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Assistant Collector of Customs Vs. Sudarshan Kumar Modi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Miscellaneous (Main) Appeal No. 245 of 1984
Judge
Reported in26(1984)DLT49
ActsCode of Criminal Procedure (CrPC) , 1973 - Sections 397; Constitution of India - Article 227
AppellantAssistant Collector of Customs
RespondentSudarshan Kumar Modi
Advocates: V.K. Kapoor,; S.L. Watel and; R.K. Watel, Advs
Cases ReferredThen Gopal Dass v. The State Air
Excerpt:
.....rohtagi and others, 1983crilj159 wherein it has been held as follows :it is well settled that the inherent powers under section 482 of the present code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. 961 (full bench) of our own high court have dealt with this very question (at page 964) which reads as follows :this question having been settled authoritatively it is not open to the petitioners to invoke the inherent powers of this court having failed to avail of their right of appeal or revision. (3) in the case in hand the petitioner bad a remedy by way of filing a revision petition in the high court against the impugned order of the learned addl. 397 of the code but he failed to avail himself of the..........order has become final and conclusive and cannot be set aside by the high court in exercise of its inherent powers under s. 482 of the code. in support of this contention he has cited some authorities the latest of which is municipal corporation of delhi v. ram kishan rohtagi and others, : 1983crilj159 wherein it has been held as follows :- 'it is well settled that the inherent powers under section 482 of the present code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. further, the power being an extraordinary one, it has to be exercised sparingly. if these considerations are kept in mind, there will be no inconsistency between sections 482 and 397(2) of the preset code.'in another authority of the.....
Judgment:

Jagdish Chandra, J.

(1) This petition under Article 227 of the Constitution of India read with S. 482 of the Code of Criminal Procedure, 1973 (in short the Code) has been brought by the petitioner Asstt, Collector of Customs, Palam Airport, New Delhi, for quashing of the order dated 17-9-1983 passed by Shri Mahesh Chandra, Addl. Sessions Judge, New Delhi discharging respondent No. 1 Sudershan Kumar Modi in respect of the offences under Ss. 132 and 135 of the Custom Act, 1962 and under S.5 of the Import and Export (Control) Act, 1947. The aforesaid order of discharge by the Addl. Sessions Judge, New Delhi was passed in revision petition brought by respondent no. I Sudershan Kumar Modi feeling aggrieved from the order dated 8-9-1981 of the learned A.C.M.M., New Delhi framing the charge against him under the aforesaid provisions of law.

(2) Mr. Watel representing respondent No. 1 has assailed the maintainability of the petition under S. 482 of the Code on the ground that the petitioner had the right to file a revision against the impugned order of the learned Addl. Sessions Judge, in the High Court but the petitioner did not file any revision for which limitation expired before 12-1-1984 as a result of which the impugned order has become final and conclusive and cannot be set aside by the High Court in exercise of its inherent powers under S. 482 of the Code. In support of this contention he has cited some authorities the latest of which is Municipal Corporation of Delhi v. Ram Kishan Rohtagi and others, : 1983CriLJ159 wherein it has been held as follows :-

'IT is well settled that the inherent powers under Section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly. If these considerations are kept in mind, there will be no inconsistency between Sections 482 and 397(2) of the preset Code.'

In another authority of the Supreme Court reported as Madha Limaye v. State of Maharashtra, : 1978CriLJ165 the following principles were spelt out from the provision of law contained in S. 482 of the Code observing that the same have been followed ordinarily and generally, almost invariably, barring a few exceptions :-

'(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; (3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.'

Then Gopal Dass v. The State Air 1978 Crl. L.J. 961 (Full Bench) of our own High Court have dealt with this very question (at page 964) which reads as follows :-

'THIS question having been settled authoritatively it is not open to the petitioners to invoke the inherent powers of this Court having failed to avail of their right of appeal or revision. Inherent powers of the Court preserved in S. 482 of the Code and as held in a catena of cases are to be exercised, namely, (1) for giving effect to any order passed under the Code, or (2) to prevent abuse of the process of any Court or (3) otherwise to secure the ends of justice.'

