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Andhra High Court · body

2010 DIGILAW 977 (AP)

Tanneru Ram Babu v. State of A. P.

2010-10-05

R.KANTHA RAO

body2010
ORDER All these petitions have been filed under Section 482 Cr.P.C. pursuant to the orders passed by the Courts below on the applications filed under various provisions in Chapter XXXIV of Cr.P.C. relating to the disposal of the property, such as, under Sections 451 Cr.P.C., 457 Cr.P.C. etc. 2. I have heard the learned counsel appearing for the petitioners and the learned Additional Public Prosecutor representing the State. 3. Since this Court initially wants to adjudicate upon the question as to whether this Court by exercising inherent powers under Section 482 Cr.P.C. is supposed to entertain these petitions, the merits of each and every individual case have not been gone into and the order is confined only to the maintainability, desirability and propriety of the Court to entertain an application under Section 482 Cr.P.C. when the remedies under specific provisions of law are available to the petitioners. 4. The learned counsel appearing for the petitioners in all these cases tried to impress upon the Court that even alternative remedy under some other provision is available, this Court can grant relief by exercising its inherent powers under Section 482 Cr.P.C. and they submitted that the petitions can be entertained and be disposed of. 5. Some criminal petitions have come to the notice of this Court wherein jurisdiction of this Court under Section 482 Cr.P.C. is invoked despite there are specific remedies available under different provisions of law. The question which this Court takes up for consideration is not that the Court has no power or jurisdiction to dispose of these petitions and some other petitions of similar nature. But this Court wants to examine the desirability and the justification in entertaining this kind of applications by exercising inherent powers under Section 482 of the Code. Indisputably this Court can exercise inherent powers under Section 482 CR.P.C. despite some other remedy is provided for the applicants under the other provisions of law. The learned counsel appearing for the petitioners also placed some decisions of the Apex Court and this Court which are to the effect that even when an alternative remedy is available to a party, he can still invoke jurisdiction of this Court under Section 482 Cr.P.C. There is absolutely no quarrel to the said proposition of law. 6. The learned counsel appearing for the petitioners also placed some decisions of the Apex Court and this Court which are to the effect that even when an alternative remedy is available to a party, he can still invoke jurisdiction of this Court under Section 482 Cr.P.C. There is absolutely no quarrel to the said proposition of law. 6. As I have already mentioned, the crucial issue is that in view of the fact that extraordinary inherent powers possessed by this Court, is it appropriate on the part of the Court to entertain the applications which could have rightly been filed under some other provisions of law where a specific remedy has been provided. This Court is not supposed to entertain such applications as a matter of routine as per the settled legal position expounded by the Apex Court. 7. I would like to refer the judgments of the Apex Court which lay down the parameters justifying invoking inherent powers under Section 482 Cr.P.C. 8.InArun Shankar Shuklav. State of U.P. and others (1) 1999 (2)ALT (Crl.) 270 (SC)= 1999 (6) ALTS.3 (ON SC)= 1999 (6)SCC 146 the Apex Court held as follows: "It is true that under Section 482 of the Code, the High Court has inherent powers to make such orders as may be necessary to give effect to any order under the Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice. But the expressions "abuse of the process of law" or "to secure the ends of justice" do not confer unlimited jurisdiction on the High Court and the alleged abuse of the process of law or the ends of justice could only be secured in accordance with law including procedural law and not otherwise. Further, inherent powers are in the nature of extraordinary powers to be used sparingly for achieving the object mentioned in Section 482 of the Code in cases where there is no express provision empowering the High Court to achieve the said object. It is well neigh settled that inherent power is not to be invoked in respect of any matter covered by specific provisions of the Code or if its exercise would infringe any specific provision of the Code. In the present case, the High Court overlooked the procedural law which empowered the convicted accused to prefer statutory appeal against conviction of the offence. In the present case, the High Court overlooked the procedural law which empowered the convicted accused to prefer statutory appeal against conviction of the offence. High Court has intervened at an uncalled for stage and soft-pedalled the course of justice at a very crucial stage of the trial. The order passed by the High Court, entertaining the petition of the convicted accused under Section 482 of the Code is, on the face of it, illegal, erroneous and to say the least, unfortunate. It was known to the High Court that the trial