# AMAR CHAND AGARWALLA v. SHANTI BOSE AND ANOTHER ETC

- **Citation:** [1973] 3 S.C.R. 179
- **Court:** Supreme Court of India
- **Decided:** 1972-12-22
- **Case number:** Criminal Appeal Nos. 101 to 103 of 1970
- **Bench:** A. Alagiriswami, D. Dua, A. Vaidialingam
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/amar-chand-agarwalla-v-shanti-bose-and-another-etc-5798
- **Pages:** 10

## Headnote

Code of Criminal Procedure (Act 5 of 1898), ss. 439 and 561APower of High Court to quash charges and proceeding!-Scope of.
As a result of a judicial enquiry in relation to a complaint by the
appellant against the four respondents, summons were issued to
tho
respondents, aind before the Magistrate, evidence, oral and documentary,
was adduce<! by the complainant (appellant) in the presence
of
the
accused (respondents). On a consideration of those
materials,
the
Magistrate framed charges against all the four accused under ss. 120
B/409 I.P.C. and under s. 409, against accused I to 3, ~ September
1968. Thereafter, the trial proceeded, ai large volume of
oral
and
documentary evidence was let in, and
all
that
remailwd
was
the
examination of two prosecution witnesses
and a
court-witness before
closing the trial. All the prosecution wit:nesses examined till then were
also cross-examined by the res~dents. At that stage, in March 1969,
the 4th accused moved the High Court for quashing the
proceedinp
and the other accused followed with similar petitions.
The High Court, in spite of the complainant representing that the
trial had almost come to a close quashed the charges and proceedings
on the grounds that, the complainant bad suppressed
material
facts,
that the two prosecution witnesses
should
not
be
aillowed to be
examined 'in the circumstances of the case', that the examination of
the court witness was not necessary as it would only
prejudice
the
accused and under the effect of cross-examin3tion, and that the evidence
en record ruled out any offence of breach of trust or a conspiracy to
commit it.
Allowing the appeal to this Court,
HELD : The High Court was in error
(a) It is not as if the accused had moved the High Court at the
earliest stage when summons was issued to
them.
Nor
had
they
approached the High Court when charges were framed against them.
If the case of the accused was that the allegations i:I> the
complaint
did not constitute the offences complained of or that the complainant
was to be quashed on any other g\"ound available in law, the accused
should have approached the High Court at least when too charges were
framed.
[186DEJ
(b) Assuming there was a suppression of material
facts by
the
complainant that was a matter to be considered by the trial
Court.
Similarly, whether the evidence on record established that an offence
of breach of trust or a conspiracy to commit it, had been committed, la
again a matter for the trial court to come to a conclusion after an
appraisal of the entire evidence let in by the prosecution
and
the
defence. The High Court was not justified, at that stage, to have em·
barked upon an appreciation of the evidence. [187 AC]
( c) The nccused never challenged the order of the trial court regard·
ing the examination of prosecution witnesses or the court·witness, and
180
SUPREME COURT REPORTS
(1973] 3 S.C.R.
the High Court was not justified in holding that they should not be
examined, -and hence, the order regarding their
examination
should
stlljll(f.
Jamatraj Kewalji Govani v. The Stat• of Maharashtra, [1963] 3
S.C.R. 415, referred to.
A
(d) If the High Court had P"ssed the order quashing the charges
and proceedings in exercise of its inherent jurisdiction under s. 561A,
B
Cr. P. C. then the exercise of the power by the High Court was not
justified, because, the Jfresent case does no[ come within the ambit of
the principles laid dowi:,. by this Court, in R. K. Kapur v. The Stare
of Punjab, [1960] 3 S.C.R. 388. [188 A-C]
(e) Even assuming that the High Court \\'as .exercising jurisdiction
under s. 439, Cr. P .C., the present was not a case for interference by
the High Court. The jurisdiction of the High Court is to be exercised
C
no:rmally, under the section, only in exceptional. cases when there is a
glaring defect in the procedure or there is a manifest error on a point
of law and consequently a flagrant mis-carriage of justice. [1880]

## Text

A
B
c
D
E
F
G
H
119
AMAR CHAND AGARWALLA
v.
