JUDGMENT
Vinod Prasad, J.
1. This writ petition has been filed by Raja Ram Dubey challenging the order dated 23.12.2006 passed by Sessions Judge, Allahabad in Criminal Revision No. 794 of 2006 Rajaram Dubey v. State. By the impugned Judgment the lower Revisional Court has rejected the revision filed by Raja Ram Dubey being Revision No. 794 of 2006 and had refused to discharge him for offences under Sections 408/120B I.P.C.
2. The back grounds facts of the case are that the petitioner was a Munshi of Late Sri A.D. Giri, senior Advocate of this Court who breath his last on 4.8.2003. After his demise, the petitioner was attached with Shashank Shekhar, Advocate. On 12.9.2003 Criminal Appeal No. 2308/1979 was listed in Court No. 38 on which date, according to the averments made in the writ petition, the petitioner informed the Bench Secretary that senior counsel engaged in the case had expired and that the parokar along with the assisting counsel had taken back the paper book. After that the petitioner, according to his version was not concerned with the aforesaid appeal any further. It is further averred that on 12/13.7.2005 the petitioner came to know that a non-bailable warrant has been issued against him on the basis of a first information report dated 28.10.2006. On obtaining the copy of the said F.I.R., he came to know that a F.I.R. has been lodged by Registrar Genera, Allahabad High Court, Allahabad, for offences under Sections 379 I.P.C. in respect of an incident which occurred on 12.9.2003 in respect of loss of record of Criminal Appeal No. 2308/1979 Ashok Kumar and Ors. v. state of U.P. And Ors. and also the record of the concerned Sessions Trial No. 34 of 1979. It was mentioned in the F.I.R. that Criminal Appeal No. 2308/1979 Ashok Kumar and Ors. v. State of U.P. was filed against the Judgment and order dated 31.7.1979 passed by II Additional Sessions Judge, Allahabad in Sessions Trial No. 34 of 1979 convicting and sentencing each of the applicants for offences under Section 302/34 I.P.C. The said appeal was listed for final hearing on 12.9.2003 in Court No. 38 at serial No. 2. The record of the criminal appeal as well as the record of Sessions Trial No. 34 of 1979 was not traceable and was reported to have been lost. The matter was reported to the Bench concerned and on 19.9.2003 the Hon’ble Court was please to pass following order:
The original file of the High Court as well as the record of lower court are not available the office has sent photo copy of paper book only. In the absence of original record the appeal cannot be taken up for hearing Office says that the record was sent to the Court. The Bench Secretary says that it was not received. Registrar General to take necessary action this regard and get original record traced out and submit report within two weeks. Sd/- Hon. U.S. Tripathi. Sd/- Hon (Mrs) M. Chaudhary. JJ.
3. It was further mentioned that on the basis of the aforesaid order an enquiry was initiated on 19.9.2003 and Sri R.P. Singh, Joint Registrar (Criminal) was appointed as Enquiry Officer, who submitted his report on 30.9.2003 with the request that R.B. Singh, Bench Secretary, Sri Ram Kailash, Peshi Clerk be given 10 days more time to trace out the record with further request that a thorough enquiry is required into the matter as the matter was very grave. In his report. Enquiry Officer has indicated that after going though the explanation by Ram Kailash, Peshi Clerk and Sri R.B. Singh, Bench Secretary, it transpired that Ram Kailash had gone to Court No. 38 on the date of the incident for verifying or checking whether all the files of cases listed in the cause, list is available or not. On the aforesaid recommendation of the inquiry officer a departmental enquiry was instituted and Sri H.C. Srivastava, Joint Registrar was interested with the said enquiry. An attempt was also undertaken to tract out the record but it failed. The matter was placed before The Acting Chief Justice and his Lordship vide letter dated 8.10.2004 was please to direct that the F.I.R. be lodged. With such averments the F.I.R. was registered at P.S. Cantt. against Sri R.B. Singh, Ram Kailash and others on 20.8.2004 at 4.15 P.M.
