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Jagmohan v. The State .
Structured Summary of the Opinion
Factual and Procedural Background
Revision Petition Nos. 53, 54 and 52 were filed by Sarvshri Sanjay Gandhi, Jagmohan, and Ranbir Singh respectively under Sections 397 and 482 of the Code of Criminal Procedure, 1973 seeking quashing of an order dated 11 February 1980 of Shri K.P. Verma, Chief Metropolitan Magistrate, Delhi. The impugned order had allowed the prosecution's application under Section 473 of the Code to take cognizance of offences despite the expiry of the limitation period prescribed by Section 468.
The background events as recited in the opinion are: - A Commission of Inquiry under Section 3 of the Commission of Inquiries Act was appointed on 28 May 1977 with Mr. Justice J.C. Shah as Chairman. The Commission submitted reports dated 11 March 1978 and 26 April 1978, and in the 26 April 1978 report found that the present petitioners had been involved in illegal demolitions of shops and houses in/around Kapeshera and Samalka (Delhi). - On the basis of the Shah Commission's findings, the C.B.I. investigated and filed a report under Section 173 of the Code on 17 July 1979. - Because by that time cognizance of the alleged offences was, according to the prosecution, barred by limitation (Section 468), the Public Prosecutor filed an application under Section 473 dated 16 July 1979 seeking condonation of delay and permission to take cognizance despite expiry of limitation. - The prosecution alleged that the illegal demolitions occurred from 4 September to 31 December 1975 and that the petitioners committed offences including conspiracy (Section 120-B) and substantive offences under Sections 427, 448, 166, and related provisions of the Indian Penal Code. - The learned Chief Metropolitan Magistrate issued notice on 27 July 1979; the petitioners appeared and inspected records; Shri Jagmohan filed a reply on 28 January 1980; arguments were heard on 4 February 1980 and the impugned order was passed on 11 February 1980 allowing condonation of delay and taking cognizance. - The present revision petitions challenge that order; the High Court set the impugned order aside, dismissed the prosecution's application for condonation of delay and quashed the proceedings against the petitioners.
Legal Issues Presented
- Whether the learned Chief Metropolitan Magistrate rightly exercised the residual discretion under Section 473 of the Code to take cognizance of offences after the expiry of the limitation period prescribed by Section 468.
- Whether the prosecution had adequately explained the delay (from the relevant limitation expiry dates until filing) or whether taking cognizance was nevertheless necessary in the interests of justice.
- Whether procedural impediments (such as the non-cognizable character of certain offences under the First Schedule and the necessity of Magistrate's order for police investigation under Section 155(2)) and the prosecution's failure to obtain necessary sanctions (under Sections 197 and 196(2)) affected the legality of taking cognizance after limitation.
Arguments of the Parties
Prosecution's Arguments
- The alleged offences were committed during the period of Emergency and victims were terror-stricken and therefore unable or unwilling to initiate proceedings earlier; this explained the delay.
- The C.B.I. registered the case after receipt of the Shah Commission report (26 April 1978) and a report under Section 173 was filed on 17 July 1979; sanctions under Sections 197 and 196(2) were sought and received in January/July 1979 as necessary before proceeding.
- Because of the extraordinary circumstances (as described by the prosecution and noted by the Magistrate), the interests of justice necessitated condoning the delay and permitting cognizance under Section 473.
Petitioners' Arguments
- Prosecution of offences punishable under Sections 166 and 448 IPC (and conspiracy where applicable) was time-barred and therefore could not be lawfully instituted.
- Even if conspiracy and the Section 427 offences carried a longer limitation, certain offences were non-cognizable per the First Schedule and Section 155(2) prevented police investigation without Magistrate's order, which was never obtained, thereby defeating later cognizance.
