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VipIn Gupta and anr. Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in2009CriLJ3747; RLW2009(4)Raj3399
AppellantVipIn Gupta and anr.
RespondentState of Rajasthan and anr.
Cases ReferredMst. Simrikkia v. Smt. Dolley Mukherjee
Excerpt:
.....to the revisional court to decide the matter on merits, in accordance with law. 12. these principles of law are well settled since long. it is well known that inherent powers cannot be invoked where the legislature expressly deals with the matter. and, the matter with which the learned judge was concerned in the present proceedings is directly covered by section 215. therefore, in our opinion the learned judge was clearly in error in allowing his inherent power to be invoked under section 561-a and in setting-aside the order of commitment......which are directly covered by the specific provision of the code; and, the matter with which the learned judge was concerned in the present proceedings is directly covered by section 215. therefore, in our opinion the learned judge was clearly in error in allowing his inherent power to be invoked under section 561-a and in setting-aside the order of commitment.in the case of r.p. kapur v. state of punjab : air 1960 sc 866, also the apex court expressed that inherent powers cannot be exercised in respect of matters which are covered by other provisions of code of criminal procedure.14. in the case of palaniappa gounder v. state of t.n. : air 1977 sc 1323 : 1977 cri lj 992, the hon'ble supreme court was considering as to whether the high court had power to pass an order of compensation.....
Judgment:
ORDER

Raghuvendra S. Rathore, J.

1. This Misc. Petition has been filed by the accused petitioners challenging the order of cognizance passed by the learned Magistrate on 4th April, 2006. Precisely speaking, the prayer made by the petitioners is as under:

Hence, prayed that the Hon'ble Court be pleased to allow this petition and be further pleased to quash and set aside impugned order dated 4-4-2006 passed by learned Additional Chief Judicial Magistrate No. 2, Jaipur District, Jaipur in Criminal Case No. 92/2006.....

2. The learned Counsel for the petitioners has, at the outset, submitted that the order of taking cognizance passed by the learned Magistrate on 4th April, 2006 is a final order which is revisable. Further, he has submitted that there is no dispute about this proposition. However, he has advanced his arguments that the petitioners can choose their forum and instead of filing a revision petition before the appropriate Court, they can approach the High Court under its inherent powers as envisaged under Section 482, Cr. P.C. In this light, he has also submitted that the alternative forum of revision would not bar the petitioners from approaching this Court and the said alternative remedy would not be applicable here in the instant case. However, he has submitted that the inherent powers of the High Court are special in nature which are to be exercised in case of there being abuse of the process of the Court and to secure the ends of justice. This argument has been further advanced by the counsel for the petitioners that in view of the opening words of Section 482, Cr. P.C. the powers of the High Court cannot be circumscribed and bound down. He has also submitted that if the matter is to be decided by the revisional Court, it would amount to recalling/reviewing the order of admission. In support of his submissions, the learned Counsel for the petitioners has relied upon the cases in; (i) Punjab National Bank v. Surendra Prasad Sinha : AIR 1992 SC 1815 : 1992 Cri LJ 2916; (ii) Pepsi Foods Ltd. v. Special Judicial Magistrate : AIR 1998 SC 128 : 1998 Cri LJ 1; (iii) Ashok Chaturvedi v. Shitul H. Chanchani : AIR 1998 SC 2796 : 1996 Cri LJ 4091; (iv) Suresh v. Mahadevappa Shivappa Danannava : (2005) 3 SCC 670 : AIR 2005 SC 1047; (v) Ram Biraji Devi v. Umesh Kumar Singh : (2006) 6 SCC 669 : 2006 Cri LJ 2782; (vi) Central Bureau of Investigation v. State of Gujarat : (2007) 6 SCC 156 : AIR 2007 SC 2522; (vii) B. Suresh Yadav v. Sharifa Bee : (2007) 13 SCC 107 : 2008 Cri LJ 431.

