IN THE RAJASTHAN HIGH COURT - JAIPUR BENCH 

Alok Sharma for the petitioners. 

Padam Kumar Khetan for the respondent. 

JUDGMENT 

SHIV KUMAR SHARMA J. - 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 as revision 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"). The learned special judge vide his order dated August 23, 1997, dismissed 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 section 63 and section 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, 1993, 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). 

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; A/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. 

I have reflected over the rival submissions and carefully scanned the record. 

The Division Bench of this court in Neeraj Kumar v. State of Rajasthan [1996] 2 WLC 215 (Raj), indicated thus : 

"Though section 397(3) does not limit or affect the inherent powers of the High Court but to say that the bar of section 397(3) is not applicable in any case, will amount to setting at naught the limitation imposed by sub-section (3) of section 397 of the Criminal Procedure Code. Looking to the object, with which section 397(3) 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 to do something which is expressly barred under the Code. Merely by changing the nomenclature of the petition and mentioning it as a petition under section 482 of the Criminal Procedure Code instead of a revision under section 397, the nature of the petition will not change where the relief prayed is for quashing of the order and it remains pure and simple a revision against the order passed by the lower court. Though there are neither any fetters nor limitation on the inherent powers of the High Court nor is there an absence of jurisdiction but the inherent powers cannot be used to invade the area set apart for the exercise of the specific power by the courts." 

Their Lordships of the Supreme Court in Municipal Corporation of Delhi v. Ram Kishan Rohtagi, AIR 1983 SC 67, propounded thus (headnote) : 

"It is well settled that the inherent powers under section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one it has to be exercised sparingly." 

In Krishnan v. Krishnaveni, AIR 1997 SC 987, their Lordships of the Supreme Court observed thus (headnote) : 

"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) or section 397(2) of the Code. However, when the High Court on examination of the record finds that there is a grave miscarriage of justice or abuse of process of the courts or the required statutory procedure has not been complied with or there is a 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. 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." 

Pepsi Foods Ltd. v. Special Judicial Magistrate [1997] 8 JT 705 (SC) was a case where the apex court held thus (page 719) : 

"It is no comfortable thought for the appellants to be told that they could appear before the court which is at a far off place in Ghazipur in the State of Uttar Pradesh to seek their release on bail and then to either move an application under section 245(2) of the Code or to face trial when the complaint and the preliminary evidence recorded makes out no case against them. It is certainly one of those cases where there is an abuse of the process of the law and the courts and the High Court should not have shied away in exercising its jurisdiction. 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. In our view the High Court should not have adopted such a rigid approach which certainly has led to miscarriage of justice in the case. Power of judicial review is discretionary but this was a case where the High Court should have exercised it." 

Indisputably the petitioners have availed of the remedy provided by section 397 of the Criminal Procedure Code in calling in question the order dated July 15, 1995, of the learned trial court. The learned special judge dismissed the revision and confirmed the order of the trial court. Now the order of the trial court along with the order of the special judge have been assailed by the petitioners invoking the powers under section 482 of the Criminal Procedure Code of this court. I have carefully gone through the impugned orders. The learned courts below have categorically dealt with the arguments advanced on behalf of the petitioners. On examination of record I do not find that there is a grave miscarriage of justice or abuse of process of the court or the required statutory procedure has not been complied with or impugned order passed by the courts below require correction. Undoubtedly the powers under section 482 of the Criminal Procedure Code are unrestricted and this court can pass orders necessary in order to prevent the abuse of the process of the court and in the interest of justice. The provisions of section 397(3) of the Criminal Procedure Code do not limit the said powers but in my considered view the said provisions contained in section 482 of the Criminal Procedure Code are not attracted in the instant case. The learned trial court dismissed the application under section 204 of the Criminal Procedure Code of the petitioners by a detailed order discussing all the arguments advanced on behalf of the petitioners. The learned revisional court also discussed the arguments of the petitioners in detail. The argument in respect of jurisdiction of the court has been turned down after placing reliance on Ranbaxy Laboratories Ltd. v. Smt. Indra Kala [1997] 88 Comp Cas 348 (Raj) wherein it was held that (headnote) "once the petitioner-company and the law applicable to its functioning permitted transactions of purchase and sale of its shares throughout the breadth and length of the country for its gain, the interest of the member of the public transacting such business could not be allowed to be defeated on the plea that relief to the aggrieved persons can be granted only at the place where the office of the company was located. Such an approach would frustrate the very purpose of the relevant provisions in the Act and in the other allied Acts. The objection that the Magistrate had no jurisdiction was not sustainable."

