REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.        2226                        OF 2011 (Arising out of S.L.P. (Criminal) No. 5305 of 2008)

PUNJAB STATE WAREHOUSING  CORPORATION FARIDKOT

— APPELLANT

VERSUS

M/S SH. DURGA JI TRADERS & ORS. — RESPONDENT

S

O R D E R

1. Leave granted.

2. This  appeal,  by  special  leave,  arises  from  judgment  dated  18th  

February, 2008 rendered by a learned Single Judge of the High Court  

of Judicature for the States of Punjab and Haryana at Chandigarh. By  

the impugned judgment, the learned Single Judge has dismissed the  

petition preferred by the appellant under Section 482 of the Code of  

Criminal Procedure, 1973 (for short “the Code”), seeking quashing of  

orders dated 18th February 2003, by which the Criminal  Complaint  

filed  against  the  respondents  in  this  appeal,  for  having  committed  

offences under Sections 406 and 409 of the Indian Penal Code, 1860  

(for short “IPC”)  had been dismissed in default by the Chief Judicial  

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Magistrate, Muktsar; and 9th November 2005 by which the application  

for restoration of the said complaint was dismissed.

3. Succinctly put, the material facts giving rise to the present appeal are  

as follows:

The appellant, a statutory body, constituted under the Warehousing  

Corporation Act, 1962, filed a private criminal complaint under Sections  

406 and 409 of the IPC against the respondents, alleging shortage of huge  

quantity  of  rice  in  respect  of  paddy  entrusted  to  them  as  miller.  

Simultaneously, an application for exemption from personal appearance  

of the complainant therein, was also filed, whereon the following order  

was passed by the Trial Court on 16th April 1999.

“In  view  of  the  application  made  by  the  complainant  presence of complainant is exempted till further orders.”

The trial proceeded in the normal course for six years.  However, on 18th  

February 2003 the Chief Judicial Magistrate dismissed the case for non  

appearance of the complainant even though the pleader for the appellant  

was present in court.  The order reads thus:

“None is present on behalf of the complainant nor any  request has been received on behalf of the complainant.  Both  the  accused  are  present  on  bail.  In  view  of  the  absence of the complainant, complaint stands dismissed  in default. Be consigned to Record Room.

Pronounced. Sd/-  Chief Judicial Magistrate

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Muktsar

At  this  stage  an  application  for  restoration  of  the  complaint  has  been  filed  on  the  ground  that  personal  appearance  of  the  complainant  was  already  exempted  vide order dated 16.4.99. Copy supplied to the counsel  for  accused.  However,  let  the  notice  to  the  accused  regarding the application be given present in the court for  24.3.03. File be also produced on the date fixed.

Sd/- CJM 18.2.03”

The application for restoration of the complaint was ultimately dismissed  

on 9th November 2005, by the following order:

“After considering the arguments of the parties at length,  I am considered of the view that complaint was dismissed  in default. Complainant was already exempted from the  personal  appearance  on  16.4.99  and  thereafter  he  appeared in the court in person. The orders have become  redundant  and  the  complainant  had  to  seek  afresh  exemption  from  appearance.  From  the  perusal  of  the  record, it appears that complainant has never moved any  fresh application for exemption nor the same was ever  allowed and as such the order of dismissal dated 19.2.03  has become final and counsel for the accused has referred  the Apex Court judgments and I have gone through the  same and find a force in the contention of  the learned  counsel for accused. There is no provision in Criminal  Procedure  Code  to  review  the  order  and  recall  the  summons. Hence, application moved by the applicant is  hereby declined and accused are also discharged. File be  consigned to the record room.”

4.  Aggrieved thereby the appellant moved the High Court with a petition  

under Section 482 of the Code for setting aside of the said orders and  

restoration of the complaint.  As aforesaid, by the impugned judgment,  

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the High Court has dismissed the petition, holding that the dismissal in  

default of a private complaint amounts to acquittal of the accused, and  

since against such an order a specific statutory remedy exists in the  

Code, a petition under Section 482 of the Code cannot be entertained.  

Hence the present appeal by the complainant.  

5. As  per  the  office  report,  the  respondents  had  refused  to  accept  

summons when the same were tendered to them by the process server.  

Consequently, vide order dated 18th September, 2009 the respondents  

were deemed to have been served. We have heard the learned counsel  

for the appellant.

6. Learned counsel appearing for the appellant has assailed the impugned  

judgment mainly on the ground that the discretion vested in the High  

Court under Section 482 of the Code being very wide, in the instant  

case  the  High  Court  grossly  erred  in  declining  to  exercise  its  

jurisdiction on the ground that an alternative remedy was available to  

the appellant against an order of acquittal of the accused.  Relying on  

the  decision  of  this  Court  in  Aseem Shabanli  Merchant  Vs. Brij   

Mehra & Anr.1, learned counsel has urged that having regard to the  

serious nature of the charges against the respondents, the complaint  

should  not  have  been  dismissed  in  default  on  account  of  non  

appearance  of  the  complainant,  who had  been  otherwise  exempted  

1 (2005) 11 SCC 412

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from personal appearance, and the case ought to have been tried on  

merits.  In support of his contention that dismissal  of the complaint  

because  of  a  singular  default  in  appearance  on  the  part  of  the  

complainant, was improper, learned counsel relied upon the decision  

of this Court in Mohd. Azeem Vs.  A. Venkatesh & Anr.2.  It is also  

argued that having regard to the nature of the case, the High Court  

committed a patent error in dismissing the petition under Section 482  

of the Code on the ground of availability of an alternative remedy.  In  

support of the proposition that availability of an alternative remedy  

per se is no ground for dismissal of an application under Section 482  

of  the  Code,  learned  counsel  commends  us  to  the  decision  of  this  

Court  in  Dhariwal  Tobacco  Products  Ltd  &  Ors..  Vs. State  of   

Maharashtra & Anr.3.

