Code of Criminal Procedure, 1973 – ss.482 and 397 – Special Judicial Magistrate while exercising the power given under section 239 Cr.P.C. discharged the appellants – CBI approached the High Court under section 482 Cr.P.C. – High Court set aside the discharge order and directed the learned Special Judicial Magistrate to proceed with the case – Appellants preferred appeal against the said impugned order – Order of the High court is set aside. Held: When the specific remedy of revision under section 397 Cr.P.C. is available, it could not have been ignored – A petition under section 482 Cr.P.C. cannot be filed as an alternative of revision. [Para. 25]
Penal Code, 1860 – Criminal Conspiracy – Two or more person agrees to, cause to be done i) an Illegal act ii) an act which is not illegal by illegal means – No agreement except an agreement to commit an offence shall amount to Criminal conspiracy – Cheating – An act to cheat and thereby dishonestly induce the person so deceived to deliver any property and fraudulent or dishonest intention at the time of making the representation or promise.
Held: The sine qua non to make out an offence under section
420 IPC is an act on part act to cheat and thereby dishonestly induce the person so deceived to deliver any property and fraudulent or dishonest intention at the time of making the representation or promise and such culpable intention should be there at the time of entering into the agreement – Ingredients required to constitute an offence of cheating are (i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii) (a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii) (b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. [Paras 9, 10, 19, 20 and 26]
Inherent power of the court – Can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance.
Held: As per the Article 131 in the Schedule to the Limitation Act, 1963, the limitation period for filing a criminal revision under Section 397 Cr.P.C. is 90 days – However, there is no limitation prescribed for invocation of the inherent powers of the High Court under Section 482 Cr.P.C – It is well settled that the inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged – When a revision is lawfully instituted before the High Court but the same is thereafter found to be not maintainable on some other ground, it would be open to the High Court to treat the same as a petition filed under Section 482 Cr.P.C in order to do justice in that case – However, the reverse analogy may not apply in all cases and it would not be open to the High Court to blindly convert or treat a petition filed under Section 482 Cr.P.C as one filed under Section 397 Cr.P.C., without reference to other issues, including limitation. [Paras 23 and 25]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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