JUDGMENT
J.G. Chitre, J.
1. Section 403 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code for convenience) provides that save as otherwise expressly provided by this Code, no party has any right to he heard either personally or by pleader before any Court exercising its powers of revision; but the court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader.
2. On 27.6.2003 when this mater came up for hearing Shri Patil appearing for Shri Kadam prayed for adjournment by submitting that Shri S.P. Kadam, counsel appearing for respondent no. 2 was unable to attend the Court on account of the sad demise of the father of Senior of Shri K.P. Kadam, Shri Siddiqui appearing for the petitioner did not take any objection for the adjournment sought keeping in view the emotional aspect behind the prayer. This Court also adjourned the hearing keeping in view the emotional aspect behind the prayer so made. Shri Patil remained away when this petition was to be heard on 4.7.2003 peremptorily. Shri Patil submitted today that Shri Kadam is before some other Court and again sought the adjournment. After perusing the challenge put to the order passed by the trial Court and the prayer made for correcting the error committed by the revisional court (Additional Sessions Judge, Greater Mumbai), this Court does not find any necessity of hearing respondent no. 2 or adjourning the hearing for allowing Mr. Kadam to make the submissions. Already sufficient opportunity was granted but even then none is present for making the submissions on behalf of respondent no. 2.
3. The Petitioner makes a prayer to this Court for issuing the writ of certiorari for correcting the error in the proceeding proceeded by Additional Chief Metropolitan Magistrate, 40th Court, Girgaon, Mumbai in permitting the respondent no. 2 to amend the criminal complaint filed by her against the present petitioner by inserting his name in place of Shri B.S. Dastoor and that too after about four years. Shri Siddiqui submitted that the said complaint was revolving around the provisions of Section 138 of Negotiable Instruments Act, 1888 (hereinafter referred to as the negotiable Instruments Act for convenience). Shri Siddiqui pointed out that in the said complaint of which the learned Additional Chief Metropolitan Magistrate has taken the cognizance was of the allegation that one B.S. Dastoor had issued a cheque for Rs. 22,58,077/- in the name of the company R.E.P.L. Engineering Ltd. He submitted that a non-bailable warrant was issued against the present petitioner Behram S. Doctor and by seeing such non-bailable warrant he was surprised and, therefore, he filed a revision petition in the Court of Sessions for Greater Mumbai which was numbered as Revision Application No. 225 of 2002.
4. Shri Siddiqui submitted that when the said revision application was argued, the learned Additional Sessions Judge cancelled the said non- bailable warrant. However, the said complaint is still pending in the said Court.
5. He submitted that the said non-bailable warrant came to be issued against the present petitioner because in the meanwhile the original complainant-respondent no. 2 had amended her complaint and inserted the name of Behram Doctor instead of Shri B.S. Dastoor. He submitted that the said name has been inserted by amending the complaint and that Loo after about four years. Shri Siddiqui submitted that when the said complaint was filed, the period of limitation for filing the complaint after issuing the notice was at the most 30 days even taking a liberal view in favour of the complainant. He submitted that permitting a complainant to change the name of the accused is by itself not permissible by law and it cannot be done after about four years gap.
6. Shri Sringarpure, Additional Public Prosecutor appearing for the State of Maharashtra, submitted that the amendment cannot be permitted to be done in criminal complaint by a criminal court and the name of the accused cannot be permitted to be changed after about four years, he submitted that such a complaint deserves to be dismissed.
7. Section 468 provides :-
(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation.
(2) the period of limitation shall be –
(a) six months, in the offence is punishable with fine only:
(b) one year, if the offence is punishable with imprisonment for a term not excepting one year:
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years;
(3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.
8. Section 138 of the Negotiable Instrument Act provides for a sentence which may extend to one year or fine which may extend to twice the amount of cheque or with both. The said section 138 was amended on 17.12.2002 and sentence extending to two years was provided.
9. On 28.1.2002, as submitted by Shri Siddiqui, the name of Shri B.S. Dastoor was changed and the name of the present petitioner was incorporated. The original complaint was filed on 1.4.1998. That means obviously the said amendment has been introduced after three years.
