Research › Search › Judgment

J&K High Court · body

2007 DIGILAW 292 (JK)

Jamia Auqaf Committee Kangan v. SHO, P/S Kangan

2007-12-31

MOHAMMAD YAQOOB MIR

body2007
1. Maintainability of the petition is questioned by the counsel for the respondents in view of the bar contained in Section 435 (3) of Cr.P.C. In support of his contention reliance has been placed on AIR 1977 SC 2185, AIR 1993 SC 1361. Controverting the submission of learned counsel for petitioner has relied on judgment reported in AIR 2006 SC 1937, (1997) 4 SCC 241. 2. Considered the rival submissions. Basically, proceedings initiated in terms of Section 145 Cr.P.C. by the Judicial Magistrate, Ist Class, Kangan, culminated in passing the order dated 04.09.2006 by virtue thereof, Gh.Mohd. Sheikh respondent no.2 herein has been held entitled to hold possession of the property in dispute covered under Survey No. 427 i.e land measuring one kanal and one marla situated at Main Bazar, Kangan. Aggrieved thereof, revision petition filed, has been disposed of by 3rd Additional Sessions Judge, Srinagar vide order dated 26.12.2006. Order of the Magistrate has been upheld. Aggrieved of the same, instant petition in terms of 561-A Cr.P.C has been filed. The question which arises for consideration is as to whether petition under Section 561-A Cr.P.C. can lie when as per Section 435 (3) Cr.P.C, no further application by same person shall be entertained once the Revision petition has been disposed of. 3. In the reported judgment i.e AIR 1993 SC page 1361 similar question arose for consideration , Apex Court has ruled as under:- "The question that falls for our consideration now is whether the High Court could have utilized the powers under S.482 of the Code and entertained a second revision-application at the instance of the 1st respondent. Admittedly the 1st respondent had preferred a Criminal Application being Cr.R.No 180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14th May, 1979. Section 397(3) bars a second revision application by the same party. It is now well settled that the inherent powers under S.482 of the Code cannot be utilized for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st. Respondent. On this short ground itself, the impugned order of the High Court can be set aside." 4. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st. Respondent. On this short ground itself, the impugned order of the High Court can be set aside." 4. In AIR 1977 SC 2185 while dealing with a similar question, Apex Court has ruled as under:- "While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under Sub- s. (2) of S.397 of the 1973 Code the inherent powers contained in S.482 would not be available to defeat the bar contained in S. 397 (2) Section 482 of 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Ss.397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under S. 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of S.482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject matte. Where there is an express provision, barring a particular remedy the Court cannot resort to the exercise of inherent powers." 5. The similar question again arose for consideration before Apex Court in the judgment (1997) 4 SCC page 241 while over ruling the earlier judgment it has been held:- "In view of the above discussion, we hold that though the revision before the High Court under sub-section (1) of Section 397 is prohibited by sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and is it a paramount power of continuous superintendence of the High Court under Section 483, the High Court is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. It remitted the case to the Magistrate for decision on merits after consideration of the evidence...." 6. Applying the law as has been laid down, in my opinion. Plain language of Section 561-A Cr.P.C ordain that bar created by Section 435(3) will not divest the court of its inherent power. 7. It remitted the case to the Magistrate for decision on merits after consideration of the evidence...." 6. Applying the law as has been laid down, in my opinion. Plain language of Section 561-A Cr.P.C ordain that bar created by Section 435(3) will not divest the court of its inherent power. 7. The opening words "Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court" suggest that applicability of Section 435(3) Cr.P.C is excluded. Therefore, inherent power of the court is saved, same is available, whether it can be exercised, is a different issue, dependent upon the facts and circumstances of each case, presenting question of abuse of process of law or question of securing interests of justice. This power no doubt is sparingly exercisable. In the instant case whether such power is exercisable will emerge only when appearing advocates are heard on merits. 8. Cumulative effect of the aforesaid position of law is that petition is held to be maintainable, hence, shall come up for final hearing. Be listed after vacation.