SHIV KUMAR SHARMA, J. - (1.) THE accused petitioners have already played an innings in respect of order dated July 15, 1995, of the learned Special Magistrate (Economic Offences) Jaipur, by filing S. B. Criminal Miscellaneous Petition No. 872 of 1995 invoking the provisions under Section 482 of the Criminal Procedure Code, 1973 (for short 'the Cr. P. C.'). This court, vide order dated April 24, 1997, treated the said miscellaneous petition asrevision under Section 397 of the Criminal Procedure Code, and forwarded it for' disposal to the court of the learned sessions judge, Jaipur District who transferred the case to the court of the special judge SC/ST (Prevention of Atrocities) Cases Jaipur (for short 'the special judge').
(2.) THE learned special judge vide his order dated August 23, 1997, dis -. missed the revision petition. The petitioners have now, in the second innings of the proceedings invoked the provisions of Section 482 of the Criminal Procedure Code again calling in question the order dated July 15, 1995, of the learned Special Magistrate (Economic Offences) Jaipur, along with the order dated August 23, 1993, of the learned special judge. The moot question is whether the petitioners can be permitted to invoke the provisions of Section 482 of the Criminal Procedure Code again. This question emerges in the wake of circumstances set out below - (i) The complainant non -petitioner Santosh Tyagi (for short complainant) on January 10, 1995, instituted a complaint against the petitioner in the court of the Special Magistrate (Economic Offences) Jaipur, (for short 'the trial court'). On February 15, 1995, the learned trial court took cognizance under Sections 63 and 116 of the Companies Act, 1956, and issued summons against the petitioners. (ii) The petitioners submitted an application under Section 204 of the Criminal Procedure Code on April 7, 1995, before the trial court objecting to taking of the cognizance and the issue of process requiring the personal presence of the petitioners. The petitioners stated in the application that on the merits the complaint issued by the complainant was wholly devoid of force and the offences alleged were not made out. It was also contended that the complaint as filed was not maintainable at the behest of the complainant who was not a shareholder and the trial court had no jurisdiction to sit over the matter. (iii) The trial court vide its order dated July 15, 1995, dismissed the said application holding that the proceedings against the company and its chairman and the directors were maintainable. (iv) The order dated July 15, 1995, of the trial court was called in question by the petitioners by filing a petition under Section 482 of the Criminal Procedure Code before this court. This court as already stated, treated the said petition as a revision and forwarded it for disposal to the court of the Sessions Judge Jaipur District from where the case was transferred to the court of the special judge who dismissed it vide its order dated August 23, 1997. The petitioners have assailed the aforesaid orders dated July 15, 1995, and August 23, 1997, in the instant miscellaneous petition. Mr. Padam Kumar Khetan, learned counsel appearing for the complainant raised a preliminary objection regarding the maintainability of the petition. Mr. Khetan canvassed that looking to the object with which Section 397(3) of the Criminal Procedure Code has been enacted, the powers under Section 482 of the Criminal Procedure Code cannot be invoked to neutralise the bar of Section 397(3) of the Criminal Procedure Code by styling the petition under Section 482 of the Criminal Procedure Code. Reliance was placed on Neeraj Kumar v. State of Rajasthan [1996] 2 WLC 215 (Raj).
(3.) ON the other hand, the contention of Mr. Alok Sharma, learned counsel for the petitioners is that in view of the principle laid down in the maxim ex debito justitiae, i.e., in accordance with the requirements of justice, the prohibition under Section 397(3) of the Criminal Procedure Code would not apply. Section 482 of the Criminal Procedure Code has a different parameter and is a provision independent of Section 397(3). Section 482 regulates the inherent powers of the court to pass orders necessary in order to prevent the abuse of the process of the court. Reliance was placed on Pepsi Foods Ltd. v. Special Judicial Magistrate [1997] 8 JT 705 (SC) ; P. R. Neelkanthan v. State of Rajasthan [1986] Crl LJ 1811 ; Central Bureau of Investigation v. Duncans Agro Industries Ltd. [1996] 87 Comp Cas 849 ; [1996] 5 SCC 591 ; Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR 1983 SC 67 and Krishnan v. Krishnaveni, AIR 1997 SC 987. Mr. Alok Sharma, learned counsel further contended that on the merits the complaint is wholly devoid of force and the offences alleged are not made out. The complaint is not maintainable at the behest of the complainant who is not a shareholder and the trial court has no jurisdiction to entertain the complaint.;