SHANTI BOSE AND ANOTHER ETC.
December 22, 1972
[A. ALAGIRISWAMI, I, D. DUA AND C, A. VAIDIALINGAM, JJ.]
Code of Criminal Procedure (Act 5 of 1898), ss. 439 and 561APower of High Court to quash charges and proceeding!-Scope of.
As a result of a judicial enquiry in relation to a complaint by the
appellant against the four respondents, summons were issued to
tho
respondents, aind before the Magistrate, evidence, oral and documentary,
was adduce<! by the complainant (appellant) in the presence
of
the
accused (respondents). On a consideration of those
materials,
the
Magistrate framed charges against all the four accused under ss. 120
B/409 I.P.C. and under s. 409, against accused I to 3, ~ September
1968. Thereafter, the trial proceeded, ai large volume of
oral
and
documentary evidence was let in, and
all
that
remailwd
was
the
examination of two prosecution witnesses
and a
court-witness before
closing the trial. All the prosecution wit:nesses examined till then were
also cross-examined by the res~dents. At that stage, in March 1969,
the 4th accused moved the High Court for quashing the
proceedinp
and the other accused followed with similar petitions.
The High Court, in spite of the complainant representing that the
trial had almost come to a close quashed the charges and proceedings
on the grounds that, the complainant bad suppressed
material
facts,
that the two prosecution witnesses
should
not
be
aillowed to be
examined 'in the circumstances of the case', that the examination of
the court witness was not necessary as it would only
prejudice
the
accused and under the effect of cross-examin3tion, and that the evidence
en record ruled out any offence of breach of trust or a conspiracy to
commit it.
Allowing the appeal to this Court,
HELD : The High Court was in error
(a) It is not as if the accused had moved the High Court at the
earliest stage when summons was issued to
them.
Nor
had
they
approached the High Court when charges were framed against them.
If the case of the accused was that the allegations i:I> the
complaint
did not constitute the offences complained of or that the complainant
was to be quashed on any other g\"ound available in law, the accused
should have approached the High Court at least when too charges were
framed.
[186DEJ
(b) Assuming there was a suppression of material
facts by
the
complainant that was a matter to be considered by the trial
Court.
Similarly, whether the evidence on record established that an offence
of breach of trust or a conspiracy to commit it, had been committed, la
again a matter for the trial court to come to a conclusion after an
appraisal of the entire evidence let in by the prosecution
and
the
defence. The High Court was not justified, at that stage, to have em·
barked upon an appreciation of the evidence. [187 AC]
( c) The nccused never challenged the order of the trial court regard·
ing the examination of prosecution witnesses or the court·witness, and
180
SUPREME COURT REPORTS
(1973] 3 S.C.R.
the High Court was not justified in holding that they should not be
examined, -and hence, the order regarding their
examination
should
stlljll(f.
Jamatraj Kewalji Govani v. The Stat• of Maharashtra, [1963] 3
S.C.R. 415, referred to.
A
(d) If the High Court had P"ssed the order quashing the charges
and proceedings in exercise of its inherent jurisdiction under s. 561A,
B
Cr. P. C. then the exercise of the power by the High Court was not
justified, because, the Jfresent case does no[ come within the ambit of
the principles laid dowi:,. by this Court, in R. K. Kapur v. The Stare
of Punjab, [1960] 3 S.C.R. 388. [188 A-C]
(e) Even assuming that the High Court \\'as .exercising jurisdiction
under s. 439, Cr. P .C., the present was not a case for interference by
the High Court. The jurisdiction of the High Court is to be exercised
C
no:rmally, under the section, only in exceptional. cases when there is a
glaring defect in the procedure or there is a manifest error on a point
of law and consequently a flagrant mis-carriage of justice. [1880]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos.
101 to 103 of 1970.
Appeals by special leave from the judgment and order dated
D
October 10, 1969 of the Calcutta High Court in Criminal Revision
Nos. 238, 289 and 290 of 1969.
D. Mukherjee and S. Ghosh for the appellants (in all the
appeals).