Court passed proceedings to the effect that final judgment and order convicting the accused were pronounced by the trial Court. It was also recorded by the trial Court that as the accused were absent, the Court had issued non-bailable warrants. In such a situation, instead of directing the accused to remain present before the Court for resorting to the steps contemplated by the law for passing the sentence, the High Court has stayed further proceedings including the operation of the nonbailable warrants issued by the trial Court. It is disquieting that the High Court has overlooked the important legal aspect that accused have a right of appeal against the order of conviction purported to have been passed by the trial Court. In such circumstances the High Court ought not to have entertained a petition under Section 482 of the Code and stonewalled the very efficacious alternative remedy of appeal as provided in the Code. Merely because the accused made certain allegations against the trial Judge the substantive law cannot be bypassed." 9. In State of Gujarat v. Salimbhai Abdulagaffar Shaikhalld others (2)2003 (2) ALT (Crl.) 343 (SC) = 2003 (8) SCC 50 the Apex Court held as follows: . "The High Court has also invoked powers under section 482 Cr. P. C. while granting bail to the respondents. Section 482 Cr. P. C. saves the inherent power of the High Court. The High Court possesses the inherent powers to be exercised ex debito justitiae to do the real and substantial justice for the administration of which alone courts exist. The power has to be exercised to prevent abuse of the process of the court or to otherwise secure the ends of justice. But this power cannot be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party. The power has to be exercised to prevent abuse of the process of the court or to otherwise secure the ends of justice. But this power cannot be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party. (See Madhu Limaye v. State of Maharashtra). There being a specific provision for grant of bail, the High Court clearly erred in taking recourse to section 482 Cr.P.C. while enlarging the respondents on bail." 10. In Hamida v. Rashid Alias Rasheed and others (3) 2007 (3) ALT (Crl.) 395 (SC) = (2008) 1 SCC 474 the accused were granted bail by the trial Court for the alleged offences under Sections 324, 352 and 506 IPC, on the same day they were arrested and produced before the Chief Judicial Magistrate for seeking remand on the ground that subsequent to grant of bail, one of the victim succumbed to the injuries and the offence thereafter was converted into Section 304 IPC, the accused filed a petition under Section 482 Cr.P.C. before the High Court seeking a direction to the Chief Judicial Magistrate to permit them to remain on the same bail even after conversion of the offence into one under Section 304 IPC. The High Court allowed the petition by the impugned order. 11. In the appeal, the Supreme Court observed that the respondents-accused could have applied for bail afresh after the offence, had been converted into one under Section 304 IPC. They deliberately did not do so and filed a petition under Section 482 Cr.P.C. in order to circumvent the procedure whereunder they would have been required to surrender as the bail application could be entertained and heard only if the accused were in custody. No order adverse to the accused' respondents had been passed by any Court nor there was any miscarriage of justice or any illegality. In such circumstances, the high Court committed manifest error of law in entertaining a petition under Section 482 Cr.P.C. and issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence under section 304 IPC. In such circumstances, the high Court committed manifest error of law in entertaining a petition under Section 482 Cr.P.C. and issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence under section 304 IPC. The procedure laid down for grant of bail under Section 439 Cr.P.C., though available to the accused respondents, having not been availed of, the exercise of power by the High Court under Section 482 Cr.P.C. is clearly illegal and the impugned order passed by it has to be set aside. 12. In Central Bureau of Investigation v. A. Ravishankar Prasad and others (4) 2009 (8) SCJ 390 = (2009) 6 SCC 351 the Apex Court laid down law on the subject as follows: "17. UNDOUBTEDLY, the High Court possesses inherent powers under Section 482 of the Code of Criminal Procedure. These inherent powers of the High Court are meant to act ex debito justitiae to do real and substantial justice, for the administration of which alone it exists, of to prevent abuse of the process of the court. 18. Inherent power under Section 482 Cr.P.C. can be exercised in following category of cases: (i) to give effect to an order under the Code; (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. 19. This court time and again has observed that the extraordinary power under Section 482, CL P. e. should be exercised sparingly and with great care and caution. The court would be justified in exercising the power when it is imperative to exercise the power in order to prevent injustice. In order to understand the nature and scope of power under Section 482 Cr.P.C. it has become necessary, to recapitulate the ratio of the decided cases. 