Whether to invoke Code of Criminal Procedure Crpc – Section 482 or file writ

What Is Inherent Jurisdiction of High Court?/section 482 Cr.P.C. – What Are the Circumstances Under Which It May Be Exercised ? – what is the consequence if THE HIGH COURT in exercise of power under Section 482 of the Code modified its earlier order?

Excerpts from judgement: Engineering Export Promotion Council Vs. Usha Anand & Another
No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts.
14……………… it envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of the Court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction

State of U.P. and others v. Surender Kumar [(2005) 9 SCC 161] wherein the appellant-State had assailed the order passed by the a learned Judge of the Allahabad High Court who, in exercise of power under Section 482 of the Code, had modified its earlier order directing the respondent-State and its functionaries not to carry out search and seizure of the goods lying at the railway station or in the custody of the City Booking Agency belonging to the applicant therein prior to their delivery to the consignee and also not to interfere in the functioning of the City Booking Agency. The two learned Judges opined that the High Court could not have modified the order as it amounted to review. Repelling the contention that the High Court had only acted in accordance with the judgment of the Division Bench of the said High Court, the two-Judge Bench proceeded to state as follows: – “In the garb of an application for modification of that order, the respondent could not file an application which was in effect a review application praying for other reliefs. Yet the High Court passed an order directing the appellants not to search and seize the goods lying at the railway station or in the custody of the City Booking Agency of the applicant prior to the delivery to the consignees. It has further directed that the appellants shall not interfere in the functioning of the City Booking Agency. These are matters which were entirely beyond the scope of the application under Section 482 CrPC and if, we may say so, beyond the jurisdiction of the High Court exercising jurisdiction under Section 482 CrPC. It does not arise out of any order passed by a court, nor was there any allegation of abuse of the process of the court, nor was it a case of manifest injustice caused to a party. A direction like the one which the High Court has given in its impugned order could be given by the High Court in exercise of its writ jurisdiction in an appropriate case and not under Section 482 CrPC.”

Para 20. It is clear that the money was deposited by the husband of the Ist respondent on his own volition with the appellant. The High Court has observed that the other three brothers had deposited the amount under same circumstances and, therefore, after their acquittal the amount was directed to be refunded. The High Court has referred to its earlier order wherein it had been categorically stated that the money was deposited as a condition of bail. Deposition of any sum as a condition of bail and a deposit with the Agency on one’s own even if to avoid arrest would stand on a different footing. The later action has nothing to do with the proceedings in the court. Thus understood, Section 482 of the Code could not have been exercised as the action taken by the appellant, a channelising industry under the Ministry of Commerce is absolutely an administrative action and, therefore, we are of the considered opinion that the same can only be challenged by way of a writ petition and not by seeking relief invoking the inherent power under Section 482 of the Code.

21. Consequently, the appeal is allowed, the order passed by the High Court is set aside and liberty is granted to appellant to approach the High Court by way of writ petition. If a writ petition is filed, the same shall be dealt with on merits. Needless to emphasise, all contentions relating to liability, entitlement for refund and all other aspects are kept open as we have not expressed any opinion on any count except the jurisdictional facet. There shall be no order as to costs.

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