3. On the other hand, the learned Counsel for the complainant respondent No. 2 has contended that in view of the fact that against the, impugned order of cognizance passed by the learned Magistrate, which has been challenged in this Misc. Petition, revision before the appropriate Court lies in the matter and this Court should not interfere in the same while exercising powers under Section, 482, Cr. P.C. In support of his submissions, he relies upon the judgment of a Division Bench of this Court in Sessions Judge Sawai Madhopur v. Dashrath Singh, RLW 1996 (3) (Raj) 613, wherein while answering a reference under Section 495(2) Cr. P.C. it was held that an order of cognizance is a final order in view of the principle laid down by the Apex Court in catena of judgments which have been referred therein and that appropriate revisional Court should hear the matter. Therefore, the learned Division Bench had ordered as under:

This reference is answered accordingly and in Reference No. 4/91, the learned Sessions Judge, Sawal Madhopur is. directed to decide Criminal Revision Petition No. 34/ 89 filed before him expeditiously keeping in view the aforementioned observations.

In S.B. Cr. Misc. Petition No. 2/94 the learned Sessions Judge, Jhunjhunu by his order dated 12-10-93 has simply dismissed the revision petition No. 134/87. filed by the accused persons holding that the impugned order was being interlocutory order, the revision petition against it was legally not maintainable and thus has not decided the revision petition on merits. We, therefore, allow Cr. Misc. Petition No. 2/94 and set aside the impugned order and remit the case to the learned Sessions Judge, Jhunjhunu with the direction that he should, decide Cr. Revision Petition No. 134/87 on merits in accordance with law.

4. The learned Counsel for the, respondent has further submitted that as per the provisions of the Code of Criminal Procedure, there is a remedy available, to the petitioners and in such a situation, the inherent powers of this Court are not to be invoked where there is an express provision. In other words, he has submitted that the express provision in the Code cannot be cut down by invoking inherent powers of the High Court under Section 482, Cr. P,C, In support of his submissions, he has relied upon the cases in; (i) Amar Nath v, State of Haryana : AIR 1977 SC 2185 : 1977 Cri LJ 1981; (ii) Palaniappa Gounder v. State of Tamil Nadu : (1977) 2 SCC 634 : 1977 Cri LJ 997; (iii) State of A. P. v. Golconda Linga Swamy : (2004) 6 SCC 522 : 2004 Cri LJ 3845 : (iv) Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS : (2006) 7 SCC 188 : 2006 Cri LJ 4050; and (v) Central Bureau of Investigation v. K.M. Sharan : (2008) 4 SCC 471 : 2008 Cri LJ 2027.

5. While advancing the arguments further, the learned Counsel for the respondent has submitted that there has been reasons why the inherent powers were given to the High Court and for that purpose, he has placed reliance on the cases in ; (i) Mary Angel v. State of T.N. : (1999) 5 SCC 209 : 1999 Cri LJ 3513; (ii) State of M.P. v. Awadh Kishore Gupta : (2004) 1 SCC 691 : 2004 Cri LJ 598; (iii) Zandu Pharmaceutical Works Ltd. v. Mohd. Sharaful Haque : (2005) 1 SCC 122 : 2005 Cri LJ 92; and (iv) Minu Kumari v. State of Bihar : (2006) 4 SCC 359 : 2006 Cri LJ 2468.

6. In the last, the learned Counsel for the respondent has placed reliance on the case of State of Karnataka v. M. Devendrappa, reported in : (2002) 3 SCC 89 : 2002 Cri LJ 998 and submitted that it is only in a complaint case that the intention of the complainant and other like factors are to be taken into consideration but once the complaint has been registered as a First Information Report and the statutory agency has come into action and filed a challan, then it is the material collected during the investigation which is to be looked into by the Magistrate while passing the order of cognizance.

7. I have given my thoughtful consideration to the submisions made by the rival parties and also carefully perused the case law cited by them.

