Skip to content


Bhanwar Lal and ors. Vs. Madanlal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1978CriLJ697; 1977()WLN168
AppellantBhanwar Lal and ors.
RespondentMadanlal and ors.
Cases ReferredState of Karnataka v. L. Munniswamy
Excerpt:
.....powers under section 482 arc not controlled by section 397(2).;the powers under section 482 of the code of criminal procedure, 1973 can be exercised in relation to interlocutory orders, once the conditions mentioned in section 482 are fulfilled and exercise of such powers are not lira ted or controlled by the bar created by section 397(2) of the code, in as much as the two powers are separate and distinct and operate in their respective fields. it is needless to stress that the inherent powers under section 482 of the code have to be exercised with due circumspection and in very rare cases. the inherent powers can be exercised only for any of the three purposes mentioned. they cannot be invoked in respect of any matter covered by the specific provisions of the code, nor can they be..........the division bench is:whether the inherent powers of the high court under section 482 of the code of criminal procedure, 1973 are subject to and controlled by section 397(2) of the code i.e. in relation to the interlocutory orders against which no revision lies?3. the code of criminal procedure, 1973, has brought about many chainges. one of the basic changes is the curtailment of revi monal jurisdiction. section 397(2) bars a revision against an interlocutory order.4. there is a difference of opinion between different judges of this court on the question whether section 397(2) operates as a bar to the entertainment of an application under section 482 of the code.5. there is also a sharp conflict of opinion between the different high courts. the high courts are equally divided......
Judgment:

A.P. Sen, Actg. C.J.

1. These four references by Kudal, J., raise a common question and, therefore, they are disposed of by this common order.

2. The question before the Division Bench is:

Whether the inherent powers of the High Court Under Section 482 of the Code of Criminal Procedure, 1973 are subject to and controlled by Section 397(2) of the Code i.e. in relation to the interlocutory orders against which no revision lies?

3. The Code of Criminal Procedure, 1973, has brought about many chainges. One of the basic changes is the curtailment of revi Monal jurisdiction. Section 397(2) bars a revision against an interlocutory order.

4. There is a difference of opinion between different Judges of this Court on the question whether Section 397(2) operates as a bar to the entertainment of an application Under Section 482 of the Code.

5. There is also a sharp conflict of opinion between the different High Courts. The High Courts are equally divided. There are two schools of thought prevalent. The first is that in case of interlocutory orders, the bar created by Sub-section (2) of Section 397 of the new Code, cannot be circumvented by having recourse to Section 482, The underlying principle for this view is that Section 482 of the new Code, which is analogous to Section 561-A of the Code of Criminal Procedure, 1898 does not apply to cases which are covered by specific provisions of the Code. The Advocates of this thought, reason that the new Code has made a clear departure from the old Code and has prohibited Interference by revision Courts with proceedings in inferior Courts at interlocutory stages. This school of thought is represented by the decisions of the High Courts of Bombay, Andhra Pradesh, Himachal Pradesh and Orissa viz., Changdeo Kisan v. Chindya, 1976 Cri LJ 1293 (Bom); Isaq Mahboob v. Vithalrao Nagorao 1976 Crl LJ 1856 (Bom), Budaraju Seshagiri Rao v. T. V. Sarma, 1976 Cri LJ 902 (Andh Pra); Sant Lai Nagrath v. Kishan Lai, 1976 Cri LJ 215 (Delhi); Amarnath Rula Ram v. Kanwar Joginder Singh, J&76 Cri LJ 394 (Him Pra) and Rajanikanta Meheta v. State ol Orissa, 1976 Cri LJ 1674 (Ori). In this Court, that view has been taken by J. P. Jain, J., in Har Prasad v. Radhey Lai, (ig75 Raj LW 305) and Sharma, J., in the State of Rajasthan v. Ramnarain [Jpadhyaya 1976 Raj LW 287 : 1977 Cri LJ NOC 199 (Raj).

6. In Changdeo Kisan v. Chindya, 1976 Cri LJ 1293 (Bom) (supra), a Division Bench of the Bombay High Court observed (at p. 1293) :

It is not proper to construe Section 482, which confers inherent jurisdiction on this Court, iii such a way as to nullify the legislative bar to the entertainment of revision applications against the interlocutory orders in criminal proceedings. The inherent powers Under Section 482 are conferred on this Court by the Code not to defeat the mandatory provisions contained elsewhere in the Code; but 'to make such orders as may be necessary to give effect to any order' under the Code 'or to prevent abuse of the process of the Court or otherwise to secure the ends of justice.

