Research › Browse › Judgment

Kerala High Court · body

1995 DIGILAW 132 (KER)

Dharmarajan v. State of Kerala

1995-03-29

M.M.PAREED PILLAY, T.V.RAMAKRISHNAN

body1995
Judgment :- Pareed Pillay, CJ. The question that arises for consideration is whether the inherent powers of the High Court can be invoked in a case where revision is barred under S.397(3) of the Criminal Procedure Code. Matter has been referred to the Division Bench by Thomas, J. 2. Petitioner is alleged to have committed offence under S.55(a) of the Abkari Act. In C.C. 284 of 1989 Magistrate found him guilty under S.55(a) of the Act and convicted and sentenced him to undergo rigorous imprisonment for one year and also' to pay fine of Rs. 1,000/- and in default to undergo rigorous imprisonment for a further period of three months. The appeal filed by him was dismissed by the Assistant Sessions Judge. Revision was also dismissed by the Additional Sessions Judge. It is against the order in Crl.R.P. 69 of 1992 that the above Crl.M.C. has been filed before this Court. 3. Section 397 of the Code enables the High Court or the Sessions Judge to call for and examine the record of any proceeding before any inferior Criminal Court for the purpose of satisfying as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court. Sub-section (3) provides that 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 either of them. As the Sessions Judge has rejected the revision petition, the aggrieved party cannot certainly invoke the revisional powers of the High Court. In other words, second revision is barred. 4. Though second revision under S.397(3) is barred, High Court's inherent jurisdiction to consider the matter raised before it within its powers under S.482 of the Code cannot be denied. Certainly under the guise of the powers exercised under S.482 a party cannot expect the matter to be heard by the High Court as if in a criminal revision. 5. In Dharampal v, Ramshri (AIR 1993 SC 1361) the Supreme Court had occasion to consider whether revision would be maintainable in a case where the Sessions Judge confirmed the order of the Magistrate. 5. In Dharampal v, Ramshri (AIR 1993 SC 1361) the Supreme Court had occasion to consider whether revision would be maintainable in a case where the Sessions Judge confirmed the order of the Magistrate. The Supreme Court held that second revision will not lie to the High Court and that the matter cannot be brought before the Court under S.482 of the Code. Supreme Court made the position clear that inherent powers under S.482 cannot be utilised for exercising powers which are expressly barred by the Code. As second revision is barred under S.397(3), no criminal revision can be entertained before the High Court. 6. The powers of the High Court under S.482 cannot be equated with its powers under S.397. Powers of the High Court under S.482 stand on a different footing S.397(3) cannot affect the amplitude of inherent powers of the High Court. Section 482 starts with a non-obstante clause. Section 482 reads: "Nothing in this Code shall be deemed 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." The inherent powers of the High Court preserved by S.482 are not in, any way limited or abridged on the ground that no second revision is maintainable under S.397(3). Embargo under S.397(3) operates only in the exercise of the revisional power of the High Court. In other words, the High Court will not exercise its power of revision in a case where S.397(3) squarely applies. But that does not mean that the High Court cannot exercise its powers under S.482 whenever situation demands. In a case where there is abuse of process of the Court or it becomes necessary to secure the ends of justice, the High Court can certainly interfere invoking its powers under Ss.482. Thus, in a case where there is enough material for the High Court to invoke its jurisdiction under S.482 it cannot refuse to interfere on the ground that the order of the Sessions Judge in the criminal revision petition has become final. But it has always to be remembered that the powers under S.482 cannot be exercised to re-open a finding of fact. In Kelappan v, Poothilatte Kalyani (ILR 1991 (3) Ker. But it has always to be remembered that the powers under S.482 cannot be exercised to re-open a finding of fact. In Kelappan v, Poothilatte Kalyani (ILR 1991 (3) Ker. 866) this Court held that S.482 cannot be invoked to re-open a finding of fact. 7. From the very reading of S.482 it can be discerned that the powers of the High Court under the section cannot be equated to its powers of revision. Under S.397 the revisional Court after calling for the records of the inferior court can satisfy itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed and also as to the regularity of arty proceedings of the inferior Court. Reading of Ss.397 and 482 would show that the powers of the High Court are not the same. In Madhu Limaye v. State of Maharashtra (AIR 1978 SC 47) the Supreme Court held that the High Court has to exercise its inherent powers very sparingly. The principles to be borne in mind for the exercise of the inherent powers of the High Court are as follows: (1) That the power is not to be resorted to if there is a specific provision in the Code 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. (See para.8 of AIR 1978 SC 47). 8. Sections 397 and 399 of the Code bar the revisional jurisdiction of the High Court if that jurisdiction has already been invoked by a party before the Sessions Judge. It cannot bar the jurisdiction of the High Court with regard to its inherent powers. In a petition under S.482 the High Court cannot exercise its revisional power. Revisional power of the High Court stands distinct from its inherent powers. Both are different jurisdictions. Section 397(3) envisages that "no further application" would lie at the instance of the same person who has been worsted before the Sessions Judge. "No further application" mentioned in S.397(3) can have reference only to an application in revision before the High Court. Revisional power of the High Court stands distinct from its inherent powers. Both are different jurisdictions. Section 397(3) envisages that "no further application" would lie at the instance of the same person who has been worsted before the Sessions Judge. "No further application" mentioned in S.397(3) can have reference only to an application in revision before the High Court. What is barred by sub-section (3) of S.399 is "further proceeding by way of revision" and not an independent proceeding under S.482. To sum up, the position is that powers under S.482 stand intact, and unaffected by Ss.397(3) and 399. 9. The arrest of the accused and the seizure of the contraband Ganja from his possession do find a place in the evidence of P.W.3 Sub Inspector and the Police Constable, P.W.2 who accompanied the former. Evidence of P.Ws. 4 and 5 lends support to the prosecution case regarding seizure of the contraband Ganja as alleged by the prosecution. The defence version that the accused was arrested by the police while he was selling sarees was repelled by the trial Court as well as the appellate court. The learned Sessions judge held that in view of the evidence of P.Ws.2 and 3, the findings of fact cannot be assailed. Learned Sessions Judge having found that there is no irregularity, illegality or impropriety in the orders of the trial court and that of the appellate Court dismissed the Criminal Revision Petition. There is hardly any ground for this Court to interfere against the concurrent findings of the Courts below in the petition filed under S.482 Cr.P.C. The Criminal Miscellaneous Petition stands dismissed.