "the complainant opposite party filed a complaint under section 420 of the Indian Penal Code against the petitioner before the learned judicial Magistrate, Sealdah. The opposite party is a partner of one Messrs. Md. Usman and Company dealing with second hand drums. It was alleged in the complaint that in October, 1975 the accused petitioner approached the opposite party-Complaint inspected the drums and persuaded him to sell 2200 drums on cash payment on delivery and also to supply the Sales Tax Declaration forms on delivery. The accused assured the complainant that there is nothing to worry and that being allured by such assurance of the accused the peitioner delivered 2200 Drums between November, 1975, and December, 1975 against, challans. When the, price amounting to Rs. 25,831. 30 Paise on account of such delivery of Drums was demanded the accused gave the complainant two post dated cheques for rs. 4500/ - in the months of February, 1976 and April, 1976, and promised to pay the balance by May, 1976. But the accused neither paid the balance money nor delivered the Sales Tax Declaration forms to the complainant inspite of several takids. Ultimately. on 17. 1 77 the accused denied the transaction. On the basis of such complaint process under section 420 of the Indian Penal Code was issued and a general search warrant was also issued for the seizure of the sales Tax Declaration Forms. The accused petitioner appeared before the learned Magistrate and was granted bail. He filed an application under section 205 of the Code of Criminal procedure for exemption. of personal appearance but this was rejected by the learned Magistrate by his order dated 2. 3. 77. On 12. 3. 77 the learned Magistrate also rejected the application of the accused petitioner for return of the ceaped Sales Eax. Declaration Forms, it is as against these two orders dated 2. 3. 77 and 12. 3. 77 the present Rule was obtained. The Rule is also for quashing of the proceeding.

(2.) MR. Balai Chandra Roy, learned advocate appearing for the petitioner submitted that the petition of complaint on the face of it does not make out a case under section 420 of the Indian penal Code and that it contains at least three deliberately false statements and that the continuation of the proceding would amount to abuse of the process of the court. Mr. Roy submitted further that the learned Magistrate was wrong in issuing a general search warrant in respect of the Sales Tax Declaration forms and in seizing such forms valued at Rs. 6,30,000 while the claim of the complaint amounts to Rs. 25,000/- and odd. Mr. Roy also had grievance against the order of the learned Magistrate rejecting the application of the petitioner under section 205 of the Code. Mr. Ram kamal Sanyal learned Advocate appearing for the complainant opposite party took a preliminary objection regarding the maintainability of the president application on the ground that the two impugned orders were inter-locutory orders and as such this Court would not entertain the application in view of the provision of sub-section (2) of section 397 of the Code of Criminal procedure Mr. Sanyal also submitted that the ingredients of the offence of cheating air present in the petition of complaint. Mr. Surathi Mohan Sanyal, learned advocate appearing for the State supported the contention of the learned advocate for the complainant opposite party.

(3.) HAVING heard the learned Advocate for the respective parties and on a consideration of the materials before me I am of the view that the continuation of the present proceeding would amount to an abuse of the process of the court and as such this court in exercise of its inherrent power under section 482 of the Code should for securing the ends of justice quash the proceedings. In view of ray above decision I need not go into the propriety of the other two impugned orders passed by the learned Magistrate. At the same time I may point out that the two impugned order could not be said to be interlocutory orders inasmuch as those orders, so to say, finally decided the prayer of the petitioner regarding his attendance in court through his were and also for return of the Sales Tax declaration Forms during the trial. In this connection I may profitably refer to a decision of the Supreme Court in the case of Madhu Limaye vs. The state of Maharashtra reported in (1977) 4 Supreme Court Cases, 551. The said decision has made a harmonious construction of the provisions in section 397 (2) and 482 of the Code of criminal Procedure. It has laid down that it was not the intention of the legislature when it retained the revisional powers of the High Court that only those orders would be revisable which was passed on the final determination of the action but which were not appealable under the Code. The legislature on the one hand has kept intact the revisional power of the high Court and on the other put a bar on the exercise of that power in relation to an interlocutory order. The real intention of the legislature was not to equate the expression "interlocutory order" as invariably to converse of the words "final order". There may be an order passed during the course of the proceeding which may not be final but yet it may not be an interlocutory order pure and simple. By a Rule of harmonious construction of sub-section (1)and (2) of section 397 of the Code it must be held that the bar in sub-section (2) is not meant to be attracted to such kinds of intermediate orders. It is neither advisable nor possible to make a catalogue of orders to demonstrate which kind of orders would be interlocutory and which would be final and then prepare an exhaustive lists of those types of orders which would fall between the two. Inherent powers of the high Court will come into play in a case which clearly bring about a situation which is an abuse of the process of the court or for the purpose of securing ends of justice. There is nothing contained in section 397 (2) of the Code which can limit or affect the exercise of the inherent powers by the High court in a situation as stated above.