Regarding the second objection raised on behalf of the petitioners, the learned revisional court observed that prima facie offences under section 63 and section 116 of the Companies Act are made out against the petitioners as conditions of the prospectus of the company were falsified and debentures were not converted into shares according to the conditions of the prospectus. Whether the money was returned or not is a question which is the subject-matter of inquiry. The third objection raised by the petitioners before the revisional court was about the maintainability of the complaint at the behest of the complainant who was not a shareholder. The learned revisional court turned down the argument after placing reliance on F. C. Wadhwa v. S. C. Bhatia [1995] Suppl. 4 SCC 244, wherein their Lordships of the Supreme Court provided thus (para. 3) : 

"The other ground on which the High Court relies, is that the complainant is not one of the persons named in section 621 of the Act, entitled to file the complaint. The contention of the appellant is that he, being the person aggrieved in the present case, has the locus standi to make such a complaint and moreover a comparison of section 621 of and section 621A indicates that section 621 is not applicable to a complaint of this kind in which the allegation is of the commission of an offence under section 73 of the Act. In our opinion, on the material present at the stage before the commencement of the trial, there was no basis for the High Court to take the view that the complaint must be quashed without going to trial for the offence." 

The case set up by the complainant is that on the basis of the prospectus dated October 14, 1992, issued by Reliance Polypropylene Limited, the complainant as also his wife applied for allotment of secured optionally fully convertible debentures of Rs. 50 each. The said debentures were to bear interest at the rate of sixteen per cent. per annum until converted into shares at the option of the applicants. On a separate application being made by the complainant and his wife, 100 secured optionally fully convertible debenture were allotted to them. Allotment money and money due on first and second calls were also paid which was duly received by the company. The prospectus of the company provided that each of the optionally convertible debentures would on the expiry of 12 months from the date of allotment be converted into shares of Rs. 10 each at a premium of Rs. 40 per share. In the event of the debenture holders desiring not to have the debentures converted into shares the allottees were to inform the company nine months subsequent to the date of allotment in writing by registered post. The company did not abide by the conditions of the prospectus and redeemed the debentures and refunded the amount along with the interest. The said act of the company was illegal and contrary to various provisions of the Companies Act, 1956, more particularly section 63, section 113 and section 116 of the Companies Act. It was also an act entailing A criminal liability under various sections of the Indian Penal Code. 

A detailed affidavit of Shri Sunil, constituted attorney of Reliance Industries Limited, has been placed on record by the petitioners an attempt has been made to justify that the complaint deserves to be quashed without going to trial for the alleged offences but I am unable to persuade myself to agree with the contentions canvassed by learned counsel for the petitioners. In my considered opinion, on the material present at the stage before the commencement of the trial there is no reasonable basis to take the view that the complaint should be quashed without going to trial for the alleged offences. 

Resultantly the miscellaneous petition stands dismissed. However, in the facts and circumstances of the case, the learned trial court is expected not to insist upon the personal appearance of the petitioners and if any application seeking exemption of the petitioners from the personal appearance, is filed, the same shall be allowed and the petitioners shall be permitted to appear through their counsel. Record of the case be sent back forthwith. Parties are directed to appear before the trial court through counsel on July 8, 1998, for seeking further instructions. The learned trial court is also expected to adjudicate upon the case expeditiously preferably within three months from the date of receipt of this order.