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1979 DIGILAW 168 (PAT)

Chandan Siagh v. Indra Mohan Jha

1979-08-07

M.P.SINGH

body1979
Judgment M. P. Singh, J. 1. The petitioner Chandan Singh (Minor) is one of the claimants of the disputed Ambassadar Motor Car B. R. F.-6720. The opposite party Indra Mohan Jha is the other claimant. On information given by indra Mohan Jha the Jandaha police seized that Car on 12-10-1978 in Jandaha bazar from the possession of the driver Hari Singh and instituted a criminal case under section 406, Penal Code (Jandaha Police Station Case No.7 dated 12-10-1978. G. R. Case No.1488 of 1978 ). The Chief Judicial Magistrate, hajipur by his order dated 14-2-1979 released that car in favour of the informant Indra Mohan Jha on his furnishing a bond of Rs.15,000 with two sureties of the like amount each and on his understanding to produce it before that court or before the trial court if and when so directed. Being aggrieved by that order, the petitioner Chandan Singh went in revision the sessions Judge, Muzaffernagar the same being Criminal Revision No.26 of 1979. The revision was dismissed on 19th April, 1979 by the Sessions Judge. Then this miscellaneous application was filed by the petitioner Chandan Singh in this Court. 2. Mr. Sachidanand Jha appearing for the opposite party raised a preliminary objection that the present application which has been labelled under section 482 of the New Code of Criminal Procedure (briefly, the Code) is incompetent being barred by the provisions of section 397 (3) of the Code. 3. The question to be determined, therefore, is whether this application for invoking the exercise of inherent power of this Court is maintainable in face of the provisions of sub-section (3) of section 397 of the Code. That sub-section runs as under : "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 person shall be entertained by the other of them. " On the perusal of the above it is clear that the object of the sub-section is to prevent a multiple exercise of revisional power and to secure early finality to orders. Any person aggrieved by an order of an inferior court is given an option to approach either the Sessions Judge or the High Court and once he exercises the option, he is precluded for invoking the revisional jurisdiction of the other. Any person aggrieved by an order of an inferior court is given an option to approach either the Sessions Judge or the High Court and once he exercises the option, he is precluded for invoking the revisional jurisdiction of the other. The language of section 397 (3) Is clear, explicit and peremptory and it does not admit of any ambiguity and hence it is conclusive in what it directs and what it forbids. In order to cross the hurdle imposed by section 397 (3) it was contained on behalf of the petitioner that the present application filed in this Court is under section 482 of the Code for exercising of inherent power and, therefore, it is not barred. I do not. agree with this contention. In my opinion, it is not permissible to do so. As held in Jagir Singh V/s. Ranblr Singh, A. I. R.1979 S. C.381, "what may not have been done directly, cannot be allowed to be done indirectly-" In Attorney General of Saskatchcwan V/s. The Attorney-General of canada, A. I. R.1949 P. C.190 also it was observed : "you cannot do that indirectly which you are prohibited from doing directly (per Lord Halsbury in Madden V/s. Nelson and Fort Shepperd ry. C. , 1899 A. C.262 at p.627 : (68 L. J. P.148 ). " referring to the observation made by Abbot C. J. in Fix V/s. Bishop of Chester (1824) 2 B. and C.635) it was further observed by the Supreme court in Jagir Singhs case (supra) that it is a well known principle of law that the provisions of an act of Parliament shall not be evaded by shift or contrivance. In my opinion, therefore, the bar of section 397 (3) is effectively attracted in the instant case and that bar cannot be circumvented by labelling the petition under section 482 of the Code. The case of Jagir Singh (supra) was followed by this Court in Chandra Kalia Debi V/s. State of Bihar (1979) B. L. J. R.345 and it was held that law does not permit to circumvent the law by changing the label of the petition and that inherent jurisdiction of the high Court cannot be exercised against an express bar of law engrafted in other provision of the Code and that the bar has been provided under sub-section (3)of section 397. It was further observed by this Court that in effect the petitioner was seeking to invoke the revisional jurisdiction of the Court although labelled his petition as one under Sec.482 of the Code. In Amar Nath and others V/s. State of Haryana and others, A. I. R.1977 S. C.2185 it was observed : "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 1973 Code the inherent power contained in section 482 would not be available to defeat the bar contained in section 397 (2 ). . . . . . . . . When a particular order is expressly barred under section 397 (2) and cannot be the subject of revision by the high Court, then to such case provisions of section 482 would not apply. It is well settled that inherent powers of the High court can ordinarily be exercised when there is no express provision on the subject-matter. When there is an express provision, the Court cannot resort to the exercise of inherent power. " Counsel for the petitioner, however, contained that the view taken in amar Naths case (supra) was modified and modulated in Madhu Limaye V/s. State of Maharashtra, A. I. R.1978 S. C.47. It is true that the view taken in Amar Naths case was modified in that case but it is to be noticed that amar Naths case (supra) was not overruled. Only the precise scope of that decision was made clear. It was observed in Madhu Limayas case (supra):- "in our opinion a happy solution of the problem would be to say that the bar provided in sub section (2) (of section 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 relation to any interlocutory order. . . . . . . . . . . . if the order assailed is purely and interlocutory order 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. . . . . . . . . . . . if the order assailed is purely and interlocutory order 