A. N. Mu/la, !. M. Khanna, Vishnu Bahadur Saharaya and
E
Yogindra Khushalani for the respond~nts, (in Cr. A. Nos. 101 &
103/70).
R. A. Gupta for respondent (in Cr. A. No. 102/7()).
S. C. Mazumdar for the State (in all the appeals).
The Judgment of the Court was delivered by
VAIDIALINGAM, J. These three appeals by the complainant, by
special leave, are against the common judgment and order dated
August 10, 1969, of the Calcutta High Court in Criminal Revisions Nos. 238, 289 and 290 of 1969, setting aside the charge
under section 120B read with section 409 I.P.C. framed against
all the (our accused and the charge under section 409 IPC framed
against accused Nos 1 to 3. The High Court by the same judg·
ment, quashed the proceedings based upon the said charges, which
were pending before the
Presidency
Magistrate, 7th
Court,
Calcutta in case No. C/34!13 of 1967.
The appellant in all these three appeals, Amar Chand AgarwaUa, filed a complaint before the Chief Presidency Magistrate,
Calcutta, on November 21, 1967, on the basis of which the four
F
G
ff
AMAR CHAND v. SHANTI BOSE (Vaidialingam, /.)
IS I
A
accused persons, namely, Paramanada Agarwalla, Madan Mohain
Gour, Jhumennal Agarwalla and Shanti Bose, were required to
answer charges uncier section 120B/ 409 and 409 IPC. These
persons will be refQrred to as accused Nos. 1, 2, 3 and 4 respectively. The case was later on transferred to the Presidency Magistrate, 7th Court, Calcutta, for
disposal. The 7th Presidency
B Magistrate, •after recording the evidence of ten prosecution witnesses, framed a charge on September 7, 1968, under section
120B/409 against all the tour accused and a charge under section
409 lPC against accused Nos. 1 to 3.
The allegations in the
complaim were briefly as follows :-
c
The complainant was a partner of M/s. Kalinga Bakery Biscuit Confectionary and Mineral Water Company of Rourkela in
Orissa and was granted actual users' import licence on November
18, 1956, by the Joint Chief Controller of imports and Exports,
Calcutta, for import of skimmed milk powder and other commodities upto the value of Rs. 60,000/-. This commodity was for
the purpose of being used in the licencee's· factory.
The comD
plainant appointed M/s. Arun Importer (P) Ltd., owned, managed and controlled by accused Nos. 1 to 3, as his agents to impoN
52.5 bags of milk powder from New Zealand. The first accused
wrote a letter dated July 25, 1967, informing the complainant
that the goods had already been shipped and that they would be
arriving very shortly. Accused Nos. 1 to 3 also offered to assist
the complainant with a loan of R~. 25,000/- to enable him to clear
the shipping documents from the Bank. The 4th accused was inE
troduced by the other accused as a Customs Clearing Agent and
on their suggestion, tht\ complainant appointed him as his clearing
agent. After clearing the shipping documents with the assistance
of the loan provided by the accused, the complainant; however,
F
was not informed about the actual arrival of the ship. The complainant addressed a letter dated August 19, 1967, to accused
No. 4 asking for information about the arrival of the J!;oods. None
of the accused gave any irntimation about the arrival of the goods.
However, to his surprise, the complainant read in the newspaper
a report on August 22, 1967, about the police having recovered
G
from the various parts of Calcut~a several bags of milk powder
stated to have been imported on his account. The complainant
rushed to Calcutta amd contacted the accused but was not able
to get any information.
Accused No. 4 flatly declined to even
recognise the complainant or talk to him; accused Nos. 1 to 3,
however, professed ignorance about the whole thing and hinted
ll
that accused No. 4 might have diverted the goods to other persons.
On August 26, 1967, an application was filed before the Chief
Presidency Magistra!te to direct the police to make an investigation under section 156(3) of the Criminal Procedure Code re-
182
SUPREME COURT REPORTS
(1973] 3 s.c.R.
garding the missing quantity of milk powder. Iill the said application, however, only Shanti Bose (the present accused No. 4)
was cited as an accused, as the complainant ,did not have any
reason to suspect the other accused.
