PUNJAB STATE WAREHOUSING CORPORATION FARIDKOTversusM/S SH. DURGA JI TRADERS & ORS.

              [2011) 13 (ADDL.) S.C.R. 387

    PUNJAB STATE WAREHOUSING CORPORATION                       A
                   FARIDKOT
                             v.
          M/S SH. DURGA JI TRADERS & ORS.
           (Criminal Appeal No. 2226 of 2011)

                   NOVEMBER 28, 2011                            B

          [D. K. JAIN AND ANIL R. DAVE, JJ.]

    CODE OF CRIMINAL PROCEDURE, 1973:
                                                                c
      s.482 -Petition seeking to quash the order of Chief
Judicial Magistrate dismissing the criminal complaint for
default - Dismissed on the ground of alternative remedy -
Held: Availability of an alternative remedy of filing an appeal
is not an absolute bar in entertaining a petition uls 482 - One D
of the circumstances envisaged in the section for exercise of
jurisdiction by High Court is to secure the ends of justice -
 Trial court had dismissed the complaint on a technical ground
and, therefore, interest of justice required the High Court to
exercise its jurisdiction to set aside such an order so that the E
trial court could proceed with the trial on merits - Rejection
of petition uls 482 rather resulted in miscarriage of justice -
Orders of High Court and the Magistrate are set aside and
the complaint is restored to the file of the Chief Judicial
Magistrate - Administration of criminal justice.
                                                                F
       Personal appearance of complainant - Exemption
granted - Complaint dismissed by trial court for default -
Held: Trial court erred in holding that since the complainant
had been appearing in person despite the order exempting
him from personal appearance the said exemption order G
become redundant and the complainant should have sought
a fresh exemption from personal appearance - Order of
exemption from personal appearance continues to be in force
till it is revoked or recalled- Practice and Procedure.
                               387                            H
    388 SUPREME COURT REPORTS [2011] 13 (ADDL.) S.C.R.


A       SUMMONS/PROCESS - Service of summons - Held:
    Since the respondents refused to accept the summons, they
    would be deemed to have been served -- Practice and
    procedure.

       Jeffrey J. Diermeier & Anr. Vs. State of West Bengal &
B Anr. 2010 (7) SCR 128 = (2010) 6 SCC 243; and Dinesh Dutt
  Joshi v. State of Rajasthan 2001 (3) Suppl. SCR 465 =
  (2001) 8 sec 570 - relied on

       Aseem Shabanli Merchant Vs. Brij Mehra & Anr. (2005)
C 11 SCC 412; Mohd. Azeem Vs. A. Venkatesh & Anr. (2002)
  7 SCC 726; and Dhariwal Tobacco Products Ltd & Ors.. Vs.
  State of Maharashtra & Anr. 2008 (17) SCR 844 =(2009) 2
  sec 370 - cited.
                        Case Law Reference:
D
     (2005) 11 sec 412           cited                   para 6
     (2002) 1 sec 726            cited                   para 6
     2008 (17) SCR 844           cited                   para 6
E
     2010 (7) SCR 128            relied on               para 8
     2001 (3) Suppl. SCR 465 relied on                   para 8

      CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
F No. 2226 of 2011.

        From the Judgment & Order dated 18.02.2008 of the High
    Court of Punjab & Haryana at Chandigarh in Crl. Misc. No.
    27097-M of 2006.
G         Dr. Ashok Dhamija, A.P. Dhamija, Sarad Kumar Slnghania
    for the Appellant.
        The following order of the Court was delivered

H
 PUNJAB STATE WAREHOUSING CORPORATION                      389
   FARIDKOT v. DURGA JI TRADERS & ORS.

                            ORDER                                  A

    1. _Leave granted.

     2. This appeal, by special leave, arises from judgment
dated 18th February, 2008 rendered by a learned Single Judge       8
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        C
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 Magistrate, Muktsar; and 9th
November 2005 by which the application for restoration of the      D
said complaint was dismissed.

    3. Succinctly put, the material facts giving rise to the
present appeal are as follows:
                                                                   E
    The appellant, a statutory body, constituted under the
Warehousing Corporation Act, 1962, file·d 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,      F
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."      G

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
                                                                   H
    390     SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.


A   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
B
          absence of the complainant, complaint stands dismissed
          in default. Be consigned to Record Room.

          Pronounced.                                   Sd/-
                                           Chief Judicial Magistrate
c                                                           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
0         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.

E                                                              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
F
          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
G         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
H         the Apex Court judgments and I have gone through the
     PUNJAB STATE WAREHOUSING CORPORATION                    391
       FARIDKOT v. DURGA JI TRADERS &·ORS.

      same and find a force in the contention of the learned         A
      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."                                 B

     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, the High Court has c
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. D

     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.         E

     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     F
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          G
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 from personal appearance, .and the case ought to
1.    (2005) 11 sec 412                                              H
    392     SUPREME COURT REPORTS (2011] 13 (ADDL.) S.C.R.


A 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
B 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
C 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
D 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
E 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 of
  this Court in Jeffrey J. Dierrneier & Anr. Vs. State of West
  Bengal & Anr. 4, wherein one of us (D.K.Jain, J.), speaking for
F 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
G         give effect to an order under the Code; (ii) to prevent abuse
          of the process of Court; and (iii) to otherwise secure the

    2.   (2002) 11 sec 412.
    3.   (2009) 2 SCC370.
H 4. c201 OJ e sec 243.
  PUNJAB STATE WAREHOUSING CORPORATION                     393
    FARIDKOT v. DURGA JI TRADERS & ORS.
    ends of justice. Nevertheless, it is neither possible nor A
    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 fo be exercised sparingly, carefully and cautiously, ex B
    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 C
    produce injustice.



    22. In Dinesh Dutt Joshi v. State of Rajasthan [(2001) 8
    SCC 570], while dealing with the inherent powers of the D
    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, E
            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 F
          . the purposes specified in 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 G
            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 H
    394    SUPREME COURT REPORTS [2011) 13 (ADDL.) S.C.R.


A 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
8 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
C the complainant shou!d 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.
0
  Availability of an alternative remedy of filing an appeal is not
  an absolute bar in 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
E 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.

F      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
G Magistrate shall now proceed with the trial after securing the
  presence of the accused.

    R.P.                                           Appeal allowed.


H