7. The short question that falls for consideration is whether in the fact-

situation  the  High  Court  was  justified  in  declining  to  exercise  its  

jurisdiction under Section 482 of the Code?

8. It is trite law that the inherent power of the High Court ought to be  

exercised to prevent miscarriage of justice or to prevent the abuse of  

the process of the Court or to otherwise secure the ends of justice. The  

Court possesses wide discretionary powers under the Section to secure  

these ends.  In this behalf it would be profitable to refer to the decision  2 (2002) 7 SCC 726 3 (2009) 2 SCC 370

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of this Court in Jeffrey J. Diermeier & Anr. Vs. State of West Bengal   

& Anr.4, wherein  one of  us (D.K.Jain,  J.),  speaking for the bench,  

explained the scope and ambit of inherent powers of the High Court  

under Section 482 of the Code as follows:  

“20…………..…………………………………………...  The Section itself  envisages  three  circumstances  under  which the inherent jurisdiction may be exercised, namely,  (i)  to  give  effect  to  an  order  under  the  Code;  (ii)  to  prevent  abuse  of  the  process  of  Court;  and  (iii)  to  otherwise secure the ends of justice. Nevertheless, it  is  neither possible nor desirable to lay down any inflexible  rule  which  would  govern  the  exercise  of  inherent  jurisdiction  of  the  Court.  Undoubtedly,  the  power  possessed by the High Court under the said provision is  very wide but it is not unlimited. It has to be exercised  sparingly, carefully and cautiously, ex debito justitiae to  do real and substantial justice for which alone the court  exists.  It  needs  little  emphasis  that  the  inherent  jurisdiction  does  not  confer  an  arbitrary  power  on  the  High  Court  to  act  according  to  whim or  caprice.  The  power  exists  to  prevent  abuse  of  authority  and  not  to  produce injustice.

……………………………………………………………

22. In Dinesh Dutt Joshi  v.  State of Rajasthan [(2001)  8 SCC 570], while dealing with the inherent powers of  the  High Court,  this  Court  has  observed thus  (SCC p.  573, para 6):

“6. ...The principle embodied in the section  is  based  upon  the  maxim: quando  lex  aliquid alicui concedit, concedere videtur et   id  sine  quo  res  ipsae  esse  non  potest i.e.  when the law gives anything to anyone,  it  gives also all those things without which the  thing  itself  would  be  unavailable.  The  section does not confer any new power, but  only declares that the High Court possesses  inherent powers for the purposes specified in  

4 (2010) 6 SCC 243

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the section. As lacunae are sometimes found  in  procedural  law,  the  section  has  been  embodied  to  cover  such  lacunae  wherever  they  are  discovered.  The  use  of  extraordinary  powers  conferred  upon  the  High Court under this section are however  required to be reserved, as far as possible,  for extraordinary cases.”

9. Bearing in mind the afore-stated legal position in regard to the scope  

and width of the power of the High Court under Section 482 of the  

Code,  we are  of  the  opinion  that  the  impugned decision  is  clearly  

indefensible. As noted above, the High Court has rejected the petition  

under Section 482 of the Code on the ground of  availability  of  an  

alternative remedy without considering the seriousness of the nature of  

the  offences  and  the  fact  that  the  Trial  Court  had  dismissed  the  

complaint on a hyper technical ground viz. since the complainant had  

been  appearing  in  person,  despite  order  dated  16th April  1999,  

exempting him from personal appearance, the said exemption order  

became redundant  and the  complainant  should  have sought  a  fresh  

exemption from personal appearance.  We feel that such a view defies  

any logic.  An order of exemption from personal appearance continues  

to be in force till it is revoked or recalled. We are convinced that in the  

instant case, rejection of appellant’s petition under Section 482 of the  

Code  has  resulted  in  miscarriage  of  justice.   Availability  of  an  

alternative  remedy  of  filing  an  appeal  is  not  an  absolute  bar  in  

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entertaining a petition under Section 482 of the Code.  As aforesaid,  

one of the circumstances envisaged in the said Section, for exercise of  

jurisdiction  by  the  High  Court  is  to  secure  the  ends  of  justice.  

Undoubtedly,  the  Trial  Court  had  dismissed  the  complaint  on  a  

technical ground and therefore, interests of justice required the High  

Court to exercise its jurisdiction to set aside such an order so that the  

Trial Court could proceed with the trial on merits.

 10.Resultantly, the appeal is allowed. The impugned judgment as also the  

orders of the Chief Judicial Magistrate dated 18th February 2003 and  

9th November  2005  are  set  aside  and  the  complaint  filed  by  the  

appellant is restored to the file of the Chief Judicial Magistrate.  The  

Chief  Judicial  Magistrate  shall  now  proceed  with  the  trial  after  

securing the presence of the accused.

.........…..………………………………   (D.K. JAIN, J.)  

..……………………………..………… (ANIL R. DAVE, J.)

NEW DELHI; NOVEMBER 28, 2011.

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