4. Sri S.K. Tripathi, I.O. recorded the statements of Sri Hinchha Prasad Shukla (Annexure No. 2), Ram Kailash Peshi Clerk (Annexure No. 3), R.B. Singh (Annexure No. 4), Suresh Kumar (Annexure No. 5) and then vide Annexure No. 6 the police opined that Ram Kailas is prima facie guilty of offence under Section 408 I.P.C. and therefore, charge sheet was being submitted against him. The Investigating Officer also found that R.B. Singh accused was wrongly nominated. The I.O. also opined that in view of the Judgment rendered by the Apex Court in Joginder Kumar v. State of U.P. Ram Kailash aforesaid is riot being. arrested. After the aforesaid opinion dated 21.2.2005, it transpires that the investigation was transferred to another Investigating Officer, Chhunnoo Singh, who made further investigation and recorded the statement of Ram Kailash, Peshi Clerk. In the aforesaid statement Ram Kailash had stated that the file was got whisked away in connivance with the Ram Gopai Awasthi, the peon of this Court and the petitioner and so ultimately charge sheet was laid against the petitioner.
5. It transpires that after the charge sheet was laid the accused persons argued on the question of charge. There said prayer of discharge was rejected by A.C.J.M., court No. 3, Allahabad on 26.9.2006 by recording a finding that so far as petitioner Raja Ram is concerned there is sufficient evidence to try him for offences under Sections 408/120B I.P.C. and therefore, the charges should be framed under the aforesaid sections and consequently on the said date 26.9.2006 the Trial Magistrate did frame the charges against the petitioner.
6. Aggrieved by the aforesaid framing of charge petitioner filed Criminal Revision No. 794 of 2006 before Sessions Judge, Allahabad, which was dismissed on 23.12.2006 by the Sessions Judge, Allahabad who also did not find it fit to discharge the petitioner.
7. Hence, the present writ petition has been filed with the prayer that the order of the Lower Revisional Court dated 23.12.2006 as well BS order of framing of charge dated 26.9.2006 passed by A.C.J.M., court No. 3, Allahabad be quashed by issuing a writ of certiorari. The second prayer in the writ petition is for issuing a mandamus directing the Additional Chief Judicial Magistrate, Allahabad to discharge the petitioner for the offences under Sections 408, 120B I.P.C In Criminal Case No. 1134 of 2005 State v. Suresh Chandra and Ors.
8. I have heard Sri Satish Trivedi, learned senior counsel in support of this writ petition and the learned A.G.A. in opposition.
9. Sri Satish Trivedi, learned senior counsel contended that in this case statement of R.B. Singh and Ram Kailash Peshi Clerk were recorded repeatedly. He contended that so far as the first two statements dated 19.1.2005 (Annexure No. 4) and second statement dated 29.4.2005 (Annexure No. 7) are concerned in those statements R.B. Singh has not named the applicant as one of the accused. He contended that in the third statement recorded on 2.5.2005 (Annexure No. 9), no offence is made out against the petitioner as the said statement his hit by Section 162 Cr.P.C. being a previous statement, which can be utilised only for the purposes of contradictions. He further contended that in the F.I.R. the petitioner is not named and the ingredients for making out offence under Sections 408/120B I.P.C. are missing in respect of the petitioner. He further submitted that for making out an offence the mentioning of ingredients of offences is sine qua non. He further submitted that in the trial P.W. I, P.W. 2 and P.W. 3 have been examined but from their evidence also no offence has been made out against the petitioner.
10. Learned A.G.A. on the other hand submitted that there is absolutely no merit in this writ petition, which is not maintainable. He further contended that Section 482 Cr.P.C. was the alternative remedy available to the petitioner and therefore, on the ground of alternative remedy this writ petition should be dismissed. He further submitted that prima facie evidence against the petitioner exists. Inviting the attention of the Court on pages 95, 96, 97 of this writ petition, which is the part of the impugned order passed by Additional Chief Judicial Magistrate, court No. 3, Allahabad, learned A.G.A. contended that there was sufficient reason to frame charges against the petitioner. He further submitted that the petitioner had filed a revision before learned Sessions Judge, Allahabad which too was dismissed. Learned A.G.A. submitted that at the stage of framing of charge the defence of the accused cannot be considered and in support of his contention he has relied upon a Judgment of the Apex Court Santosh Dea and Anr. v. Archna Guha And Ors. He has also relied upon the Judgment of this Court reported in 2006 ACC (55) 318 Raivir Singh v. State of U.P.