The milk powder seized
by the police was laiter on directed to be returned to the complainant by the High Court on his furnishing security. Accused
Nos. 1 to 3, coming to know about this proceeding, instituted on
September 25, 1967, a suit against the complainant in the High
Court (Suit No. 2283 of 1967) praying for a declaration that
A
B
the plaintiff was the pledge of 316 bags of milk powder of the
defendant and prayed for a decree in the sum of Rs. 26,744.87.
They also asked for various interim reliefs.
The complainant,
during the pendency of the proceedings before the Chief PresFC"
dency Magistrate, came to know that all the accused persons
had taken away on August 19, 1967, the entire quantity pf 525
bags of milk powder, which had been imporited on his account
without his knowledge, consent or instructions and that they had
also mis-appmpriated about 200 bags before the police could
raid their premises. On an ascertainment of these facts, the complainant withdrew his original complaint with the pemtlssion of
the court and instituted the present complaint aglltnst all the
accused.
D
On receipt of the complaint, the Chief Presidency Magistrate
ordered a judicial enquiry to be held by the 9th Presidency
Magistrate. In the judicial enquiry held by the latter, the comE.
plainant had brought on record various documents to substantiaite his allegations.. As a result of the enquiry, the Chief Presidency Magistrate on December 26, 1967, summoned all the four
accused persons under sections 120B/ 409 and 409 and
transferred the case for disposal to the 7th Presidency Magistrate.
The learned Magistrate, after a consideration of the materials
F
placed before him by the complainant, framed on September 7,
1968 charges against all the accused under sections 120B/ 409
IPC and a
charge under section 409 IPC against
accused
Nos. 1 to 3.
None of the accused persons moved the High Court against
the order of the Magistrate issuing process or against the order
G
dated 7-9-1968 framing charges against them.
It is seen from
the records that a large volume of oral and Jocumentary evidence
had already been let in and the trial itself had almost come to
the closing stage. What remained was only to examine two more
witnesses on the side of the prosecution, as per order dated
24-2-1969, and also to examine one Durga Dutt Chowdhury as
H
a court wiUless under section 540, Criminal Procedure Code, as
per order dated 7-3-1969. The witnesses examined s9 far by the
prosecution had , also . been cross-examined, by the defence.
A
AMAll CHAND v. SHANTI BOSE (Vaidialingam, /.)
183
While matters stood thus, the 4th accused mo~ the High Court
in Criminal Revision No. 238 of 1969 for quashin& the charges
and the entire proceedings that had taken place before the Magis·
trate. There was also a prayer in the alternative for stay of the
criminal proceedings till the disposal of Civil Suit No. 2283 of
B
1967. Accused No. 2 filed a similar Revision No. 289 of 1969,
followed by accused Nos.
1 and 3, who were the petitioners in
Criminal Revision No. 290 of 1969.
All the three Criminal Revisions were heard together by the
High Court and have been dealt with in its common judgment.
On behalf of the accused, five contentions were urged before the
c
High Court for quashing the charges as well as the entire proceedings pending ~ore the Presidcmcy Ml\gistrate.
The first
contention related to the maintainability of the present proceedings by the complainant, when he himself was an accused in a
case Uillder seotion 5 of the Imports and Exports ( CoDJtrOl) Act
194 7, stated by the Central Bureau of Inves\igation, Economic
D
Offences wing, Calcutta, in B. C. case No. 23/W/67. It was
urged before the High Court that though he had been discharged,
he is, nevertheless, an interested complainant.
The High Courl!
rejected this contention and held that, on that account, the present
proceedings cannot be quashed.
The second contention Of the accused related to the effect of
E
the order of withdrawal of the earlier complaint on the present
proceedings. It was pleaded that the dismissal of the first complaint operates as a bar to these proceedings.
However, this
contention also was rejected by the mgh Court on rthe ground
that an order of dismissal under section 203, Criminal Procedure!
Code, is no bar to the entertainment of a ~ond complainam:
F
on the similar facts, though such a complaint can be entertaillled
only under exceptional circumstances. The High Court ultimately held that the present proceedings are not unwarranted . ot
unable in view of the first order of discharge in the circumstances:
of the present case.
