Judgment 1. THESE are three petitions filed on behalf of the respective petitioners in criminal Revision Cases Nos. 185, 198 and 228 of 1970, for a refund of the excess court fees paid at the time of the filing of the revisional applications under section 439 of the Code of criminal Procedure and are taken up for disposal together as these involve the same points. 2. THE facts leading on to the filing of these petitions may be put in a short compass. The petitioners filed three revisional applications in this court under section 439 of the Code of criminal Procedure for setting aside the impugned orders as mentioned therein and a court-fee of Rs. 5/- was paid on each of these applications by the learned advocate Mrs. Mukti Moitra. Three Rules were issued upon the said revisional applications, being Criminal revision Cases Nos. 185, 198 and 228 of 1970. Two of these Rules, viz. Criminal Revision Cases Nos. 228 and 185 of 1970 have since been disposed of on the 5th May and the 24th July, 1970 respectively. These three petitions were filed by the learned Advocate before the Registrar, High Court, Appellate side, Calcutta on the 18th April, 1970 for a refund of the excess court-fees paid on the ground inter alia that the court-fee payable on such revisional applications under section 439 of the code of Criminal Procedure is only Rs. 2/- each and that the payment of the excess court-fees was due to an erroneous view taken by the department at the time of the filing. It was inter alia submitted in the petitions for refund that the proper court-fee payable on such revisional applications is Rs.2/- only, inasmuch as under section 50 (2) of the West Bengal Act X of 1970 all suits and proceedings instituted before the commencement of the West Bengal Court-Fees Ordinance, 1969, and all proceedings by way of appeal, revision or otherwise arising therefrom whether instituted before or after such commencement shall, notwithstanding the repeal of the Court-Fees Act, 1870 be governed by the provisions of the said Act, and the Rules made thereunder whereby a court-fee of Rs. 2. 2. 00 only is to be paid on such revisional application; that in any event, even under the new Act X of 1970 as enjoined in item No. l (k) (iii) of schedule II the amount payable by way of court-fee on a criminal motion would be Rs. 2/- only; that because of the insistence of the department a court-fee of Rs. 5. 00 on each application had to be paid; and that the same being clearly bad in law, the excess amount paid should be directed to be refunded. Because of the importance of the point raised, the office placed before this bench the said three applications for refund of court-fees along with the reports thereon by the Registrar, Appellate side and the Stamp Reporter, for such directions or orders as considered fit and proper. The applications thereafter were placed before the Bench for necessary orders and appeared in the list for hearing. The pith and substance of Mrs. Moitra's contention is that under section 50 (2) of the West Bengal Act x of 1970, the court-fees payable for the three revisional applications will be the same as under the provisions of the repealed Act viz., the Court-Fees Act vii of 1870 and under the latter Act, the Court-fee payable on such applications is Rs. 2/-only. Mrs. Moitra further urged that even under the new act, viz., the West Bengal Act X of 1970, the court-fee payable on such revisional application under section 439 of the Code of Criminal Procedure will be the same, in view of the provisions of item No. 1 (k) (iii) of schedule II of the said Act and that being so, the amount of court-fees realised in excess of the sum legally payable, should be refunded to the party in the interests of justice. 3. THE point involved is a material one being one of first impression and there appears to be no precedent for the same. The point ultimately resolves itself into two heads firstly as to what is the proper court-fee payable on a revisional application under section 439 of the Code of Criminal Procedure and secondly, if any excess amount is found to have been paid, on that count, whether there is any provision in law for refunding the said excess amount. 4. THE answer to the first head can be put in a short compass. 4. THE answer to the first head can be put in a short compass. Item No. 1 (d) (i) of the Court-Fees Act (Act VII of 1870), 1870 lays down that the proper court-fee payable on an application or petition presented to the High Court under section 115 of the Code of Civil procedure for revision of an order is Rs.5. 00 "when the value of the suit to which the order relates, does not exceed Rs. 1,000/-; and Rs. 10/- "when the value of the suit exceeds Rs, 1,000/ -. Item No. 1 (d) (ii) of the said schedule enjoins a court-fee of Rs. 2. 