7. In Isaq Mahboob v. Vithalrao Nagorao, 1976 Cri LJ 1856 (Bom) (supra), another Division Bench of the same High Court, after referring to Section 482 (old Section 561-A) observed (at p. 1858) :

In the present scheme of codification end amendment of the law relating to Criminal procedure in the light of the introduction of Sub-section (2) of Section 397, it would not be unsafe to take a positive view that in so far as interlocutory orders are concerned, the remedial measure provided by Section 561-A of the old Code (Section 482 of the new Code) is rendered ineffective.

8. In Budaraju Seshagiri Rao v, T. V. Sarma, 1976 Cri LJ 902 (Andh Pra) (supra), a learned Single Judge of the Andhra Pradesh High Court observed (at p. 903) :

The new Code has made a clear departure from the old Code and has prohibited interference by revisional Courts with proceedings in inferior Courts at interlocutory stages. Realising this position the petitioners invoked the jurisdiction of the High Court Under Section 482, Criminal P. C. Section 482, Criminal P. C. merely preserves the inherent powers of the High Court.

He then continues.

It is well established that the inherent powers of the High Court cannot be invoked so as to do an act which would conflict with an express provision of law or other general principles of Criminal Jurisprudence. Therefore, the bar Under Section 397(2) cannot be got over by the invocation of the inherent powers of the High Court Under Section 482, Criminal P. C.

9. In Sant Lai Nagrath v. Krishan Lai 1976 Cri LJ 215 (Delhi) (supra), a learned Single Judge of the Delhi High Court also took the same view stating (at page 216):

A revision petition against such an order is clearly barred by Sub-section (2) of Section 397 of the new Code. This bar cannot be circumvented by having recourse to Section 482 of the new Code. It is now well settled that Section 482 does not apply to cases which are covered by specific provisions of the new Code.

10. To the same effect are the decisions of the learned Single Judge of the Himachal Pradesh High Court in Amarnath Rula Ram v. Kanwar Joginder Singh, 1976 Cri LJ 394 (Him Pra) (supra), and that of the Orissa High Court in Rajanikanta Meheta v. State of Orissa, 1976 Cri LJ 1674 (Ori) (supra) and of the two learned Single Judges of this Court in Har Prasad v. Radhey Lai, 1975 Raj LW 305 (supra) and State of Rajasthan v, Ramnarain Upadhyaya, 1977 Cri LJ NOC 199 (Raj) (supra).

11. With due deference to the learned Judges, there is no warrant for curtail ing the inherent powers of the High Court Under Section 482 in the manner that they have done. The decision must turn on the true construction of Section 482 of the Code which reads :

482. Saving of inherent powers of High Court.-Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

12. Section 482 (old Section 561-A) does not confer any new powers; it only provides that those powers which the Court already inherently possesses shall be preserved and is inserted lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Code. The inherent powers of the High Court preserved, by Section 482 are subject to certain well-settled limitations. They are to be exercised (1J to give effect to any order under the Code, or (2) to prevent abuse of the process of any Court, or (3) otherwise to secure the ends of justice. Any other view would render Section 482 wholly nugatory.

13. The provisions of Section 561-A which were identically the same as those of Section 482 have been construed by their Lordships of the Supreme Court on more occasions than one, the leading case being that of R. P. Kapur v. State of Punjab AIR 1960 SC 866 : 1960 Cri LJ 1239, wherein their Lordships have summarised some of the categories of cases where the inherent jurisdiction of the High Court to quash proceedings can and should be exercised, viz. (at p. 869):

(i) Where it manifestly appears that there is a legal bar against the institution or continuance of the criminal proceeding in respect of the offence alleged. Absence of the requisite sanction may, for instance, furnish cases under this category.

(ii) Where the allegations in the First Information Report or the complaint even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises, it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not.

(iii) Where the allegations made against the accused person do constitute an offence ialleged but there is either no legal evidence adduced in support of the case or the evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is a legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction Under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.

14. Once these conditions are fulfilled, the High Court has the power as well as the duty to interfere Under Section 482. The opening words of the section, 'nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court', clearly give an overriding effect to the provisions of Section 482 over those of Section 397(2). The two provisions relate to the exercise of two different jurisdictions and they operate on two different fields. While Section 397(2) bars the exercise of revisional jurisdiction in relation to interlocutory orders, Section 482 relates to the exercise of the inherent jurisdiction to give effect to any order under the Code, or to prevent abuse of the process of the Court or to secure the ends of justice. These are independent an separate powers and the two jurisdictions do not overlap. It is, therefore, wrong to suggest that the exercise of inherent powers Under Section 482 would be tantamount to circumventing the bar created by Section 397(2).