G
The third contention that was taken before the High Court
by the accused was that the factum of entrustment has not been
established by clear and cogent evidence and as such,
there
cannot he any breach of trust, for less any dishonest conversion
leading to a conspiracy. The learned Judge held that it is difficult, at that stage, on the evidence adduced, to hold that there
has not been any entrustment, especially as ·the
whole
case
H
depends upon on appreciation of the entire evidence for coming
to a conclusion one way or the other. On this reasoning, this
contention also was rejected.
184
SUPREME COURT REPORTS
•
[197 3] 3 s.c.R.
It must be noted that the third contention was an invitation
to the High Court to consider the evidence already
adduced
before the Magistrate and to come to a conclusion that no entrustment had been established. The High Court, in our opinion,
quite rightly, declined at that stage, to- go into that question of
iact and left it to the Magistrate to assess and appreciate the
evidence and come to a conclusion one wav or the other. We are
particularly referring to this aspect because, as will be seen later,
the High Court adopted a different criteria when it dealt with
the fifth contention of the accused.
The fourth contention of the accused was that both the first
and 1he second complaints suppressed material facts,
vitiating
the present proceedings. The fifth contention, as the High Court
itself observes, related to the merits, namely, that the evidence
on record does not establish the offences with which the accu;ed
are charged.
These two contentions have found favour with 'the
High Court. It is on the basis of the acceptance of these contentions that the entire proceedings have been quashed.
The fourth contention of the accused was that the complainant
had suppressed material facts, which were within his lmowledge,
in the first complaint filed on August 26, 1967.
Particularly,
it was stressed that the complainant had not even referred to the
Civil Suit No. 2283 of 1967 instituted against him.
The said
complaint also does not refer to the complainant having taken
a loan of Rs. 25,000/- from the accused.
The leall)ed Judge has
accepted this criticism as justified. Jt is not necessary for us to
refer to, what according to the learned Judge were, certain omissi<lhs made by the complainant in his original comp!afot filed on
August 26, 1967. But it is enough to state that the view of the
learned Judge that even the suit instituted against the complaimnt
had not been referred to, is not justified.
The complaint was
filed on August 26, 1967, whereas the suit against the complainant was filed on September 26, 1967. It is also the view of the
learned Judge that the present complaint also does not refer •to
certain matters, which were within the knowledge of the cmn_ plainant. We do not propose even to advert to these matters.
According to the High Court, there has been a suppression
of some material facts in the two petitions of complaint and,
therefore, the present proceedings must be held to be bad and
repugnant effecting their maiiltainabi!ity.
The High Court has
referred in this case to a decision of the Calcutta High Court
which, in our opinion, has· no bearing.· The decision is in Sunder
Das Loghani v. Farun Rustom Irani(').
That was a case of
(!) A.LR. 1939 Calcutta 320.
A
B
c
....
D
E
F
G
H
A
B
c
D
E
F
G
.H
AMAR CHAND v. SHANTI BOSE (Vaidialingam, J.)
1$5
discharge of the accused under section 25 3 ( 2) of the Criminal
Procedure Code, as the Magistrate was of the opinion that the
complainant had deliberately suppressed several facts and ~hat
the complaint was a thoroughly dishonest one. In the end the
High Court has held that the present proceedings are 1Yad and
improper ,and, therefore, they have to be quashed.
The fifth and the last contention taken on behalf of the
accused relates, as the High Court itself states; to the merit; of
the case and is based upon the evidence on record, both oral and
documentary. After a consideration of certain items of evidence,
the learned Judge has held that the evidence on record rules oot
any offence of breach of trust. or a conspiracy to commit the
same, by the accused persons wd, therefore, the present croceedings are not maintainable and have to be quashed.
A representation appears to have been made on behalf of the
complainant that a large volume of evidence, oral and documentary, has already been adduced and the trial has gone on for
a long time and that only two more prosecution witnesses and a
court wimess remain to be examined. On this basis ir was
pressed biefore the High Court by the complainant that the High
Court should allow the proceedings to go on and to come to its
logical conclusion and that the High Court should not inte1fere
at that stage.