00 only payable on such applications "when presented to the High Court otherwise than under that section". This clearly refers to, amongst others, a criminal revisional application under section 439 of the code of Criminal Procedure and provides that a court fee of Rs. 2/- only is payable on the same. The repeal of the said Act subsequently need not raise a cloud over the said point. Act vii of 1870 was repealed by the West Bengal Court-Fees (West Bengal ordinance No. XVII of 1969), 1969 on 14.1.70 followed by the West Bengal court-Fees Act (West Bengal Act X of 1970), 1970 on 26. 2. 70. Section 50 (2), the saving Clause in the said Ordinance, provides as follows : "all suits and proceedings instituted before the commencement of this Ordinance and all proceedings by way of appeal, revision or otherwise arising therefrom whether instituted before or after such commencement shall, notwithstanding the repeal of the Court-Fees Act, 1870, be governed by the provisions of the said Act and the Rules made thereunder". Item No. 1 (k) (iii) of schedule II of the said Ordinance enjoins that a court-fee of Rs. 2/- only is to be paid "in any other case not otherwise provided for by this Ordinance", or in other words on a criminal revisional application under section 439 of the code of Criminal Procedure. The position again is not in any way different under the West Bengal Court-Fees Act (West Bengal Act X of 1970), 1970. 2/- only is to be paid "in any other case not otherwise provided for by this Ordinance", or in other words on a criminal revisional application under section 439 of the code of Criminal Procedure. The position again is not in any way different under the West Bengal Court-Fees Act (West Bengal Act X of 1970), 1970. It is therefore pertinent to refer to the provisions of the saving section 50 (2) of the said Act, which is as follows : "all suits and proceedings instituted before the commencement of the West Bengal Court-Fees Ordinance 1969, and all proceedings by way of appeal, revision or otherwise arising therefrom whether instituted before or after such commencement shall, notwithstanding the repeal of the Court- Fees Act, 1870 be governed by the provisions of the said Act and the Rules made thereunder". Item No. 1 (k) (iii)of schedule II of the said West Bengal act X of 1970 provides for a court-fee of Rs. 2/- only "in any other cases not otherwise provided for by this Act" or in other words on an application not covered by Items (i) and (ii) of item no. 1 (k) of the said schedule, the court-fee payable on a criminal motion, even under the new Act is Rs. 2.00 only. The provisions of the new Act, however, would not apply but the court-fee payable in such cases under either the repealed Act or the new Act is the same the provisions of the saving section 50 (2) of the West Bengal Act X of 1970 make it abundantly clear that the provisions of the repealed Act VII of 1870 and the Rules framed thereunder shall apply to the three cases "instituted before the commencement of the west Bengal Court Fees Ordinance, 1969" and under the aforesaid provisions the court-fee payable on such a criminal revisional application is Rs. 2/-only. Any additional amount required to be paid on such applications would be de hors the statute and therefore not legal and proper. I hold accordingly that the court-fee payable in a revisional application under section 439 of the Code of Criminal Procedure is Rs. 2/- only and so there has been an excess amount of court-fee paid, to the extent of Rs. 3/- on each of the three revisional applications filed in this court. I hold accordingly that the court-fee payable in a revisional application under section 439 of the Code of Criminal Procedure is Rs. 2/- only and so there has been an excess amount of court-fee paid, to the extent of Rs. 3/- on each of the three revisional applications filed in this court. The prayer made on behalf of the three applicants in these petitions, for a refund of the excess amount of court-fees paid, is therefore justified on principle. The second branch of the point therefore crops up for consideration as to whether there is any provision in law for refunding the excess court-fees realised or to be more precise as to whether there is any provision, specific or otherwise, in the Court-Fees Act to warrant a refund of the excess amount of court-fees paid on a criminal revisional application filed under section 439 of the Code of Criminal Procedure. The point involved is an important one, not covered by any direct precedent. The Court-Fees Act (Act VII of 1870), 1870, or the West Bengal Ordinance no. XVII of 1969 or even the West Bengal Court-Fees Act (West Bengal act No. X of 1970), 1970 appears to be silent on the point. The powers of the court to direct a refund of the court-fees paid are provided for in sections 13 to 15 of the Court Fees Act, 1870, which has since been repealed; in sections 18 to 20 of the West Bengal ordinance No, XVII of 1969; and in sections 18 to 20 of the new Act viz., the West Bengal Act X of 1970; but the same provides for a refund of such court-fees paid on a Memorandum of appeal or on an application for review of judgment and does not cover a case of an application in revision under section 489 of the Code of Criminal procedure. Does it therefore mean that the court is powerless to direct a refund of excess court-fees paid on a revisional application under section 439 of the Code of Criminal Procedure, either through mistake by the party or realised at the instance of the department, although it finds that the excess amount so realised has been unwarranted, untenable and de hors the statute ? the answer is short and simple ; it does not. the answer is short and simple ; it does not. A reference in this context may be made to the case of (1) Hukum chand Boid v. Kamalanand Singh, reported in 1906 I. L. R. 33 Cal. 927 decided by Sir John Woodroffe and Sir Asutosh mookerjee, wherein Sir John Woodroffe delivering the judgment of the court observed at page 930 that "for my part I am always slow to believe that the court's powers are unequal to its desire to order that which it believes to be just". I respectfully agree with the said observations and I hold that the powers of the court cannot be unequal to its desire to rectify ex debito justitae an apparent mistake resulting in injustice, law is good but justice is better and as was observed by Lord Atkins in the case of (2) Rashbehari Lal v. king emperor reported in 16 Indian Appeals page 354 at page 361 that "finality is a good thing, but justice is better". In this context it is also pertinent to refer to the observations of Sir John Woodruff in the case of (3) Lekhraj Ram v. Debi Prosad reported in (1908) 12 C.W.N. 678 at page 680 that "i am of opinion that there is no form of judicial injustice which the court if need be, cannot reach. " The High Court is the palladium of justice and there can not be any clog on the wheels; the stream of justice must flow unfettered and untrammeled. 5. THE cloud, if any, on the inherent powers of the court to do justice in a fit and proper case, not covered by the specific provisions of the statute law, has been lifted by the addition of section 151 to the Code of Civil Procedure of 1908 and of section 561a to the Code of Criminal Procedure by act 18 of 1923. These provisions do not really incorporate any fresh powers for the court but are only a reiteration of the fact that the court has already such inherent powers. As was observed in the case of (4) Manohar Lal chopra, appellant v. Rai Bahadur Rao raja Seth Hiralal, Respondent reported in A.I.R. 1962 S. C. page 527, by Mr. These provisions do not really incorporate any fresh powers for the court but are only a reiteration of the fact that the court has already such inherent powers. As was observed in the case of (4) Manohar Lal chopra, appellant v. Rai Bahadur Rao raja Seth Hiralal, Respondent reported in A.I.R. 1962 S. C. page 527, by Mr. Justice Raghubar Dayal, delivering the majority judgment, at page 534 that "the inherent power has not been conferred upon the court; it is a power inherent in the court by virtue of its duty to do justice between the parties before it". A reference may also be made to the case of (5) Nanda Kishore singh v. Ram Golam Saha reported in i. L. R. 40 Calcutta page 955 wherein sir Asutosh Mookerjee observed at page 959 that "the existence of this inherent power to do justice has been recognized from earliest times. . . . . . Its exercise ex debito justitiae to do that real and substantial justice for the administration of which alone the court exists". The principles on which the sections reiterating the inherent powers of the court are based, were acted upon in many earlier decisions and in cases where the ordinary rules of procedure resulted in injustice and there was no other remedy, the same could be "broken for the ends of justice". It is pertinent in this context to refer to the principles laid down in Domat's Civil law, Chapter 12, Section 17, page 88 that "since laws are generally rules, they cannot regulate for all time to come so as to make express provision against all inconveniences which are infinite in number so that their disposition shall express all the cases that may possibly happen". Chief Justice sir Barnes Peacock approved of the said principles in the case of (6) Hurro chunder Roy Chowdhury and ors. (defendants) appellants v. Soorodhonee debia (plaintiff), respondent reported in IX Weekly Reporter page 402 and observed at page 406 that "it is the duty of the judges to apply the laws not only to what appears to be regulated by their express disposition but to all the cases to which a just application of them may be made, and which appear to be comprehended either within the express sense of the law or within the consequences that may be gathered from it". A procedural code, however exhaustive cannot expressly provide, for all time to come, against all the cases, for points that may possibly arise and in order that justice may not suffer it is necessary that every court must in fit and proper cases exercise its inherent powers to secure the ends of justice or for the purpose of carrying out the other provisions of the Code. The incorporation of section 561a of the cr. P. C. assumes that the Code is not exhaustive although it is so with regard to matters specially dealt with by it. As was observed by Lord Macnaughton in the case of (7) Narendra Nath Sircar and anr. plaintiffs v. Kamal Basini Dasi, defendant, reported in I. L. R. XXIII calcutta page 563 (P. C.) at page 572 that "the purpose of such a statute surely was that on any points specifically dealt with by it the law should be ascertained by interpreting the language used". But in cases where the statute is not exhaustive and injustice is done, the inherent powers of the court must be exercised to "do that real and substantial justice for the administration of which alone the court exists. The principles laid down in the case of (8) Alexander Rodger, Charles Carnie and Richard James Gilman, appellants and the Compteir D' escompte De Paris and the Chartered Bank of India, australia and China, respondents reported in the Law Reports, Privy Council appeals, Vol. III (1869-71) page 465 are also pertinent in this context. It was observed by Lord Cairns at page 475 that "one of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors. . . . . . . . It is the duty of the aggregate of those tribunals, if I may use the expression, to take care that no act of the court in the course of the whole of the proceedings does an injury to the suitors in the court". . . . . . . . It is the duty of the aggregate of those tribunals, if I may use the expression, to take care that no act of the court in the course of the whole of the proceedings does an injury to the suitors in the court". In the context of section 151 of the code of Civil Procedure, the Supreme court also observed in the case of (4) Manohar Lal Chopra, appellant v. Rai Bahadur Rao Raja Seth Hiralal, respondent reported in A.I.R. 1962 S. C. page 527 that "the section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. I agree with the principles laid down in the aforesaid decisions and I hold that the court's powers are not unequal "to its desire to order that which it believes to be just and that in such cases of blatant injustice, not provided for by the specific provisions of the court Fees Act, the inherent powers of this court as reiterated in section 561a of the Code of Criminal Procedure are to be invoked to secure the ends of justice. 6. THE point that now abides consideration is whether there is any precedent for such a refund of the excess amount of court-fees in cases which are not covered by any of the provisions relating to refund, contained in the Court Fees Act. A reference therefore may be made to some cases where such refunds not covered by the specific provisions of the Court-Fees act have been made, in exercise of the inherent powers of this court under section 151 of the Code of Civil Procedure. In the case of (9) Harihar guru v. Ananda Mahanty reported in I. L. R. XL Cal. page 365, Sir Asutosh mookerjee and Mr. Justice Beachcroft directed the Taxing Officer to issue the necessary certificate to enable the appellant to obtain a refund of the excess court-fee from the Revenue authority. In that case the appellant's agent by inadvertence had overpaid the court-fee on memorandum of appeal. page 365, Sir Asutosh mookerjee and Mr. Justice Beachcroft directed the Taxing Officer to issue the necessary certificate to enable the appellant to obtain a refund of the excess court-fee from the Revenue authority. In that case the appellant's agent by inadvertence had overpaid the court-fee on memorandum of appeal. Their Lordships relied on the authority of the case of (10) In the matter of grant reported in (1870) 14 Weekly reporter at page 47. Their Lordships observed as follows at page 366 that "the sum of Rs. 235/- has therefore been overpaid as court-fees; let the taxing Officer issue the necessary certificate to enable the appellant to apply to the Revenue authorities to obtain a refund of the excess court-fee". The next case on the point is (11) In the matter of Kumud Nath Das saha and ors., petitioners reported in 39. C.W.N. page 1074 decided by Mr. Justice D. N. Mitter and Mr. Justice B. N. Rau. Mr. Justice Mitter delivering the judgment of the court relied on the case of (9) Harihar guru v. Ananda Mahanty reported in I.L.R. XL Cal. 365 and observed that "it is admitted that the present case falls outside the provisions of those sections. From the authorities of different High Courts it appears clear that the High Court should interfere under section 151 in such a case as this, where obvious injustice has been done". It was ultimately observed that "we direct that the Taxing Officer who is the Registrar on the Appellate side of this court may issue the necessary certificate to the petitioners so that they may get a refund of Rs.585/- which have been paid in excess by them in court-fees". A reference may be made in this context to the case of (12) Abdul Majid Mridha-Defendant-Appellant v. Amina Khatun d/o Abbas mridha Plaintiff Respondent, reported in A.I.R. 1942 Calcutta page 539 wherein Mr. Justice C. C. Biswas observed at page 542 that "there is no express provision in the Court-fees Act which entitles a party to a refund, as a matter of course, in a case which does not come either under S. 14 or S. 15. But apart from these provisions, the court has in proper eases made such an order for refund where it has found that the court-fee had been paid under an order subsequently held to be wrong". But apart from these provisions, the court has in proper eases made such an order for refund where it has found that the court-fee had been paid under an order subsequently held to be wrong". Ultimately the plaintiff's prayer was allowed and it was directed "that the plaintiff be granted a certificate authorising her to receive back from the collector the additional court-fees which was realized from her in the lower appellate court under the order of the learned District Judge of 16th December 1938", A reference may also he made to the case of the (13) Province of Madras, represented by the Collector of Nellore, Petitioner v. Kalavakura Audemma and others, respondents reported in A.I.R. 1949 madras page 895 wherein Mr. Justice horwill relied on an earlier decision in the case of (14) In re Chidambaram chettiar reported in A.I.R. 1934 Madras, page 566 and approved of the principles laid down therein viz., that the court could order a refund only, (1) where the Court-fees Act applies; (2) where there is an excess payment by mistake ; or (3) where, on account of the mistake of a court, a party has been compelled to pay court-fees either wholly or in part. It was observed that outside the aforesaid three categories, the court has not authority to direct a refund. The present three applications, for refund of the excess court-fees paid therein, come clearly within the ambit of (2) and (3. In a recent decision of the Calcutta High Court in the case of (15) Eagle Plywood Industries (P)Ltd. v. Amulya Gopal Mazumdar and ors. reported in 69 C.W.N. page 1025. Mr. Justice D. N. Sinha (as His Lordship then was) delivering the judgment of the full bench referred to and considered several decisions viz., the cases of (1) J. C. Galstun v. Raja Janaki Nath roy and ors., reported in 38 C.W.N. page 185; (2) Sm. Abodh Bala Ghose v. sm. reported in 69 C.W.N. page 1025. Mr. Justice D. N. Sinha (as His Lordship then was) delivering the judgment of the full bench referred to and considered several decisions viz., the cases of (1) J. C. Galstun v. Raja Janaki Nath roy and ors., reported in 38 C.W.N. page 185; (2) Sm. Abodh Bala Ghose v. sm. Radharani Dasi, reported in 55 C.W.N. page 417; (3) Indu Bhusan Roy chaudhury v. The Secretary of State for India in Council, reported in 40 C.W.N. page 309; (4) In re : Chidambaram chettiar, reported in I. L. R. 57 madras page 1028; (5) In Re B. Kappini Gowder, reported in A.I.R. 1938 madras page 67; (6) Siddheswar chandra v. Satya Kishore Banerji, reported in 41 C.W.N. page 184; (7) Ranjan Lal v. Shankar Lall, reported in A.I.R. 1953 Nagpur page 330; (8) Karfule Ltd. v. A. D. Varghese reported in A.I.R. 1953 Bombay page 73: (9) Rachappa v. Sidappa reported in 46 I. A. page 24; (10) Chandramoni koer v. Basdeo Narain Singh reported. in 4 Patna L. J. page 57; (11) The Wolverhampton New Water Works Co. v. Hawkesford, reported in 1859 6 C. B. (N. S.) page 336; and the Supreme court decision in (12) Om Prakash gupta v. State of Uttar Pradesh, reported in A.I.R. 1955 S. C. page 600 and ultimately observed that "the law on the subject may be summarised as follows : 1. The powers of the court to direct a refund of court-fees on a memorandum of appeal or on an application for review of judgment are expressly provided for in sections 13 to 15 of the Court-Fees Act (Act VII of 1870. 2. It has, however, been held by a consensus of opinion of different High Courts in India that the above sections are not exhaustive. 3. Where the matter falls within the scope of sections 13 to 15 of the court-Fees Act, the provisions must be strictly applied. 4. In matters outside the scope of sections 13 to 15, the court has in certain circumstances an inherent jurisdiction to order refund of court-fees on the principle that every court has inherent power to act ex debito justitiae that is to do real and substantial justice for the administration of which alone it exists. 