11. I have considered the submissions raised by both the sides and have gone through the arguments made in this petition. This case relates with the male-practice undertaken by the unscrupulous litigants and their associates. All those convicted accused persons in the trial who have got scanty chance of getting acquittal even in appeal resort to such type of practice, which must be curbed strictly because their nefarious design smudge the pious judicial procedure and bring the whole justice delivery system to a disrepute. The present case is one of such cases.
12. Criminal Appeal No. 2308 of 1979 was listed before Hon’ble U.S. Tripathi, J. and Hon. (Mrs) M. Chaudhary, J. in Court No. 38. The record of the appeal as well as the trial court record was stolen. From the perusal of the order passed by Additional Chief Judicial Magistrate, court No. 3, it is perceptibly clear that there was sufficient material to frame charges against the petitioner. It is an admitted fact that Late Sri A.D. Giri, Advocate was the counsel for the accused Suresh Kumar in the aforesaid appeal. At the stage of framing of charge only this much is to be seen by the trial court as to whether there is prima facie evidence to prosecute the accused or not. From the statement of the witnesses and from the material collected during the investigation the complicity of the petitioner with the aid of Section 120B I.P.C. cannot be ruled out. Hence it cannot be said that there was no material before the trial court to frame charges against the petitioner.
13. Moreover, the petitioner was aggrieved by an order of refusal to discharge passed by A.C.J.M., court No. 3, Allahabad. He had challenged the rejection of his prayer of discharge by the Trial Magistrate before Sessions Judge, Allahabad by filing a revision. His revision before the Sessions Judge, Allahabad too was dismissed by passing the impugned order dated 23.12.2006 (Annexure No. 13). The petitioner had an effective alternative remedy of challenging both the orders through an application under Section 482 Cr.P.C. as rejection of a revision does not takes away the extraordinary jurisdiction of this Court under Section 482 Cr.P.C. The power under Section 482 Cr.P.C. preserved with this Court is not eclipsed by the dismissal of revision of the aggrieved person. Section 397(3) Cr.P.C. does not obliterates the inherent power of the High Court under Section 482 Cr.P.C. It has been held by the Apex Court in AIR 1997 SC 987 Krishnan and Anr. v. Krishna Veni and Anr. that inherent power of this Court is not circumscribe or abridge by Section 397(3) Cr.P.C. It has been held in paragraph 6 to 10 of the aforesaid Judgment as follows:
6. Section 401 of the Code gives to every High Court power of revision. Sub-section (1) of the said section provides that in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389 and 391 and on a Court of sessions by Sections 307. Apart from the express power under Section 397(1), the High Court has been invested with suo motu power under Section 401 to exercise revisional powers. In addition, Section 482 saves inherent powers of the High Court postulating that “Nothing in this Court shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” Section 483 enjoins upon every High Court to so exercise its continuous superintendence over the Courts of Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates. It is, therefore, clear that the power of the High Court of continuous supervisory jurisdiction is of paramount importance to examine correctness, lugality, or propriety of any findings, sentence or order, recorded or passed as also regularity of the proceedings of all inferior Criminal Courts.
7. It is seen that exercise of the revisional power by the High Court under Section 397 read with Section 401 is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any findings, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. The Court of Session and the Magistrate are inferior Criminal Courts to the High Court and Courts of Judicial Magistrate are inferior Criminal Courts to the Sessions Judge. Ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and Section 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under Section 401 to exercise the revisional power on the grounds mentioned therein, i.e., to examine the correctness, legality or propriety of any findings, sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court, and to dispose of the revision in the manner indicated under Section 401 of the Code. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence and that its subordinates Courts do not exceed the jurisdiction or abuse the power vested in them under the Code or to prevent abuse of the process of the inferior Criminal Courts or to prevent miscarriage of justice.