- The prosecution's actions were delayed and negligent (e.g., waiting for Commission's report and not promptly seeking necessary sanctions), and there was an allegation that prosecution was motivated by political vendetta and intended to tarnish reputation.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| State v. Anil Puri, Criminal Appeal No. 389 of 1977 (decided 25-5-1979) | The Code's limitation provisions are progressive and reflect public policy that one should not be faced with stale claims; limitation statutes are "statutes of repose" and confer a valuable right which cannot be taken away except by law. | The court relied on these observations to emphasize that lapse of limitation confers a valuable right (peace of mind) on an accused and that this right should not be lightly taken away; the court used this to weigh against condoning delay under Section 473. |
| G.D. Iyer v. State, 1978 Cri LJ 1180 | Section 473 vests a residual discretion in the court, but such judicial discretion must be legal, not arbitrary or whimsical; discretion must be exercised according to law and reason. | The court applied this principle to conclude that the Magistrate's exercise of discretion was arbitrary and not properly guided by legal standards and materials on record; the High Court held that revisional jurisdiction permits correction of such wrong exercise of discretion. |
Court's Reasoning and Analysis
The court's analysis proceeded stepwise and strictly on the materials and findings recorded in the impugned proceedings:
- Determination of applicable limitation periods: The court set out Sections 468 and 469 and assessed punishments to fix limitation: offences under Sections 448 and 166 IPC (and conspiracy insofar as it relates to offences punishable with up to one year) carried one-year limitation; Section 427 carried three-year limitation. Using the dates of alleged commission (up to 31 December 1975), the court calculated that limitation for the one-year offences expired on 31 December 1976 and for Section 427 (and related conspiracy) on 31 December 1978.
- On the face of the chronology, the C.B.I.'s Section 173 report (17 July 1979) was filed well after those limitation expiries: approximately two years and seven months late for the one-year offences, and over seven months late for the three-year offences. The learned Magistrate had correctly found that the delay (from 31-12-1978 to 16-7-1979) was not explained, but nevertheless condoned the delay in the interest of justice.
- The court examined the prosecution's sole substantive justification for delay — terror during the Emergency preventing aggrieved persons from coming forward — and found it unsupported by any affidavit or material from aggrieved persons. The court noted that Emergency ended 20 March 1977 and a new (hostile to the petitioners) government took office on 24 March 1977; thus, the court questioned why aggrieved persons could not have come forward thereafter.
- The court evaluated the prosecution's conduct after the Shah Commission report (26 April 1978): it observed a three-month gap until registration of the case on 10 July 1978 and further delay in seeking necessary sanctions under Sections 197 and 196(2) (moves alleged on 2 and 4 January 1979). The court characterized the prosecution's approach as lazy and leisurely, concluding that the prosecution failed to demonstrate diligence.
- The court critically reviewed the Magistrate's stated reasons for condonation of delay, noting that the Magistrate placed undue emphasis on the high status of the petitioners and made irrelevant references (e.g., Socrates and Christ; concerns about future history) that were not legally pertinent. The court held that basing condonation on the petitioners' positions was contrary to the rule of law and unacceptable.
- The court applied the precedents (State v. Anil Puri and G.D. Iyer v. State) to conclude that (a) limitation confers a valuable right which should not be taken away without lawful justification, and (b) judicial discretion under Section 473 must be exercised legally and not arbitrarily. The Magistrate's reasoning lacked specific material support, was vague about the records he purported to rely on, and was therefore an incorrect exercise of discretion.
- The court also noted a specific error by the Magistrate: stating that an earlier High Court judgment (by Mr. Justice T.P.S. Chawla finding the Shah Commission's constitution/proceedings illegal) was not binding because an appeal was pending in the Supreme Court. The High Court corrected this approach, observing that a High Court judgment remains binding until set aside by the Supreme Court; pendency of appeal does not remove its binding force.
- On these bases — unexplained delay, lack of diligence by prosecution, absence of supporting affidavits or documents showing victims' inability to act, irrelevant and insufficient reasoning by the Magistrate, and the established principles about limitation and judicial discretion — the court held that the Magistrate's order condoning delay and permitting cognizance under Section 473 was unsustainable.
Holding and Implications
Holding: The High Court allowed all three revision petitions, set aside the impugned order dated 11 February 1980 of the Chief Metropolitan Magistrate, dismissed the prosecution's application for condonation of delay under Section 473, and quashed all proceedings then pending in that court against the petitioners in respect of the offences mentioned. The court directed that the petitioners shall not be prosecuted for those offences.
Implications:
- Direct effect on the parties: The prosecution's application for condonation of delay was dismissed, the Magistrate's order was set aside, the criminal proceedings in the Magistrate's court in respect of the identified offences were quashed, and the petitioners were to be protected from prosecution for those offences as described in the opinion.
- Broader implications: The opinion underscores and applies the established principles that limitation confers a valuable right and that judicial discretion under Section 473 must be exercised legally and not arbitrarily. The court did not purport to lay down a new legal precedent beyond applying those pre-existing principles and correcting an arbitrary exercise of discretion; the decision operates to correct the specific wrong exercise of discretion in this case.