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. " So far as the question of exercise of inherent power under section 482 of the Code is concerned it was held in that case that the High Court could exercise its inherent power to quash even an interlocutory order in case that 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 and interference by the high Court is absolutely necessary, and in that event nothing contained in section 397 (2) could limit or affect the exercise of inherent power of the High court. It was further said that the law as stated in R. P. Kapur V/s. State of Punjab, (1960) 3 S. C. R.388 : (A. I. R.1960 S. C.866) relating to the scope of inherent power of the High Court for the purpose of quashing a criminal proceeding is not affected by section 397 (2) of the New Code and it still holds good in accordance with section 482. From the above it is clear and that the High Court can exercise its inherent power only in cases which come under section 482 of the Code. In other words the High Court has inherent powers to make such orders; (1) as may be necessary to give effect to any order under the Code; (ii) to prevent abuse of the process of the Court, and (iii) otherwise to secure ends of justice. See also case of state of Karnataka V/s. L. Muniswami, A. I. R.1977 S. C.1489. Thus the inherent power of the High Court can be exercised only for the three purposes mentioned in section 482 and in these three matters nothing in the criminal Procedure Code shall be deemed to limit or affect its inherent power. Inherent power cannot relate to any of the matters specifically dealt with by the Code. It would follow that inherent power cannot be invoked to exercise power which would be inconsistent with any of the provisions of the code. Inherent power cannot relate to any of the matters specifically dealt with by the Code. It would follow that inherent power cannot be invoked to exercise power which would be inconsistent with any of the provisions of the code. The saving of inherent power is only for giving effect to orders passed under the Code, to prevent abuse of the process of any Court or otherwise to secure the ends of justice. (See the case of State of Orissa V/s. Ram chandra Agarwala, A. I. R.1979 S. C.87 ). 4 The principle enunciated in these cases is destructive of the submission of the petitioner. In the instant case it was conceded by the learned counsel for the petitioner, and in my opinion, rightly that a revision could had been filed directly in this Court without filing the revision petition before the session Judge and the error, if any, in the order of the Chief Judicial Magistrate could have been corrected by the Court in its revisional jurisdiction. If that be so, I think that this application under section 482 of the Code must be treated in substance as one under section 397 (1) although the petition has been labelled under section 482. That has been done merely to evade and to nullify the provisions of sub-section (3) of section 397 of the Code. The petitioner cannot be permitted to do so. 5. Learned counsel for the petitioner, however, submitted that the facts of this case attract the application of section 482 and the same should be considered on merits. Now let us examine the facts and circumstances of this case as found by the two courts below. The opposite party Indra Mohan jha is the admitted owner of half share in the car. In order to prove his ownership he relied upon a receipt dated 17-3-1977 granted by the driver hari Singh which was in his custody. This receipt showed that the driver hari Singh, namely, the accused in the Jandaha police case under section 406, Indian Penal Code, took Rs.2,500/- from him for purchasing the car from one Bhuli Singh of village and P. O. Bela, Police Station Dariapur, distict Chapra and the receipts recites that the owner book of the said car will be in the joint names of Indra Mohan Jha and Hari Singh and that they shall be sharers half and half. The important thing to be noticed is that Janardan Singh, father of the minor petitioner has signed this receipt. Counsel of the petitioner admitted before this Court that this receipt was genuine. Hari Singh also never disputed the genuineness of this receipt. It clearly follows that Indra Mohan Jha did advance Rs.2,00/- for this car to Hari Singh ard he is admittedly the owner of half share in the car, the other half belonging to Hari Singh. Subsequently Hari Singh came into collusion of his relation Janardan Singh, namely, the father of the petitioner and managed to forge and fabricate a duplicate owner book in the name of the petitioner after depositing a sum of Rs.112.75. This duplicate owner book was issued on 20-1-1979, that is to say, after the institution of the criminal case against Hari Singh. Hari Singh dishonestly disappeared with the car and was ultimately arrested in Jandaha Bazar by the police when indra Mohan Jha informed the police. It may be stated that the two courts below have accepted the genuineness of the receipt dated 17-3-1977, The Sessions judge further considered the fact that there was no reason for the petitioner to wait for registration of the car for a long time. The petitioner claimed to have purchased the car on 10-2-1977 from buli Singh for Rs 3,401/- but obtained registration certificate under the Motor vehicle Act on 0-1-1979, that is, after two years after the alleged purchase and also after the case was instituted by the police on 12-10-1978 at the instance of Indra Mohan Jha. It is thus clear from the facts found by the courts below that Hari Singh owner of half share became dishonest and he in collusion with his relation Janardan Singh father of the petitioner wanted to deprive the petitioner of the ownership of the car for that purpose managed to obtain a duplicate owner book in the name of the petitioner. Under these circumstances I think justice was done by the Chief Judicial magistrate in giving delivery of the car to Indra Mohan Jha and, therefore, section 482 of the Code of Criminal Procedure is not attracted to this case. 6. In view of the foregoing discussions I hold that this application is incompetent as it is not maintainable and it is dismissed as not maintainable. Application dismissed.