- (1.) The petitioner by means of the present petition seeks to invoke the inherent powers of this Court under Section 482 of the Code of Criminal Procedure Code, 1973 (hereinafter referred to as Cr.P.C. for brevity) to quash the entire proceedings being case No.C/4851 of 2010 under Sections 500/501 of the Indian Penal Code pending before the Court of Learned Judicial Magistrate, 4th Court, Alipore. South-24-Parganas. Since at the outset challenge has been laid on behalf of the O.P. No.2 against the maintainability of this Revisional Application, the instant hearing arose accordingly.
(2.) Mr. Basu, Learned Senior Counsel appearing on behalf of the O.P. No.2 submitted that the O.P. No.2 has filed the case being case No.C4851 of 2010 before the Court of Chief Judicial Magistrate, Alipore, South 24- Parganas on 09.07.2010 alleging commission of offence under Section 500 read with Section 501 of the Indian Penal Code against the present petitioner/accused. The Learned Chief Judicial Magistrate took cognizance and thereafter transferred the case to the Court of Judicial Magistrate, 4th Court, Alipore for disposal and the Learned Transferee Magistrate after examining the complainant and on perusal of the materials issued process under Section 500/501 IPC against the petitioner/accused on 26.07.2010. Thereafter, the accused entered into appearance and she was released on bail. Thereafter on 21.12.2012 she was examined under Section 251 Cr.P.C. and she pleaded not guilty and claimed to be tried. Accordingly the case was adjourned to 1st April, 2013 for recording evidence. Thereafter the case was adjourned on some dates and finally it was fixed for recording evidence on 21.05.2014. At that stage the petitioner has come up with the instant Revisional Application under Section 482 Cr.P.C. which was filed on 14.05.2014. On this factual background Mr. Basu argued that the instant Revisional Application cannot lie and the inherent powers of this Court should not be invoked since it has been preferred after the lapse of almost four years after the Learned Magistrate issued process on 26th July, 2010. He further pointed out that this order issuing process matters most against the present petitioner and subsequent proceedings are merely consequential. He further contended that this summoning order is not an interlocutory order and was a very much revisable order and therefore, the petitioner should have challenged this order in revision within the period of limitation. Since that available remedy has not been taken recourse to by the petitioner, the instant application under Section 482 Cr.P.C. is not maintainable and this Court would not be justified in interfering with the proceedings of the Lower Court by exercising its inherent power under Section 482 Cr.P.C. He further submitted that the law is well-settled on the point that when an order not being interlocutory in nature can be assailed in the High Court in Revisional Jurisdiction under Section 397 of the Cr.P.C., then invoking of the inherent jurisdiction of the High Court under Section 482 of the Cr.P.C. is barred because that would amount to an attempt to circumvent the provisions of 397 or Section 401 Cr.P.C. He placed reliance on the decision of the Hon'ble Supreme Court (Mohit alias Sonu & Anr. V. State of U.P. and Anr, 2013 AIR(SC) 2248) in order to substantiate such submission. Mr. Basu continued to contend that although there is no period of limitation fixed by the statute for filing an application under Section 482 of the Cr.P.C. but that does not give licence to any party to file such application at any point of time at his sweet-will but the same should be filed within a reasonable time. In the instant case since the summoning order is the most material order which has affected the right of the petitioner adversely, she could have approached this Court under Section 397 Cr.P.C. within a period of 90 days which period has been fixed by the statute (vide Article 131 of the Limitation Act,. 1963). Therefore in all fairness a period of 90 days should have been the reasonable time to invoke the jurisdiction of this Court under Section 482 of Cr.P.C. But the petitioner did not choose to tread that path and has approached this Court after a long long lapse of almost four years and that too without spending even a single word justifying such belated approach. Thus, according to Mr. Basu, the instant Revisional Application is liable to be dismissed only on that count alone. He referred to the decisions (Gopal Chauhan V. Smt Satya & Anr, 1979 CrLJ 446), (Bata @ Batakrushna Behera and Ors. V. Anama Behera, 1990 CrLJ 1110), (Jamuna & Ors. V. S. Panja @ Samaresh Panja & Anr, 1986 CalCriLR 269), (Londhe Prakash Bhagwan V. Dattatraya Eknath Mane and others, 2013 6 Supreme 517) and (Chobhan Mallick V. The State of West Bengal, 2013 3 CalCriLR 428) in support of his contention. He also cited two unreported judgments one of this High Court passed in CRR No.4326 of 2007 in the case of Sanjoy Agarwal V. State of West Bengal and Anr. and the other of Delhi High Court passed in connection with Criminal M.C. No.1656 of 2011 passed on 24.08.2011 in the case of Rajesh Chetwal V. State, in this regard.
(3.) Mr. Chatterjee, Learned Counsel appearing on behalf of the petitioner, on the other hand, submitted that the instant Revisional Application is an application under Section 482 of the Cr.P.C. There is no time limit or embargo provided in the statute for exercising inherent powers which can be exercised at any stage in order to do justice. He further contended that simply because a revision petition is maintainable, the same by itself would not constitute a bar for entertaining an application under Section 482 of the Code. Similarly availability of an alternative remedy of filing an appeal is not an absolute bar in entertaining a petition under Section 482 of the Code. Therefore, this Court should hear out and adjudicate the revision on merit without dismissing it as not maintainable. He cited the decisions of the Hon'ble Supreme Court (Dhariwal Tobacco Products Ltd. & Ors. Vs. State of Maharashtra and Anr, 2009 2 SCC 370) and (Punjab State Warehousing Corporation Faridkot V. Shree Durga Ji Traders & Ors, 2011 14 SCC 615) in support of such contention. He contended yet further that the powers under Section 482 is an extra ordinary one and it is quite different from the revisional powers conferred under Section 397 of the Code. In the instant case the application under Section 482 has been filed for quashing the entire proceedings and it is not directed against any particular order. Therefore, the present proceeding is not barred by limitation. Further, according to him the provisions of Articles 226 and 227 of the Constitution and Section 482 of the Code are devised to advance justice and not to frustrate it. So this Court should exercise its discretionary power to prevent miscarriage of justice. Mr. Chatterjee continued to contend that the instant Revisional Application was admitted by this Court and also an interim order of stay was granted which has been extended from time to time. Therefore, it is apparent that this Court was prima facie satisfied about the maintainability of the petition otherwise it would not have been entertained at all. More over when any period of limitation for filing an application under Section 482 Cr.P.C. has not been prescribed by the statute the Court cannot apply such provision by implication. He referred to the decisions (Shri D.J. Sen & Ors. Vs. The State & Anr, 2002 CrLJ 4621), (Pepsi Foods Ltd. & Anr. Vs. Special Judicial Magistrate & Ors, 1998 SCC(Cri) 1400), (Sree Sree Iswar Sridhar Jew Vs. Jnanendra Nath Ghose & Ors, 1960 AIR(Cal) 718 and (France B. Martins & Anr. Vs. Mafalda Maria Teresa Rodrigues, 1999 6 SCC 627) in order to justify his contention.;