- Administrative admonition: The judgment reproves the Magistrate for relying on irrelevant considerations and for misunderstanding the binding effect of a High Court judgment while an appeal to the Supreme Court is pending; the court advised caution in future.
Revision allowed.
2. The present revision petition Nos. 53, 54 and 52 filed by Sarvshri Sanjay Gandhi, Jagmohan, and Ranbir Singh respectively under Sections 397 and 482 of the Code of Criminal Procedure 1973, (hereinafter referred to as the Code) seek to invoke the revisional and inherent powers for quashing an order dated 11th February 1980, of Shri K.P Verma, Chief Metropolitan Magistrate, Delhi allowing under section 473 of the code launching of prosecution against the petitioners beyond and after the expiry of period of limitation as prescribed by section 468 of the code. As all the petitions are in respect of the same order they are being decided together by means of one judgment, which is’ being written in Revision Petition No. 54 of 1980 filed by Shri Jagmohan.
3. On 28th May 1977, Government of India acting under Section 3 of the Commission of Inquiries Act appointed a Commission of Injuiry with Mr. Justice J.C Shah, retired Chief Justice of India as the Chairman. That Commission submitted two reports dated 11th March 1978 and 26th April 1978. In report dated 26th April 1978, the said Commission of Inquiry gave findings in respect of commission of offences by the present petitioners by way of carrying out illegal demolitions of some shops and houses in and around villages Kapeshera and Samalka situated in the Union Territory of Delhi. Due to aforesaid findings of Shah Commission, C.B.I investigated the matter. The C.B.I filed a report under Section 173 of the Code on 17th July, 1979. As by that time cognizance of the offences alleged to have been committed by the present petitioners was barred by limitation under Section 468 of the Code, an application under section 473, of the code dated 16th July, 1979 was made by Public Prosecutor for condoning the delay and taking cognizance of the offences notwithstanding the expiry of the period of limitation.
4. According to the prosecution it was in pursuance of a criminal conspiracy between the present petitioners that aforesaid illegal demolitions were carried out from Sept. 4 to Dec. 31, 1975. It is alleged by the prosecution that all the petitioners thus committed offences punishable under Section 120-B read with Sections 427, 448 and 166 Indian Penal Code. It is further alleged that each of Shri Sanjay Gandhi and Shri Jagmohan, petitioners committed offences punishable under Sections 427 and 448 read with Section 109 I.P.C while Shri Ranbir Singh petitioner committed offences punishable under Sections 427, 448 and 160 read with Section 109 Indian Penal Code.
5. Section 468 of the Code, which prescribes limitation for taking cognizance of different offences, reads as under:-
“468 (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2) after the expiry of the period of limitation.
(2) The period of limitation shall be —
(a) Six months if the offence is punishable with fine only;
(b) One year if the offence is punishable with imprisonment for a term not exceeding one year;
(c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years”.
6. Punishment for offence of conspiracy under Section 120-B is the same as is for the offence for the commission of which the conspiracy is. Punishment provided for offence punishable under Section 427 is imprisonment for two years or fine or both. Punishment for offence punishable under Section 448 is imprisonment for one year or fine of Rs. 1000/- or both. Punishment provided for the offence punishable under Section 166 is simple imprisonment for one year or fine or both. Therefore, period of limitation for the offences punishable under Sections 448 and 166 is one year while period of limitation for the offence punishable under Section 427 is three years. According to section 469 of the code starting point for limitation is one year from the date of commission of the offence. Therefore, limitation period for the offences under Section 120-B read with Sections 448 and 166 Indian Penal Code as well as substantive offences punishable under Sections 448 and 166 IPC expired on 31st Dec, 1976, while the said period in respect of offences punishable under Section 120-B read with Section 427 I.P.C and the substantive offence under Section 427 I.P.C expired on 31st Dec, 1978.
7. section 473 of the code reads as under:—
“Notwithstanding anything contained in the foregoing provisions of this Chapter, any Court may take cognizance of an offence after the expiry of the period of limitation if it is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of Justice”.
8. On account of expiry of the period of limitation, the prosecution applied for exercise of discretion under section 473 of the code. It was stated in the application that offences were committed during the period of emergency, that extreme sense of terror prevailed over the minds of public in general and it was not possible for the aggrieved persons to seek redress of their grievances, that after emergency was lifted a Commission headed by Shri J.C Shah, retired Chief Justice of India as Chairman was appointed by Government of India vide notification dated 28th May 1977, that it was on the basis of the reports dated 11th March 1978 and 26th April 1978 that the case was registered on 10th July, 1978, that after the completion of investigation reference was made to the Government for sanction of prosecution under Sections 197 and 196 (2) of the Code on 2nd and 4th January 1979, that sanctions were received on 15th and 16th July, 1979 respectively and that without any loss of time report under Sec 173 was lodged on 17th July, 1979.
