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1980 DIGILAW 326 (ALL)

Ram Prasad v. Abdul Khaliq

1980-03-11

M.MURTAZA HUSAIN, MAHAVIR SINGH

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JUDGMENT M. Murtaza Husain, J. -While sitting single one of us referred the following two questions of law for determination by a larger Bench:- 1. Whether the remedy under Section 482, Cr. P. C. can be availed of by party in spite of an express bar to a second revision by Section 397 (3), Cr, P. C. ? 2. Whether while hearing a revision t under the new Cr. P. C. against an order passed in a proceeding under Section 145' Cr. P. C. (old) in conformity with the finding of the civil court under Section 146 (IB) old Cr. P. C. the revisional court is empowered to question the correctness, legality or propriety of the finding or the regularity of the proceedings of the civil court ? 2. We have heard the learned Advocates of the parties on the aforesaid two points. 3. So far as the aforesaid first point is concerned their Lordships of the Supreme Court have laid down in Madhu Limaye v. State of Maharashtra ( AIR 1978 SC 47 ), which was a case of bar relating to maintainability of a revision against an interlocutory order placed by Section 397 (2) Cr. P. C. 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. 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 contained 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. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction". A Division Bench of this Court has also laid down in Bhola v. State (1979 Cri LJ 718) that :- "This bar should not cause any frustration in the mind of an aggrieved party as the High Court has inherent powers to remedy an abuse of the process of any court or otherwise to secure the ends of justice as laid down in Section 482 of the Code in a proper case where no alternative remedy is open to the aggrieved party." Following the above noted observations we are of the opinion that a party, which is unsuccessful in a revision before the Sessions Judge, is precluded from filing a second revision in the High Court by Virtue of the provisions of Section 397 (3) Cr. P. C. The High Court can, however, exercise its inherent powers where that exercise is warranted irrespective of the manner in which the matter has been brought to the notice of the High Court. A party which has been unsuccessful in revision filed before the Sessions Judge may seek to bring the matter to the notice of the High Court under Section 482 Cr. P. C. and the High Court can in appropriate cases, remedy the wrong done by a subordinate court, if the conditions laid down by Section 482 Cr. P. C. (new) exist. 4. The second point referred to us has already been thrashed out by their Lordships of the Supreme Court and also by a Division Bench of this Court. In Chandrasekhar Singh v. Siya Ram Singh (1979 Cri LJ 13): ( AIR 1979 SC 1 ) the Supreme Court has held that:- "The finding of the civil court given under Section 148 (IB) regarding possession is final and cannot be challenged by way of appeal, review or revision." It was specifically laid down in that authority that the aforesaid finding cannot be interfered with by the High Court in exercise of its revisional jurisdiction. In that case the proceedings under Section 145 Cr. P. C. had started on 18-3-1968. In that case the proceedings under Section 145 Cr. P. C. had started on 18-3-1968. The impugned finding was given by the civil court on 22-12-1975 i. e., after the coming into force of the new Code of Criminal Procedure and a revision filed before the High Court under the provisions of the new Code was disposed of by the High Court and interference was done with the finding of the civil court. Their Lordships of the Supreme Court set aside the order of the High Court with the observation that in exercise of its revisional jurisdiction the High Court could not interfere with that finding. 5. In Mehboob Raza Khan v. Mohd. Shah Khan (1979 Cri LJ 228) a question absolutely similar to one referred to us was referred by one of us to a larger Bench and it was replied by a Division Bench in the following words:- "A revision lies under Section 397 (1) against the order of a Magistrate passed under Section 145 in conformity with the finding of the Civil Court but legality, propriety or correctness of the finding given by the civil Court cannot be challenged in it even if it might have merged in the order of the Magistrate. The position remains the same as laid down by the Full Bench in 1971 Cri LJ 29 (All) Farzand Ali v. Shaukat Ali. This is so by virtue of the saving clause in Section 484. The correctness of the order of the Magistrate alone can be challenged on grounds of jurisdiction, or that it is not in conformity with the finding of the Civil Court". In view of the above decisions of the Supreme Court in Chandrasekhar Singhs case ( AIR 1979 SC 1 ) (supra) and of the Division Bench of this Court in Mehboob Raza Khans case (supra) we hold that the finding given by the civil court under Section 146 (IB) of the old Code of Criminal Procedure cannot be interfered with by the High Court in exercise of its revisional jurisdiction under the new Code. 6. The two questions referred to us are replied as follows:- (l) The bar of entertaining a second /application for revision by the same person. imposed by sub-section (3) of Section 397 Cr. P. C. (new) is only against the person who has already chosen his remedy before one of the two prescribed (forums. 6. The two questions referred to us are replied as follows:- (l) The bar of entertaining a second /application for revision by the same person. imposed by sub-section (3) of Section 397 Cr. P. C. (new) is only against the person who has already chosen his remedy before one of the two prescribed (forums. In spite of that bar it is open to the High Court to exercise, in appropriate cases, its inherent powers to remedy an abuse of the process of any court or otherwise to secure the ends of 'justice if the conditions laid down by Section 482 Cr. P. C. (new) exist, and (2) The correctness, legality or propriety of the finding of the civil court given under Section 146 (IB) Cr. P. C. (old) cannot be interfered with by the High Court in exercise of its revisional jurisdiction under the new Code though the correctness of the order ultimately passed by the Magistrate on the basis of that finding can be questioned on grounds like jurisdiction or that it is not in conformity with the finding of the civil court. 7. Let our opinion on the two referred points be laid before the Hon'ble single Judge for the disposal of the case concerned.