Read Time: 06 minutes
The bench found that no opportunity was granted to the appellant to take remedial steps by moving an application under Section 407 of the CrPC before the high court
The Supreme Court has said that the Criminal Procedure Code is procedural in nature and technical defects and irregularities cannot come in way of substantial justice.
A bench of Justices Sanjiv Khanna and S V N Bhatti made the observation while exercising its extraordinary power under Article 142 of the Constitution. Court allowed an appeal against the Jharkhand High Court's judgment.
The high court had dismissed a petition filed under Section 482 of the Criminal Procedure Code against an order by the judicial magistrate discharging an accused in a cheque dishonor case just before the final arguments, on the ground of lack of jurisdiction.
Appellant Bijay Shankar Mishra had filed the complaint under Section 138 of the Criminal Procedure Code against Sourav Ghosh for dishonour of cheque to the sum of Rs 45.20 lakh in the court of the judicial magistrate at Jamshedpur.
Upon a plea by Mishra, the bench found that no opportunity was granted to the appellant Mishra to take remedial steps by moving an application under Section 407 of the CrPC before the high court.
In haste and hurry, an order was passed, inter-alia, on the ground that the cheques in question were presented in the account of the appellant Mishra at Adityapur, district Saraikela-Kharsawan and, therefore, only the courts at Saraikela-Kharsawan possessed territorial jurisdiction to try the case, the top court bench noted.
After hearing the parties, the bench said, "We are of the opinion that this is a fit case to exercise our power under Article 142 of the Constitution read with Section 406 (power of SC to transfer case) of the Code".
The bench said that the Judicial Magistrate, First Class, had passed the order without realising the legal consequences as well as the fact that the trial had remained pending for more than four years and had proceeded without any objection to territorial jurisdiction, till the stage of final arguments.
"There was a lapse and proper legal guidance, which was not provided to the appellant Mishra. We feel that the appellant Mishra should not suffer on account of lack of proper legal assistance. Procedural defect/lapse, had a remedy, and was not substantial as to constitute lack of subject-matter jurisdiction. The Code is procedural in nature and technical defects and irregularities should not come in the way of substantial justice," the bench said.
The bench relied upon its recent judgment of February 21 2023 in 'Yogesh Upadhyay and Another vs. Atlanta Limited', wherein the top court exercised its power to transfer cases and appeals under Section 406 of the Code.
The court set aside the order passed by the judicial magistrate and the high court and directed the trial in the criminal complaint filed by the appellant Mishra to continue in the court of the Judicial Magistrate, First Class, at Jamshedpur, Jharkhand.
The bench also clarified this order was being passed in peculiar facts and circumstances of the case and will not be treated as a precedent.
Case Title: BIJOY SHANKAR MISHRA V. THE STATE OF JHARKHAND & ANR.
Please Login or Register