15. The decision in Kumar Singh v. Emperor AIR 1946 PC 169 : 47 Cri LJ 933 is clearly distinguishable. There, their Lordships were concerned with Clause (26) of the Special Criminal Courts Ordinance, 1942 which expressly barred the jurisdiction of all Courts. In that context, their Lordships observed that no Court can claim inherent jurisdiction to exercise powers expressly taken away by legislation. That apart, the Special Court was not a Court subordinate to the High Court.

16. The better view, and which is in consonance with reason and justice, is that represented by the decisions of the Calcutta, Madras, Allahabad and Kerala High Courts and that of a learned Single Judge of this Court (M. L. Jain, J.) in Biswanath Agarwalla v. The State (1976) Cri LJ 1901 (Cal); Devi Ram v. State of Himachal Pradesh (1977) Cri LJ (N) 109; Sarjoo v. Babadin. 1976 Cri LJ 1562 (All); President, Hindustan Motor, Ltd v. K. M. Joseph, 1976 Ker LT 36 and Malam Singh v. State of Rajasthan 1976 Raj LW 523 : 1977 Cri LJ 730. Incidentally, we may mention that Sharma, J. in Guman Singh v. State of Rajasthan 1976 Raj LW 507 : 1977 Cri LJ NOC 239 (Raj) appears to have veered round to the same view.

17. In Biswanath Agarwalla v. State, 1976 Cri LJ 1901 (Cal) (supra), a Division Bench of the Calcutta High Court after referring to the decisions of their Lordships of the Supreme Court in Krishnamurty Iyer v. State of Madras : AIR1954SC406 ; R P. Kapur v. State of Punjab 1960 Cri LJ 1239 (SC) (supra), Delhi Development Authority v. Lila Bhagat. : AIR1975SC495 and Supdt. and Remembrancer, W, B. v. Mohan Singh : 1975CriLJ812 observed:

The aforesaid cases, no doubt, showed that in appropriate cases the High Court can interfere with matters like the framing of the charges under its revisional or inherent powers but those cases were decided on the basis of the old Criminal Procedure Code of 1898. In the old Code there was no bar to the exercise of revisional powers in case of interlocutory order.

The imposition of the bar changes the context of use of inherent power of the Court in this respect. It is the inadequacy inherent in the Code which falls to provide for all contingencies which has called for the creation of and saving the inherent power of the Court to act ex debito justitiae. The same also explains why this inherent power is not to be exercised in matters specially covered by the other provisions of the Code. If such is the nature of the power should it be exercised in fields such as interlocutory orders which have been forbidden for the use of revisional powers by the Court Section 397(2) is a bar which apparently fetters the revisional powers of the Court only.

There is nothing in Section 482, Criminal Procedure Code that it is to be read subject to Section 397(2). But even then should the Court, when it is unable to exercise its revisional powers in case of interlocutory orders, take recourse to its inherent powers in that field Indiscriminate or frequent use of the inherent powers in that fashion would obviously render nugatory the bar put by Section 397(2). It would be doing indirectly what the Court is directly forbidden to do Under Section 397(2). While we would not like to fetter or circumscribe the ambit of the inherent powers of this Court which is a mighty reservoir to be drawn upon by the litigants in cases where the channels of other legal remedies under the Code are dried up at the same time it would be inadvisable to expand its ambit possibly except in rare cases to spheres specifically sought to be excluded by the Code. It would be risky to attempt formulations of principles to be followed in this regard. Circumstances may arise where a failure to exercise the inherent powers in case of interlocutory orders may occasion great hardship. To inhibit or carve (sic) or deny the Court's power to provide remedies on such occasion may cause injustice for the removal of which alone the Court exists.

18. We are in respectful agreement with these observations.

19. We are fortified in that view by the recent decision of their Lordships in State of Karnataka v. L. Munniswamy 1977 Cri LR (SC) 188 : 1977 Cri LJ 1125 to the effect (at p. 1128):

In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding ought to be quashed.

X X X XThe ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction.

20. To sum up: The powers Under Section 482 of the Code of Criminal Procedure, 1973 can be exercised in relation to interlocutory orders, once the conditions mentioned in Section 482 are fulfilled and exercise of such powers is not limited or controlled by the bar created by Section 397(2) of the Code, inasmuch as the two powers are separate and dis-, tinct and operate in their respective fields. It is needless to stress that the inherent powers Under Section 482 of the Code have to be exercised with due circumspection and in very rare cases. The inherent powers can be exercised only for any of the three purposes mentioned. They cannot be invoked in respect of any matter covered by the specific provisions of the Code, Nor can they be exercised to override an express prohibition of law prohibiting interference or if their exercise would be inconsistent with any of the specific provisions of the Code. The reference is answered accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //