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1978 DIGILAW 150 (ALL)

KHEM SINGH v. NATHOO RAM SHARMA

1978-02-05

J.P.CHATURVEDI

body1978
S. MALIK, J. This is an applica tion under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter re ferred to as the new Code) praying that the order dated 11-7-1974 of the Additional Munsif Magistrate, Nagina, discharging the accused-respondents in a complaint case be set aside. 2. According to the complainant, the accused-respondents committed off ences punishable under Sections 409, 420, 467, 468 and 471 of the Indian Penal Code. Before coming to this Court the applicant went up in revision under the provisions of the new Code to the Court of Session and the same was rejected by the Additional Sessions Judge on the 31st of October, 1975. 3. As usual, the application came up for hearing before a learned Single Judge of this Court. As conflicting views have been expressed by two learned Judges on the question as to whether in view of sub-section (3) of Section 397 of the new Code even an application under Section 482 of the new Code like the one before us would be barred after the aggrieved party had gone up in revision before the learned Sessions Judge, the matter has been referred to a larger bench. The cases in which conflicting views were taken, are-Sarjoo v. Babadin (1975 AWC 500.) and Dassu v. Smt. Manitra (1976 AWC 78. ). 4. The question referred to us, as framed by the learned Single Judge, is : "whether in a case where an appli cation under Section 397 of the Code of Criminal Procedure, 1973, has been made by any party in the court of session and the application is decided against him, it is open to that party to invoke the extraordinary jurisdiction of this Court under Section 482 of the Code of Criminal Procedure to seek redress aga inst that order despite the provision con tained in sub-section (3) of Section 397 and sub-section (3) of Section 399 of the Code ?" 5. Section 397 of the new Code is in Chapter XXX of the new Code which deals with reference and revision. Section 397 deals with powers of revision of the High Court or a Court of Session. 6. Sub-sections (2) and (3) of Sec tion 397 of the new Code are bare impo sed on the wide powers of revision that can be exercised by the High Court or a Court of Session. 7. Section 397 deals with powers of revision of the High Court or a Court of Session. 6. Sub-sections (2) and (3) of Sec tion 397 of the new Code are bare impo sed on the wide powers of revision that can be exercised by the High Court or a Court of Session. 7. Sub-section (2) of Section 397 of the new Code bars the High Court or a Court of Session from interfering with or exercising its powers of revision in relation to an interlocutory order, while sub- section (3) of Section 397 of the new Code with which we are concerned, lays down : "if an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same per son shall be entertained"by the other of them. " 8. It is apparent that both these sub sections are in respect of powers of revision to be exercised by the High Court or a Court of Session. The words in the clause "no further application by the same person shall be entertained by the other of them appearing in sub section (3) of Section 397 of the new Code, clearly mean a revision applica tion. It is, therefore, clear from the language of sub-section (3) of Section 397 of the new Code that a party or a person has been given the option of fil ing a revision application either to the Sessions to Judge or the High Court, but once he has filed an application before either of the two, he cannot file another application to the other of them. In other words, as, in this case, as the aggrieved party filed an application before the Sessions Judge, the High Courts jurisdic tion to entertain a revision application regarding the same subject-matter is bar red by the provisions of sub-section (3) of Section 397 of the new Code. 9. In other words, as, in this case, as the aggrieved party filed an application before the Sessions Judge, the High Courts jurisdic tion to entertain a revision application regarding the same subject-matter is bar red by the provisions of sub-section (3) of Section 397 of the new Code. 9. Section 482 of the new Code which is identical to Section 561-A of the Code of Criminal Procedure, 1898 (hereinafter referred to as the old Code) lays down : "nothing in this Code shall-be deem ed 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. " On perusing the section we find no ambiguity in the words used. Under this section a High Court has been given inherent powers to- (i) pass orders to give effect to any order under the new Code, or (iii) otherwise to secure the ends of justice. 10. The primary duty of a Court is to do justice between the parties before it, no doubt, in accordance with law. A perusal of this section, however, speci ally, the last clause quoted above, makes it clear that a High Court has been couched with untrammelled powers "to secure the ends of justice", and to our mind, these inherent powers given under Section 482 would override the restric tions placed on its powers of revision under Section 397 of the new Code for the purposes enumerated in Section 482 of the new Code. 11. If, however, the High Court starts exercising its inherent powers under Section 482 of the new Code in the same manner in which it exercises its powers of revision under Section 397 of the new Code, the restrictions imposed by sub-sections (2) and (3) of Section 397 of the new Code on the powers of revi sion of a High Court would be rendered ineffective. As will appear from a peru sal of Section 482 of the New Code, the High Court has to exercise its inhe rent powers only for the purposes enu merated therein in exceptional cases and very sparingly when the aggrieved party has no other course open to it to get the injustice or the abuse of the process of any Court remedied. 12. The Supreme Court in Madhu Limaye v. State of Maharashtra (1978 ACR 78 : 1978 AWC 96) has considered an identical question relating to the bar to the powers of revision of the High Court laid down in sub-sec tion (2) of Section 397 of the new Code. In paragraph 8 after quoting the provi sions of Section 482 of the new Code, the Supreme Court observed : "at the outset the following princi ples may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invari ably, barring a few exceptions ;- (1) That the power is not to be resor ted to if there is a specific provision in the court 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. " 13. After pointing out the difference in the words used in sub-section (2) of Section 397 and the words used in Sec tion 482 of the new Code, it has been observed in paragraph 10 by the Supreme Court : "on a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub-sec tion (2) of Section 397 also, "shall be deemed to limit or affect the inherent powers of the High Court. " But, if we were to say that the said bar is not to opertate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out. In our opinion, a happy solu tion of this problem would be to say that the bar provided in sub-section (2) of Sec. 397 operates only in exercise of the revisional power of the High Court meaning thereby that the High Court will have no power of revision in rela tion to any interlocutory order. In our opinion, a happy solu tion of this problem would be to say that the bar provided in sub-section (2) of Sec. 397 operates only in exercise of the revisional power of the High Court meaning thereby that the High Court will have no power of revision in rela tion to any interlocutory order. Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing con tained in Section 397 (2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. " 14. These observations fully lay down the principle of law in accordance with which a High Court has to use its inherent powers as laid down in Ssctioa 482 of the new Code. With respict we agree with these observations and hold that sub-section (3) of Section 397 of the new Code will not prevent a party from invoking the extraordinary jurisdiction of the High Court under Section 482 of the new Code in a proper case covered by Section 482 of the new Code. We therefore, answer the question referred to us in the affirmative. 15. Let the record of the case be sent back to the learned Single Judge to enable him now to dispose of the case (Cr. Misc. Case No. 601 of 1976 ). Question answered. .