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M. Chandran Vs. B. Jagadamma and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1982CriLJ100
AppellantM. Chandran
RespondentB. Jagadamma and anr.
Cases ReferredMadhu Limaye v. State of Maharashtra
Excerpt:
- - the principle has been well stated by the supreme court in amar nath v. it is well settled that the inherent powers of the court can ordinarily be exercised when there is no express provision on the subject-matter......worthwhile to consider the scope of section 482, cr. p. c, in those proceedings. section 482 saves inherent powers in the high court to make such orders as are necessary to give effect to any order under the cr. p. c, or to prevent abuse of the process of any court or otherwise secure the ends of justice. the provision, it may be noticed, confers no power on the high court. all that the section does is to declare that such inherent powers on the high court may possess have not been taken away or abridged by any provisions of the code. section 482, cr. p. c. has not given any additional powers to the court which it did not possess before that section was enacted. power is inherent but the courts are bound to exercise self-restraint in its use. the use of the extraordinary power so.....
Judgment:
ORDER

P. Subramonian Poti, Ag. C.J.

1. The petitioner in this petition which is Under Section 482 of the Code of Criminal Procedure is the husband of the 1st respondent and father of the minor 2nd respondent. Respondents claimed maintenance under S, 125 Cr. P. C. According to the petitioner who was the respondent in that petition, his wife vas refusing to live with him without justifiable cause and he had not refused or neglected to maintain. The Additional Judicial First Class Magistrate, Trivan-drum found against this plea and awarded maintenance to the mother and the child. That was confirmed in a revision filed by the petitioner before the Sessions Court, Trivandrum. That is being challenged in this petition. According to the petitioner the courts below went wrong in awarding separate maintenance since grounds to justify it had not been established. Whether there was wilful neglect or refusal to maintain has not, according to the petitioner, been found. That is not correct. That has been found by the Magistrate and it is held that the offer made by the husband to take the wife and child back to his house :Ts not genuine.

2. Since a number of similar cases invoking jurisdiction Under Section 482 of the Cr. P. C. are before me today and naturally there may be many more similar cases in this Court, I think it is worthwhile to consider the scope of Section 482, Cr. P. C, in those proceedings. Section 482 saves inherent powers in the High Court to make such orders as are necessary to give effect to any order under the Cr. P. C, or to prevent abuse of the process of any Court or otherwise secure the ends of justice. The provision, it may be noticed, confers no power on the High Court. All that the section does is to declare that such inherent powers on the High Court may possess have not been taken away or abridged by any provisions of the Code. Section 482, Cr. P. C. has not given any additional powers to the Court which it did not possess before that section was enacted. Power is inherent but the Courts are bound to exercise self-restraint in its use. The use of the extraordinary power so inherent in the court and saved Under Section 482, Cr. P. C. is to be reserved, as far as possible, to extraordinary cases.

3. When power is expressly taken away by the statute, such power cannot be saved by reference to the inherent power.

4. A revision is a remedy available to a party Under Section 397, Cr. P. C. But the scope of examination in a revision is limited. The correctness, legality or propriety of any finding, sentence or order and the regularity of any proceeding of an inferior court are matters that are open to examination in a revision. But even so, the scope is much more limited than in an appeal. Section 397(3) of the Code, is a new provision in the sense that in the corresponding provision in Section 435 of the old Code, there is no bar to the High Court entertaining a revision when once the Sessions Judge had been moved in revision. The effect of Section 397(3) is to preclude the entertainment of a revision in the High Court once there is an adjudication in revision by the Sessions Judge and the entertainment of a revision by the Sessions Judge when once there has been an adjudication in revision by the High Court.

5. Can it be said that despite the bar in Section 397(3) the High Court can examine the correctness of an order which cannot be examined in a second revision by invoking the inherent power saved Under Section 482 of the Code. If a power has been taken away by the statute or if the statute prohibits exercise of power, that cannot be saved by resort to Section 482, Cr. P. C. That would be to invoke the section to defeat the policy of law by permitting the exercise of what is expressly prohibited. The inherent power of the court cannot therefore be exercised as if this Court can sit in revision over the revisional order of the Sessions Judge. The Parliament in Section 397(3) enacted a rule expressly making the judgment of the Sessions Judge in revision final. That provision cannot be rendered inoperative or ineffective by the exercise by the High Court of the same power under colour of exercise of inherent power.

6. The absence of definition of the limitations in the exercise of the inherent power is of no consequence and does not enable the High Court to exercise such power in any and every case as if interests of justice call for such exercise. The Code of Criminal Procedure embodies an exhaustive scheme for adjudication by courts. The trial, appellate and revisional jurisdictions are indicated in the provisions of the Code and the Code envisages finality for these decisions. That itself is an express, direct and unequivocal command to the High Court that such finality should be respected. Thelimitations in the exercise of inherent power must necessarily be read in the scheme. If neveftheless the Court sits in judgment overdecisions conceived as final decisions by the Code of Criminal Procedure, the High Court itself may be said to be guilty of abuse of the process of court. The High Court will decline to exercise inherent power in such cases not because of absence of such power but because of the policy of extreme self-restraint the court has to impose on itself.

7. The inherent power may call for .exercise in extraordinary situations, situations concerning which the Code has bailed to make specific provisions. No law lean be so exhaustive as to meet all possible situations. Since the objective of the functioning of courts is dispensation of justice a residuary power in the courts calling for exercise in extraordinary situations is conceived and that is saved Under Section 482 of the Code. The High Courts have time and again alerted against misuse of the inherent power saved Under Section 482, Cr. P. C. to review decisions of subordinate courts as if such power enables the court to sit in judgment over them as an appellate or revisional court could do. The principle has been well stated by the Supreme Court in Amar Nath v. State of Haryana : 1977CriLJ1891 . Fazal Ali, J. speaking for the court said thus, about the scope of Section 482 in the said decision:

While we fully agree with the view takeri by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under Sub-section (2) of Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but' preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressely barred Under Section 397(2) and cannot be the subject of revision by the High Court then to such a case the provisions of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.

8. My learned brother Kader J. ' in the decision in T. V. Kannan v. Karthya-yani ILR (1978) 2 Ker 563 considered the scope of Section 482 and I am in agreement with the view expressed by the learned Judge in that case. Another learned Judge of this Court Janaki Amrna, J. in Velayudhan v. Sukumari 1978 Ker LT 301 : 1978 Cri LJ 1209 referred to the principle stated by the Supreme Court in Madhu Limaye v. State of Maharashtra 1977 Ker LT (SN) 29 : 1978 Cri LJ 165 in para. 7 of her judgment and observed that the principle stated in that case applies in the case of a petition filed for invoking the inherent powers of the High Court where there is express provision barring a second revision Under Section 397(3) of the Code.

9. In a case where a plea for award of maintenance had been tried by a court and maintenance has been awarded and in revision at the instance of the party against whom such award has been made the Sessions Judge has declined to interfere, it is not for this Court to go through the case over again or to find out whether this Court could interfere with the findings on a different approach to the question which this Court may choose to make. Such an exercise would be uncalled for and beyond the scope of the power Under Section 482. The Court should guard against such a situation and should not be tempted to interfere merely because, if the court has occasion to go through the evidence afresh perhaps it may choose to take a view different from that; taken by the courts below. In the circumstances, I find no scope for interference Under Section 482, Cr. P. C. Dismissed.


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