10. At this stage, respondent no. 2 personally appeared before the Court and submitted that her lawyer is absent and she be given the opportunity of making the submissions herself. This Court permitted her to make the submissions. She submitted that the present petitioner has committed the mistake in accepting the summons of the trial Court and making the submissions before it. When a query was made to Mr. Siddiqui about this, Mr. Siddiqui submitted that initially the summons was issued to petitioner which he accepted and in pursuance of that he appeared before the Court and brought it to the notice of the Court that he was not the person who has been mentioned in the complaint initially. He submitted that he was not Dastoor but he was Mr. Doctor, Shri Siddiqui submitted that by bringing this aspect to the notice of the Court he did not attend the said Court thereafter and afterwards when a non- bailable warrant was issued against him, he has to file a revision for challenging the said non- bailable warrant.
11. Respondent No. 2 submitted further that the petitioner has taken the belated action of challenging the said prosecution which has been replied to by Shri Siddiqui by submitting that he was under the impression initially that as it was brought to the notice of the Court that he was not Mr. Dastoor but was Mr. Doctor, it was not necessary for him to appear in the Court. But when the non-bailable warrant was issued against him, he had to rush to the Sessions Court for quashing the said complaint.
12. Even taking in consideration this aspect of the submission which has been advanced by respondent no. 1 at belated stage during the course of dictation of the judgment, the situation does not change at all.
13. Firstly, there is no provision in Criminal Procedure Code by which a complainant can make a prayer to the Magistrate for permitting him to amend the complaint by changing the name of the accused and substituting one accused by another and alleging that the substituted accused had committed the alleged offence. Criminal Courts are bound by law and they are not Courts or equity. The law has provided some discretion to them and that is in respect of inflicting punishment even that discretion is also regulated by law. Therefore, the trial Court had no jurisdiction at all and it was not empowered to permit the respondent no. 2 to amend the said complaint by deleting the name of Mr. Dastoor and substituting it by putting the name of the present petitioner Mr. Doctor. The trial Court did not have the jurisdiction to issue the non-bailable warrant against the present petitioner Mr. Doctor, on account of the said amendment effected in the said complaint and that too obviously after three and half years. In fact, the learned Additional Sessions Jude, who heard and decided the said revision, should have pointed out these glaring mistakes to the notice of the learned Magistrate who was having the control over the said criminal prosecution. But instead of that, he remanded the records and proceedings back to the said court by cancelling the non-bailable warrant issued against the present petitioner Mr. Doctor.
14. when a revisional Court is exercising the power of revision, it is it s important duty to correct all the mistakes in the proceedings or in the action taken by the subordinate courts or courts which have been brought to its notice or come to its notice suo motu. It has got revisional jurisdiction to call for the records of such subordinate court in view of section 397 of Code for the purpose of examining it and correcting the mistakes even suo motu. When a revision petition was filed, it was heard by the said Additional Sessions Judge and It was decided by him, he should have given serious attention to all these things and should have inquired as to how such non-bailable warrant came to be issued against the present petitioner. He should have dealt with the said aspect by elaborate order. Had that been done by him, there would not have been any occasion for the petitioner to file this petition. Now, all these things have been brought to the notice of this Court and, therefore, this Court is dealing with each and every relevant aspect of the said prosecution. When justice is to be done, it is to be done to full extent and 100 per cent. slip shod orders, cryptic orders should not be passed by the revisional courts while exercising the power conferred by section 397 of the Code. When such mistakes are left or not properly attended to, it becomes the duty of this Court to correct them while exercising the jurisdiction of superintendence over subordinate Courts. Such mistakes are to be corrected by this Court by exercising its inherent powers also.
15. This criminal writ petition is allowed. The said prosecution against the present petitioner Beharam S. Doctor stands quashed. The said prosecution should continue against remaining accused.
16. Parties to act on ordinary copy of the order duly authenticated by the Private Secretary of this Court.