20. Reference to the following cases would reveal that the courts have consistently taken the view that they must use the court's extraordinary power only to prevent injustice and secure the ends of justice." 13. In the cases on hand, the applications filed by the petitioners seeking return of property to their interim custody have been dismissed. The orders therein being final, a remedy to approach the court of revision for appropriate relief is available to them. In the cases on hand, the applications filed by the petitioners seeking return of property to their interim custody have been dismissed. The orders therein being final, a remedy to approach the court of revision for appropriate relief is available to them. When their applications have been dismissed by the trial Court, without availing the alternative remedy, they cannot straightaway approach this Court with a prayer to exercise inherent powers under Section 482 Cr.P.C. There may be cases where Courts have invoked inherent powers of extraordinary jurisdiction under Section 482 Cr.P.C. despite availability of alternative remedy. Butin those cases, the powers under Section 482 Cr.P.C. were exercised as the facts and circumstances warrant exercise of the said powers. The judgments relied upon by the petitioners may illustrate some instances under which Section 482 Cr.P.C. has been invoked even though alternative remedy was available. But the said decisions do not lay down the ratio as to when and under what circumstances the power under Section 482 Cr.P.C. has to be exercised. The question is not as to whether the court can redress a particular grievance in exercise of its power under Section 482 Cr.P.C. The core issue requires thorough examination in the present petitions is that whether the aggrieved party whenever he was refused a remedy by the court below, can approach this Court under Section 482 Cr.P.C. without having recourse to the remedies available under specific provisions of the Code of Criminal Procedure. In my considered view, entertaining such applications like the present ones under Section 482 Cr.P.C. in a routine way is unwarranted and unjustified. If the aggrieved parties are permitted such a course, they invariably invoke the jurisdiction under Section 482 Cr.P.C. without pursuing their remedies under specific provisions available to them under the Code. The circumstances justifying exercise of inherent powers under Section 482 Cr.P.C. must be such that unless such power is exercised, it is not possible to prevent abuse of process of law or miscarriage of justice. Before I conclude, I deem it appropriate to extract the following words of the Supreme Court in Hamidn case (3rd cited supra). "The dockets of the High Courts are full and there is a long pendency of murder appeals in the High Court from which this case has arisen. Before I conclude, I deem it appropriate to extract the following words of the Supreme Court in Hamidn case (3rd cited supra). "The dockets of the High Courts are full and there is a long pendency of murder appeals in the High Court from which this case has arisen. Ends of justice would be better served if valuable time of the Court is spent in hearing those appeals rather than entertaining petitions under Section 482 Cr.P.C. at an interlocutory stage which are often filed with some oblique motive in order to circumvent the prescribed procedure, as is the case here, or to delay the trial which will enable the accused to win over the witnesses by money or muscle power or they may become disinterested in giving evidence, ultimately resulting in miscarriage of justice." 14. In all the present cases, there are alternative efficacious remedies provided for under the Code. The petitioners are not supposed to invoke the jurisdiction, of this Court under Section 482 Cr.P.C. deliberately not availing the alternative remedies available under the specific provisions of the Code which are very much available to them. Invoking the jurisdiction of this Court under Section 482 Cr.P.C. for each and every grievance by intentionally omitting to pursue the other remedies available to the petitioners under the Code has to be curtailed, the reason being permitting the parties to invoke the jurisdiction under Section 482 Cr.P.C. in a casual and routine manner by deliberately avoiding to seek the relief under appropriate provisions of the Code itself would amount to abuse of the process of Court and law. Whenever the lower Court declines to grant the relief prayed for, it can not be said that such order invariably results in miscarriage of justice unless the High Court is thoroughly convinced that non-exercise of inherent powers would inevitably result in miscarriage of justice or abuse of process of law it would be quite inappropriate to grant the relief by exercising inherent power in a mechanical way thinking that it has got the requisite power to grant the relief under Section 482 of the Code. 15. For the aforesaid reasons, the criminal petitions are dismissed without going into the merits and giving the petitioners liberty to pursue their remedies before the appropriate forum under the specific provisions which provide remedies to them under the Code.