The learned Judge, however, considered this representation and held that the two remaining· prosecution witnesses should not be allowed to be examined 'in the facts and
circumSl\ances of the case, as they cannot possibly have any material effect on the merits of the case'.
The High Court further
held that even the proposed examination of the court witness is
not necessary, as it will only prejudice the accused and undo
the effe9t of their cross-examination.
On this basis, the
representation made on behalf of the complainant was rejected.
On behalf of the appellant, Mr. D. Mookerjee very strenuously
attacked the reasoning of the High Court for quashing the charges
framed agailllst the accused and the entire proceedings that had
taken place before the Presidency Magistrate. On the other
hand, Mr. A. N. Mulla, learned counsel on behalf of the accused,
urged that the High, Court was justified, in the circumstances, in
quashing the charge 'as well as the entire proceedings so far taken
place before the Presidency Magistrate.· The learned oounsel
appearing for the State supported the appellant and urged that
!he High Court :was not justified in interfe!ing with the proceedmgs when the trial had gone on for a considerably long time and
was due to close.
·
We have already referred to the 4th and the 5th contentions
urged on behalf of the accused which have found favour with
186
SUPREME COURT REPORTS
[1973] 3 S.C.R.
the High. Co~rt. We ~ave already po.i!llted out that the learned
~udge qmte ~ghtly dec!Ined, when dealing with the third contention, to consider, on an appreciation of evidence, whether an
entrustment h~s 1*:en proved. This, the High Court has properly
left to be decided by the Magistrate after the entire evidence is
cl?sed.
Bu~ when dealing with the fifth contention, which the
High Court Itself says, relative to the merits of the case and has
to be decided on the ba~is of the evidence on record, 'both oral
and doc~me.ntary, the H~gh C?urt inste?d of adopting the same
test, as 1t did when dealing with the third contention embarked
_ unon a fairly elaborate appreciation of the evidence ~n record
aind ultimately 7ame to the conclusion that the evidenco on record
does not establish any breach of trust, or a conspiracy to commit
~e same, by the accused persons. Regarding the fourth contention, w~ich also has found ac~eptance at the hands of the Higl\
Court, 1~ relates .to what accordmg to the accused was, suppression
of certam matenal facts by the complainant m his two complaints.
In our opinion, the High Court was not justified, in the particular circumstances of this case, in quashing the charge, as well
as the entire proceedings that had taken place ~ore the Mag:istraJte.
It is not as if the accused had moved t~e High Court at
the earliest stage when the Presidency Magistrate issued sommons
to them. Nor had they approached the High Court when charges
were framed against them.
The accused had been summoned,
after a judicial enquiry biY the Chief Presidency Magistrate on
December 26, 1967, under sections 120B/409 and 409 IPC.
Before the Magistrate, the evidence, oral and documentary, was
adduced by the complainant in the presence of the accused. On
a consideration of such materials, the
Presidency Magistrale
framed charges against all the four accused as early as September
7, 1968. If the case of the accused was that the allegations in
the complaint do not constitute the offence complained ol or that
the complaint has to be 11uashed for any ground available illl law,
they should have approached the High Court, at any rate, immediately after the charges were framed.
The records disclose
<hat it was the fourth accused, who moved the High Court to
quash the proceeding on March 17, 1969, earl\er than the other
accused.
Even by that date, several prosecution witnesses had
been examined and they had also been cross-examined by the
accused.
Several items of documentary
evidence had 'already
been let in during the trial. Only two prosecution witnesses and
a court witness remained to be examined. The proper course
at that stage to be adopted by the High Court was to allow the
proceedings to go on and to come to its logical conclusion, one
way or the other. and decline to interfere with those proceedings.
The fourth contention related to the
suppressions of certain
B
c
D
F
G
H
A
B
c
D
AMAR CHAND v. SHANTI BOSE (Vaidialingam, 1.)
181
materials in the complaint.
We do not propose to express any
opinion on that aspect because, even assuming that there has
been suppression, that is a matter to be considered by the Trial
Magistrate.