8. The controversy in the present case is within a narrow compass as it is not under dispute between the parties that impugned order of cognizance dated 4th April, 2006 passed by learned Additional Chief Judicial Magistrate No. 2, Jaipur District Judge is a final order and as such the same is revisable. When there had been divergent views of two Single Benches of this Court, a reference was m3ade by the learned Sessions Judge, Sawai Madhopur, under Section 395(2) Cr. PC. to have an authoritative decision of this Court. It was thereafter, that the matter was referred to the Division Bench of this Court Dashrath Singh (supra) and while considering the terms of reference, the learned Division Bench had also called upon the Registrar (Classification) to place before it other petitions involving the same question. Consequently, another petition in the name of Ganni Khan v. State of Raj. S.B. Cri. Misc. Petition No. 2/94 filed under Section 482, Cr. P.C. was also tagged with the Reference Petition No. 4/91. In that case, after cognizance had been taken by the Magistrate, the accused persons had challenged the same by way of revision petition before the Sessions Judge, Jhunjhunu who passed the order dated 12-11-1993 and held that the revision petition was not maintainable and accordingly, the same was dismissed. Since the matter involved similar question, the petition of Ganni Khan was also tapped with the reference petition. The learned Division Bench has answered the reference holding that order of cognizance is a final order and revision petition is maintainable. Accordingly, the learned Sessions Judge, Sawai Madhopur was directed to decide the criminal petition No. 34/89 pending before him expeditiously. So far as Cr. Misc. Petn. No. 2/94, against the order of learned Sessions Judge, Jhunjhunu dated 12th October, 1993 was concerned, the said petition was therefore allowed in view of the answer to the reference and the impugned order passed by the learned Sessions Judge Jhunjhunu was set aside and the matter was remitted to him with the direction that the criminal revision petition No. 34/98 be decided on merits, in accordance with law.

9. The aforesaid answer to the reference by the Division Bench of this Court clearly lays down that a revision petition against the order of cognizance is maintainable and when the 482 petition was filed before the High Court against the order of Sessions Judge, Jhunjhunu who had rejected the revision petition filed before it as not maintainable, the said order was quashed and set aside and while remitting the matter, directions were issued to the revisional Court to decide the matter on merits, in accordance with law.

10. So far as the argument advanced on behalf of the petitioners that they had a right to choose their forum by way of filing petition before this Court under Section 482, Cr. P.C. and looking to the powers given therein to the High Court, the same can be decided as the said powers cannot be restricted, I am of the considered opinion, that it is an undisputed fact in this case that the order impugned is an order of cognizance which is revisable under Section 397, Cr. P.C. It is a settled principle of law that when there is a specific bar or express provision given in the Code of Criminal Procedure then in such a situation, it may not be proper for this Court to exercise its inherent powers under Section 482, Cr. P.C. This view is supported by the principle laid down in Amar Nath v. State of Harayana : AIR 1977 SC 2185 : 1977 Cri. LJ 1981 wherein it has been stated:

It is settled that the inherent powers of the Court can ordinary be exercised when there is no express bar on the subject-matter.

11. It goes without saying that the inherent powers of this Court are to be exercised sparingly and only in extraordinary circumstances. One such situation is when there is no provision in the Code for redress of the grievance. The powers possessed by the High Court under Section 482, Cr. P.C. are wide enough to make such orders as may be necessary, firstly to give effect to any order under the Code. Secondly, or to prevent abuse of the process of any Court. Thirdly, or otherwise to secure the ends of justice. When a Court has the power to make an order then it must have power to carry it out, otherwise the passing of the same is useless. If such power is not expressly given then it can be exercised by the High Court under its inherent powers given in the Code. However, while exercising such powers, the High Court has to be careful to see that the order is in accordance to the principles of criminal jurisprudence and not to be in conflict of it or with the intention of the legislature, as indicatd in statutory provisions. The inherent powers are to be exercised only where such exercise is justified by the tests specifically laid down under Section 482, Cr. P.C. The words, 'the ends of justice' and abuse of the process of the Court must be construed with due regard to the rest of the provisions of the Code. The inherent power given in the Code is also to empower the High Court to pass appropriate orders for the purpose of justice when there is omission in the Code, in that regard.