4. In matters outside the scope of sections 13 to 15, the court has in certain circumstances an inherent jurisdiction to order refund of court-fees on the principle that every court has inherent power to act ex debito justitiae that is to do real and substantial justice for the administration of which alone it exists. Such powers have been exercised in the following cases : (a) where excess court-fees have been paid by oversight, mistake or inadvertence; (b) where a litigant has made excess payment under an erroneous view of the interpretation of the Court-Fees Act; (c) where the court has realised excess court-fees on an erroneous interpretation of the law. " I respectfully agree with the principles laid down above and i hold that in a fit and proper case, for securing the ends of justice, this court can direct a refund of excess court-fees paid in exercise of its inherent powers under section 151 of the Code of Civil procedure. Coming back to the context of a criminal revisional application with which I am concerned in the present petitions, it must be observed that there appears to be no precedent for a refund of excess court-fees by the court in exercise of its inherent jurisdiction under section 561a of the code of Criminal Procedure. The point therefore that crops up for consideration is whether the analogy of the principles laid down in the line of cases under section 151 of the Code of civil Procedure referred to above, as relating to the refund of excess court-fees in cases not provided for under the Court-Fees Act, would hold good in a criminal revisional application and the inherent powers of the court under section 561a of the Code of criminal Procedure can be exercised to secure the ends of justice. The answer to the same is not a difficult one and commends itself. The provisions of sections 561a of the Code of Criminal Procedure and 151 of the Code of Civil Procedure relating to the saving of inherent power of the High Court are indeed corresponding ones, proceeding on the same principles and containing almost the same language. The principles therefore bearing on the point at issue as laid down in the context of one, shall hold good in the case of the other. The principles therefore bearing on the point at issue as laid down in the context of one, shall hold good in the case of the other. The decisions under section 151 of the Code of Civil Procedure in similar cases can, in my view, be taken to be pari materia in criminal revisional applications for securing the ends of justice under section 561a of the Cr. P. C. The principles laid down in the line of cases under section 151 of the Code of Civil procedure would therefore apply to the facts of these three petitions for refund of excess court-fees. The citizens of the Republic have given great powers to the Judiciary and great powers necessarily involved grave responsibilities. These three applications bring to light prominently cases where the strong calm voice of justice must prevail. "fiat Justitia Ruat Coelum''. I accordingly hold that the provisions of section 561a of the Code of Criminal procedure would be applicable to the facts of these three revisional applications where excess court-fees were realised, not in due process of law, and I direct in exercise of the inherent powers that such excess court-fees are to be refunded. 7. ONE ancillary point remains as to whether any court-fee should be paid on these three applications for refund of excess court-fees. The provisions in the schedule under chapter IV, Rule 1 of the Rules of High Court at Calcutta, Appellate Side, lay down that an application relating to the refund of court-fees paid in excess should bear a court-fee stamp of Rs. 2/ -. The schedule however makes it clear that the aforesaid refund of the court-fees paid in excess is in connection with section 13 of the Court-Fees Act, 1870 and the provisions thereof relate to the refund of court-fees paid on memorandum of Appeal. In the instant cases, the refund prayed for is not in connection with any memorandum of appeal but relates to revisional applications filed under section 439 of the Code of Criminal Procedure. I hold accordingly that no court-fee stamp is necessary on these applications filed for the refund of the excess court-fees paid. 8. In the instant cases, the refund prayed for is not in connection with any memorandum of appeal but relates to revisional applications filed under section 439 of the Code of Criminal Procedure. I hold accordingly that no court-fee stamp is necessary on these applications filed for the refund of the excess court-fees paid. 8. IN the result, I direct that the excess amount of court-fees paid, viz., Rs.3/- on each of the three revisional applications, filed in this court under section 439 of the Code of Criminal procedure, shall be refunded to the respective applicants; and that requisite certificates be issued to that effect. The three petitions are disposed of accordingly.