9. The learned Chief Metropolitan Magistrate issued a notice dated 27th July, 1979, to every one of the petitioners to appear in the said court in person or through counsel on 16th August, 1979 to answer the aforesaid application under section 473 of the code filed by the prosecution. The petitioners put in appearance and thereafter the matter was adjourned from time to time because copies of the documents had to be supplied to the petitioners and also they had to inspect the records. On 28th January, 1980, Shri Jagmohan filed a reply to the aforesaid application for condonation of delay. Arguments were heard by the learned Magistrate on 4th February, 1980, and the impugned order was passed on 11th February 1980.
10. section 473 of the code has already been reproduced. It is apparent from the same that notwithstanding that limitation period has expired the court may take cognizance of the offences if the delay has been properly explained or in the alternative it is necessary to take cognizance of the offence in the interest of justice. The learned Magistrate after dealing with the objections raised in the reply of Shri Jagmohan petitioner and after holding that the limitation period expired on 31st December, 1978, came to the conclusion that the delay from 31st December, 1978 to 16th July, 1979, did not stand explained. His conclusions are contained in the following words:—
“I am surprised as to why the prosecution has failed to file at least an affidavit to show its diligence on the aforesaid dates and period. So I find that because of this negligence of the prosecution it could not establish its diligence w.e.f 31-12-78 to 16-7-79”. However, the learned Magistrate expressed an opinion that it was necessary in the interest of justice to take cognizance of the offences. Accordingly he passed the impugned order.
11. It was rightly held by the learned Magistrate that the delay had not been explained. It is however, to be seen if it was necessary in the interest of jus- tice to take cognizance of the offence after the expiry of the period of limitation.
12. I have already mentioned that the period of limitation was one year for the offences other than one punishable under Section 427 and the criminal conspiracy punishable under Section 120-B Indian Penal Code in respect of the said offence. Therefore period of limitation for the offences other than Section 427 expired on 31st December, 1976. The delay at the time of filing of the report under Section 173 of the Code by the C.B.I was about two years and seven months. It is urged by the learned counsel for the petitioners that commencing of prosecution in respect of offences punishable under Sections 166 and 448 I.P.C was hopelessly and incurably barred by time, that although period of limitation for the offence's punishable under Section 427 and the conspiracy in respect thereof was three years, yet as that offence was non-cognizable according to the first schedule of the Code, in view of Section 155(2) of the Code investigation in respect of the said offence could not be conducted by the Police without the order of a Magistrate which was never obtained and that hence those offences could not be taken cognizance of at all.
13. That contention has force. But even if it is taken for granted that the period of limitation was three years (as provided for offence under Section 427 I.P.C) and that the same expired on 31st December, 1978, neither the delay of more than seven months from 1st January to 16th July 1979 had been explained nor there are good grounds for taking cognizance of the offence in the interest of justice after the expiry of period of limitation.
14. The only reason given by the prosecution is that the offences were committed during the period of emergency when the people were so much terror-stricken that they had no cheek to voice their grievance before any court or the police. Firstly, no affidavit of even a single aggrieved person has been filed to show to the effect that it was on account of fear that he did not start any proceedings for redress of wrong. Secondly, even if we suppose for the sake of argument that the aforesaid contention is correct, emergency was lifted on 20th March 1977 and even a new Janata party Government came into power on 24th March, 1977. None of the petitioners had any influence over the new Government and rather the new Government was hostile and started making inquiries against petitioners through appointment of various commissions as well as instituted criminal cases. Why then the aggrieved person's could not come up and urge the police to take action against the petitioners. Then report of Shah Commission of Inquiry, due to which investigation was started by the C.B.I was submitted on 26th April, 1978. The learned counsel for the petitioner rightly contended that waiting for report of commission of inquiry could not be a justification for extending period of limitation in the interest of justice. But we take it for granted for the sake of argument, that the Government was waiting to take action against the petitioners till its mind was so instructed by the findings of the commission. But even after the receipt of the report dated 26th April 1978 three months were taken in respect of the registration of the case on 10th July, 1978. C.B.I, as is alleged by the prosecution, started investigation immediately on the registration of the case. It was fully known at that time that sanction under Section 197 would be required in respect of prosecution of Shri Jagmohan and Shri Randhir Singh petitioners because they were public servants removable with the sanction of the Government and no cognizance of the offence could be taken without such sanction. Similarly it was fully known to the prosecution that the offence of conspiracy could not be taken cognizance of without sanction under Section 196(2) of the Code. Therefore, move for obtaining such sanctions should have been made in the month of July, 1978 itself but none was done. It is alleged that moves were made on 2nd and 4th Jan. 1979 for obtaining sanctions under Sections 197 and 196 (2) of the Code respectively. It is apparent that the prosecution was taking things lazily and leisurely. How could under these circumstances the petitioners be deprived of the valuable rights which had accrued to them on account of lapse of limitation.
15. In this respect following observations of a division bench of this court consisting of Mr. Justice V.D Misra and Mr. Justice F.S Gill, in State v. Anil Puri Criminal Appeal No. 389 of of 1977 decided on 25-5-1979* are very pertinent and instructive:—
“The provision for limitation was made in the Code of Criminal Procedure 1973 (No. 2 of 1974) for the first time. It is one of the progressive steps taken by legislature keeping in view the recent trends in criminology.”
“Limitation Acts are based on public policy that one must not be faced with stale claims. Indeed one should be allowed to have his peace of mind if no action is taken against him for an alleged infraction of law within a particular period. It is for that reason that a statute for limitation has been termed as a ‘statute of repose’. The reports of the Joint Select Committee recommending the incorporation of provisions of limitations in criminal law mentions, amongst others, the grounds that (i) ‘people will have no peace of mind if there is no period of limitation even for petty offences’, (ii) ‘the deterrent effect of punishment is impaired if prosecution is not launched and punishment is not inflicted before the offence has been wiped off the memory of persons concerned.”
“Once a cognizance is barred in favour of a person he acquires a valuable right, this right cannot be taken away except under the law.”
16. In the present case not only that delay was totally unjustified and unexplained, interests of justice could never require that peace of mind of petitioners which had been bestowed due to lapse of period of limitation should be snatched away. On the other hand it will be abuse of process of law if the petitioners are made to suffer harassment of prosecution for stale alleged infractions of law after months together of expiry of period of limitation.
17. The learned Magistrate had been more swayed by irrelevant considerations in giving findings that interest of justice required prosecution of the petitioners. Further, his order lacks clarity. Relevant portion of his order reads as under:—
“Now the question is as to whether the ‘interests of justice’ demand or not that the delay should be condoned or not as has been laid down under Section 473 of the Cr. P.C I have thoroughly perused the material's on record. I have given my anxious thoughts to the various aspects of the case. I find that the circumstances of this case have been a bit extraordinary. The respondent No. 1 has been the son of the Prime Minister while the respondent No. 2 had been the Vice-Chairman of D.D.A and as an I.A.S officer and a ‘Padma Bhushan’ while the respondent No. 3 had been a responsible Executive Engineer of D.D.A As per the allegations of the prosecution, the avenue of the conspiracy has been 1, Safdarjang Road, New Delhi which has been the then official residence of the Prime Minister of India, Heaps of documents and statements were to be collected by the C.B.I So the circumstances of this case have not been normal, as per the allegations of the prosecution. On the one hand, we have got much important persons like the respondents to file, on the other hand we have got some humble so-called aggrieved persons. Let not the future generations and future history say that the judiciary of the day shirked in its duties. Let the mist be cleared and the innocence or guilt of the respondents be established. It will be also in the larger interests of respondents Nos. 1 & 2 that the case should be tried and the truth and the alleged bona fide or mala fide be established Let this case see the light of the day. At the same time I also feel that let no ‘SOCRATES’ and ‘CHRIST’ be harassed and punished. The rule of the law is on test today. So, I feel that interests of justice today demand that the delay should be condoned. If under these circumstances we are not going to condone the delay, I do not know what better case will be there when for the sake of interests of justice we shall be condoning the delay. So I find that in the larger interests of all concerned the delay should be condoned in this case. I shall be probably failing in my humble duty, if I do not condone the delay.”