12. These principles of law are well settled since long. A Division Bench of Lahore High Court, had, in the case of Empower v. Sukh Dev AIR 1929 Lahore 705, while considering the inherent jurisdiction of the High Court under Section 561-A of the old Code, which was verbatim to Section 482 of the new Code, held as under:

The inherent jurisdiction of the Court, which receives recognition in Section . 561-A, Criminal P.C. cannot be invoked for the purpose of doing an act which would conflict with any of the provisions of the law or the general principles of criminal jurisprudence. The rule of law is firmly established that, when a statute confers upon the Court a specific power the Court cannot, by relying upon its. inherent jurisdiction, extend the scope of that power.

Similarly, in the case of Vishnu Ghanshyam v. Emperor AIR 1941 Nagpur 97, the view expressed was as follows:

It is urged that the High Court has power under Section 561-A Criminal P.C. But I am clear that section can have no application to a matter of this kind. That section confers no fresh or new or additional powers on the High Court. It merely states that the existing powers are not circumscribed by anything in the Code of Criminal Procedure except insofar as the sections expressly dealing with them do so. It is well known that inherent powers cannot be invoked where the legislature expressly deals with the matter. It has dealt with the matter in this case. It has stated that no proceeding purporting to be taken under the Act shall be called in question except in one particular matter and in one particular way. That is express and absolute. No general section conferring inherent power can be invoked in the face of that.

13. The Hon'ble Supreme Court in the case of Khushi Ram v. Hashim AIR 1959 SC 542 observed:

It is unnecessary to emphasis that the inherent power of the High Court under Section 561-A cannot be invoked in regard to matters which are directly covered by the specific provision of the Code; and, the matter with which the learned Judge was concerned in the present proceedings is directly covered by Section 215. Therefore, in our opinion the learned Judge was clearly in error in allowing his inherent power to be invoked under Section 561-A and in setting-aside the order of commitment.

In the case of R.P. Kapur v. State of Punjab : AIR 1960 SC 866, also the Apex Court expressed that inherent powers cannot be exercised in respect of matters which are covered by other provisions of Code of Criminal Procedure.

14. In the case of Palaniappa Gounder v. State of T.N. : AIR 1977 SC 1323 : 1977 Cri LJ 992, the Hon'ble Supreme Court was considering as to whether the High Court had power to pass an order of compensation in exercise of inherent powers when specific provision is contained in Section 357 Cr.P.C. It was held thus:

A provision which saves the inherent powers of a Court cannot over-ride any express provision contained in the statute which saves that power. This is put in another form by saying that it there is an express provision in a statute governing a particular subject matter 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 advised to govern the particular subject matter. From this it will be clear that the application made by the heirs of the deceased for compensation could not have been made under Section 482 since Section 357 expressly confers power on the Court to pass an order for payment of compensation in the circumstances mentioned therein.

15. In a later decision, in the case of Mst. Simrikkia v. Smt. Dolley Mukherjee : AIR 1990 SC 1605 : 1990 Cri LJ 1599, the Hon'ble Supreme Court held:

The inherent powers, however, as such are controlled by principle and precedent as are its express powers by statute. If a matter is covered by an express letter of law, the Court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.

16. In view of the above decisions and the principle laid down therein, I am of the considered opinion that when there is a remedy available under the provisions of the Code then an accused has no right to invoke the inherent powers of this Court on the ground that the provision for revision would not bar him from approaching the High Court under Section 482 Cr.P.C.

17. It is noteworthy that the learned Counsel for the petitioners himself, during the course of arguments, had submitted that this Misc. Petition may be converted into a revision petition and decided by the High Court. In my considered view, when this Misc. Petition is to be converted into a revision petition, then there is no just reason as to why remedy provided under Section 397 of the Code of Criminal Procedure, should not be invoked first, instead of coming straight to the High Court. It would in no manner prejudice the case of the petitioners even if the petition had been admitted.

18. From the aforesaid discussions and the prayer made in this Misc. Petition, I am of the view that this Misc. Petition is not maintainable and the petitioners have a remedy under the revision powers, as envisaged under Section 397 of the Code against the order dated 4-4-06 passed by the learned Magistrate.

19. Consequently, this Misc. Petition is disposed of with the direction that the same be transferred to the Sessions Judge, Jaipur City, Jaipur who shall treat the same under Section 397 Cr.P.C, and proceed to decide it on merits, in accordance with law.


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