Similarly, as to whether the evidence on
record
establishes that an offence of breach of trust has been committed, or not, is again a matter for the Trial Court _to come to a
oonclusion, one way or the other, after an appraisal of the entire
evidence .that is let in by the prosecution and by the defence if
any. The High Court was not justified at that stage to have ~
barked upon an appreciation of the evide!llce.
Here again, we.·
do not express any opinion, on merits, as the matter is to be con·.
sidered by the Trial Magistrate.
The High Court was also equally not justified in holding that
the two prosecution witnesses should not be examined 9!11 the
ground that their evidence will not have any material effect on
the merits. The further view of the High Court that the exam.ina1ion of the court witness will prejudice the accused, is. also
wi1hout any basis.
In fact, the High Court's decision 011 the
question of these witnesses is really on a representation made on
blehalf of the complainant that the trial is ajmost coming to a
close and that only two more prosecution witnesses and one court
witness remain to be examined.
So far as
we could see, the'
accused have not challenged the order of. the Magistrate dated
February 24, 1969, allowing the prosecution to examine Satana·
E
rayan Agarwalla and an officer of. the Directorate of Industries,
Government of Orissa; nor have they challenged the order dated
March 7. 1969, of the Magistrate allowing the prayer of theprosecution for examining Durga Dutt Chowdhury as a court
witness under section 540. In holding that the proposed exami:
nation of Durga Dutt Chowdhury, as a court wrtness, will pre·
judice the accused,
the High Court has not given due consi..
deration to the decision of this Court in Jamatraj Kewalji Govani
F
G
H
v.The State of Maharafhtra( 1).
It is not clear whether the High Court passed the order, irr
question, under section 561A or under section 439 of the Code
of Criminal Procedure. This Court has la.id down the principles
in R. P. Kapur v. The State of Punjab('), which have to be·
borne in mind by the High Court when its inherent jurisdiction
under section 561A is invoked for ·quashing the proceedings
pending before a subordinate court.
It has been emphasised·
that the inherent jurisdiction could be exercised to quash proceedings in a proper case, either to prevent the abuse of the·
process of any court or otherwise to secure the ends of justice.
This Court has also indicated some of the categories of case where·
(!) [1967] 3 S.C.R. 415.
mo : ~ < P : 1 r.
188
SUPREME COURT REPORTS
[1973] 3 s.c. ..
the inherent jurisdiction could and should be exercised to quash
proceedings.
However, the exercise of the power by the High
Court, in the case before us, does not come within the ambit of
the principles laid down by this Court in the above decision. For
instance, the second contention taken before the High Court by
the accused related to the maintainability of ithe second com·
plaint, when the first complaint had been withdrawn and the
accused had been discharged.
If the High Court had accepted
the contention of the accused in that regard, it may be that the
High Court was justified in quashing ithe proceedings, though at
a very late stage.
But on that point, the High Court's decision
is in favour of the complainant.
Thii other points 'taken int0
account by the High Court do not justify the exercise of its power
under section 561A and that itoo at a very late stage of the proceedings.
Even assuming that the High Court was exercising jurisdiction
under section 439, in oμr opiniort, the present was not a case
for interference by the High Court. The jurisdiction o.f the High
Court is to be exercised normally under section 439, Criminal
Procedure Code, only in exceptional cases, when there is a glar·
ing defect in the procedure or there is a manifest error of point
of law and consequently there has .been a flagrant miscarriage of
justice.
The High Court has not found any of these circum~·
tances to exist in the case before us for quashing the charge and
the further proceedings.
The judgment and order of the High Court quashin2
the
charges framed against the accused as well as the other proceed·
ings based thereon, pendimg in case No. C/3443 of 1967, are
set aside.
The learned Presidency Magistrate will proceed with
the further trial and give it a very expeditious disposal. We make
it clear that the directions given by the Chief Presidency Magis.
Irate regarding the examination of itwo mote prosec;ution wit·
J!esses and the court witness will stand, subject to any modifications that may be made by that Court in regard to the directions
already given by it. In the result, the appeals are allowed.
V.P.S.
Appeals allowed.
A
D
c
D
F
G