It was also observed in that authority that while exercising powers it has to be borne in mind that this power cannot be exercised in regard to matters specifically covered by the other provisions of the Code and also that S. 482 of the Code which saves the inherent powers of the Court cannot override any express provision in the statute which saves that power and if there is an express provision in a statute governing a particular subject there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which are made advisedly to govern the particular subject-matter. In Bhiku Ram Jain etc. v. M.C.D. & others I.L.R. 1977 DB 532 in para 41 it is remarked that the inherent power recognized by law under S. 482 of the Code is, however, designed to meet those cases for which there is no provision in the Code. In para 42 thereof it is also mentioned that the inherent power is to be used sparingly only when it is necessary in the interest of justice to exercise the power.

(3) In the case in hand the petitioner bad a remedy by way of filing a revision petition in the High Court against the impugned order of the learned Addl. Sessions Judge under S. 397 of the Code but he failed to avail himself of the same and rather allowed it to lapse by not filing the same within the limitation allowed under the law which expired on 12-1-1984 and so in view of the aforesaid authorities it should not be open to him to avail of or to invoke the inherent jurisdiction of this Court under S. 482 of the Code, which is to be used sparingly and only when there is no other remedy provided for the redressal of the grievance in the Code.

(4) The learned counsel for the petitioner has contended on the basis of Raj Kapoor and others v. State (Delhi Administration) and others : 1980CriLJ202 that the label of the petition filed by an aggrieved party is immaterial and that the High Court can examine the matter in an appropriate case under its inherent powers. If we take up this petition under S. 482 of the Code as a revision petition, the same would be obviously barred by time as already pointed out above and this shall not help the petitioner in any manner. No compelling circumstance has been pointed out by the learned counsel for the petitioner in this case so as to entitle the Court to exercise its inherent powers under S. 482 of the Code even though there was the revisional remedy available to the petitioner for the redressal of his grievance against the impugned order which remedy he allowed to lapse and thus this cannot be said to fall within the exception to the aforesaid rule that when an alternative remedy is provided by the Code reference to inherent powers should not be made. Even in the aforesaid authority it was observed in para 10 thereof as follows :-

'EVEN so, general principle pervades this branch of law, when a specific provision is easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code.'

So, the petitioner cannot receive any assistance even from the aforesaid Supreme Court authority.

(5) In this petition support from Article 227 of the Constitution of India is also sought. Mr. Watel representing respondent no. I has cited before me Miss Maneck Custodji Surjarji v . Sarafazali Nawabali Mirza, : AIR1976SC2446 wherein the following observation appear :

'THE respondent had clearly a legal remedy available to him by way of an appeal against the decree of the City Civil Court and this remedy was not only adequate but more comprehensive than the one under Art. 227 of the Constitution. Even so, for some inexplicable reasons, the respondent chose to prefer a Special Civil Application under Art. 227 of the Constitution and Vaidya, J., entertained the Special Civil Application and granted relief to the respondent casting to the winds the well-settled principle that the High Court does not ordinarly, in exercise of its discretion, entertain a special civil application under Art. 227 of the Constitution where an adequate alternative legal remedy is available to the applicant. It is true that this principle is not rigid and inflexible and there can be extraordinary circumstances where despite the existence of an alternative legal remedy, the High Court may interfere in favor of an applicant, but this was certainly not one of such extraordinary cases. It is indeed difficult to see how the learned Judge could entertain a Special Civil Application against a decree passed by a subordinate court when the procedural law allows an appeal against it and that appeal lies to the High Court itself. It must be realised that the jurisdiction under Art. 227 of the Constitution is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked.'

(6) No authority to the contrary was cited by the learned counsel for the petitioner and consequently the provision under Art. 227 of the Constitution of India can also not be invoked by the petitioner for quashing the impugned order as the remedy by way of revision was open to him which he did not avail and allowed the limitation within which it could be filed to lapse.

(7) In view of what has been stated above the petition is dismissed.


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