18. It is clear from the above that the learned Magistrate was of the view that the petitioners were holding very high positions and therefore, it was in the interest of justice that they must be prosecuted. That reasoning of the learned Magistrate is negation of the very concept of ‘rule of law’. ‘Rule of Law’ means that law must be the same for all whether high or low and rich or poor. Law looks at the case and not personalities involved. It keeps the scales of justice even for all sections of society. By no stretch of imagination it means that law must condemn high ups and people in position. The mere fact that in the present case petitioners were holding high positions their rights as ordinary citizens conferred upon them on account of lapse of period of limitation could not be forfeited. We have to decide objectively the case of the petitioners and in that way conclusion already mentioned that prosecution cannot be given benefit of provisions of Section 473 of the Code is inescapable.
19. It is really strange on the part of the learned Magistrate to hold that it will be in the larger interest of Shri Sanjay Gandhi and Jagmohan, that the case should be tried. Will their interest be served when they will have to face long drawn trial and bear the brunt of harassment and humiliation, which the prosecution necessarily entails? Is there any necessity of undergoing ordeal of the trial for getting a stamp of innocence from a court when there is presumption that everyone is innocent unless proved otherwise? As a matter of fact it is neither in the interest of the petitioners nor, as already held, in the interest of justice that such extremely delayed and time barred criminal proceedings should be commenced, more so, when there is contention of the petitioners that the prosecution was with a view to satisfy political vendetta of the previous government and to tarnish political image of Shri Sanjay Gandhi, which is plausible.
20. Reference of the learned Magistrate to ‘Socrates’ and “Lord Jesus Christ” and in respect of their punishment is not only highly irrelevant but also lacks clarity. It is not understandable as to why such references had been made. The aforesaid references as well as remark of the learned Magistrate “Let not the future generation and future history say that judiciary of the day shirked in its duties.” are highly irrelevant. It is desirable that the judiciary should decide the cases objectively without bothering as to what would be the comments of future generation and future history. Unnecessary and irrelevant reference like the one made by the learned Magistrate should fee avoided.
21. The learned Magistrate also mentioned that he had thoroughly perused the materials on record. He also in earlier part of the judgment held that there were some materials on the record of the case to show that the aggrieved per sons were prevented by pressure etc. from approaching law courts. But there is no mention of even a single document which the learned Magistrate had the occasion to peruse or see. These vague observations should hardly be a basis for arriving at conclusions adverse to the petitioners. It was held as follows by a Division Bench of this court in G.D Iyer v. State 1978 Cri LJ 1180:—
“As we have observed Section 473 vests a residual discretion in the court.........”
“True, it is a matter of discretion, but then the discretion is not wilful or arbitrary, but legal. Judicial discretion does not mean a wild self-wilfulness, which may prompt to any and every act; but this judicial discretion is guided by the law, so as to do substantial equity and justice. It is a legal discretion to be exercised in discerning the course prescribed by law and is not to give effect to the will of the Judge, but to that of the law. Discretion is not the indulgence of a judicial whim, but the exercise of judicial judgment, based on facts and guided by law. That the Judge is endowed with discretion does not mean that he is the master of the law. He remains, as always, its Minister. He is a servant of law. As long ago as 1890 Lord Halsbury said that discretion is to be “not arbitrary, vague and fanciful, but legal and regular.” Courts of Justice are “to act according to rules of reason and justice not according to private opinion............ according to law, and not “humour”.”
22. As already stated there were hardly any reasons for the learned Magistrate to have exercised the discretion against the petitioners and in favour of the prosecution.
23. In such cases of wrong exercise of discretion this court has to exercise re-visional as well as inherent jurisdiction to redress the wrong. In the case before the division bench exercise of discretion was proper but the principle laid down was that in the event of wrong and arbitrary exercise of discretion, as happened in the present case, revisional as well as inherent powers could be invoked.
24. Before concluding I may mention that the learned Magistrate fell in error when he remarked in para 8 of his Judgment that judgment of Mr. Justice T.P.S Chawla holding constitution of and proceedings before the Shah Commission as illegal, was not binding on him because an appeal was pending before the Supreme Court, Judgment of the High Court is binding unless and until it is set aside by the Supreme Court and mere pendency of the appeal does not take away its binding force. The learned Magistrate should be cautious in future.
25. Under the above circumstances, I accept all the three petitions, set aside the impugned order dated 11th February 1980 of the learned Chief Metropolitan Magistrate, dismiss the application of the prosecution for condonation of delay and quash all the proceedings which are now pending in the said court against the petitioners in respect of the offences mentioned already and the petitioners shall not be prosecuted for the said offences.
26. Revision allowed.
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