8. The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401, upon the High Court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice. In addition, the inherent power of the High Court is preserved by Section 482. The power of the High Court, therefore, is very wide. However, High Court must exercise such power sparingly and cautiously when the Sessions Judge has simultaneously exercised revisional power under Section 397(1). However, when the High Court notices that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order is not correct, it is but the salutary duty of the High Court to prevent the abuse of the process or miscarriage of justice or to correct irregularities/incorrectness committed by inferior Criminal Court in its juridical process or illegality of sentence or order.
9. The inherent power of the High Court is not one conferred by the Code but one which the High Court already has in it and which is preserved by the Code. The object of Section 397(3) is to put a bar on simultaneous revisional applications to Hugh Court and the court of Sessions so as to prevent unnecessary delay and multiplicity of proceedings. As seen, under Sub-section (3) of Section 397, revisional jurisdiction can be invoked by “any person” but the Code has not defined the word ‘person.’ However, under Section 11 of the IPC, ‘person’ includes any Company or Association or body of persons, whether incorporated or not. The word ‘person’ would, therefore, include not only the natural person but also juridical person in whatever form designated and whether incorporated or not. By implication, the State stands excluded from the purview of the word ‘person’ for the purpose of limiting its right to avail the revisional power of the High Court under Section 397(1) of the Code for the reason that the State, being the prosecutor of the offender, is enjoined to conduct prosecution on behalf of the society and to take such remedial steps as to deems proper. The object behind criminal law is to maintain law, public, order, stability as also peace and progress in the society. Generally, private complaints under Section 202 of the Code are laid in respect of non-cognizance offences or when it is found that police has failed to perform its duty under Chapter XII of the Code or to report as mistake of fact. In view of the principle laid down in the maxim Ex debito justitiae, in accordance with the requirements of justice, the prohibition under Section 397(3) on revisional power given to the High Court would not apply when the State seeks revision under Section 401. So the State is not prohibited to avail the revisional power of the High Court under Section 397(1) read with Section 401 of the Code.
10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person – accused/complainant – cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section 397(3) Section 397(2) of the Code. It is seen that the High Court has suo mitupower under Section 401 and continuous supervisory jurisdiction under Section 483 of the Code. So, when the High Court on examination of the record finds that there is grave miscarriage of justice or abuse of process of the Courts or the required statutory procedure has not been complied with or there is failure of justice or order passed or sentence imposed by the Magistrate requires correction, it is but the duty of the High Court to have it corrected at the inception lest grave miscarriage of justice would ensue. It is, therefore, to meet the ends of justice or to prevent abuse of the process that the High Court is preserved with inherent power and would be justified, under such circumstances, to exercise the inherent power and in an appropriate case even revisional power under Section 397(1) read with Section 401 of the Code. As stated earlier, it may be exercised sparingly so as to avoid needless multiplicity of procedure, unnecessary delay in trial and protraction of proceedings. The object of criminal trial is to render public justice, to punish the criminal and to see that the trial is concluded expeditiously before the memory of the witness fades out. The recent trend is to delay the trial and threaten the witness or to win over the witness by promise or inducement. There malpractices need to be curbed and public justice can be ensured only when expeditious trial is conducted.
14. In view of the aforesaid law laid down by the Apex Court the present writ petition on behalf of the petitioner is also no maintainable on the ground of alternative remedy.
15. Coming to the submissions raised by Sri Satish Trivedi, learned senior Counsel on the merits of the case I only need to say this much that those contentions relates with the disputed questions of facts, which cannot be adjudged in this writ petition. Further trial according to the case of the petitioner himself is already proceeding and three witnesses of act have already been examined. In such a view it will not be proper for this Court to install the trial and re-examined the contentions of the petitioner whether the charge can be framed or not. The stage is 00 belated in the trial procedure for this Court to exercise its inherent power under Section 482 Cr.P.C. as the justice now requires that the trial must be brought to its logical end through procedure established by law.
16. In view of what we have stated above, I do not find any merit in this writ petit on, which stands dismissed.
17. Let a copy of this order be sent to the trial court for its intimation.