Himachal Pradesh High Court
Nagin Chand Alias Ginu Ram vs State Of Himachal Pradesh & Another on 5 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 1065 of 2023 Reserved on: 11.12.2023 .
Date of Decision: 05th January, 2024 Nagin Chand alias Ginu Ram ....Petitioner Versus State of Himachal Pradesh & another of ....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt Whether approved for reporting? Yes For the Petitioner : Mr. Anirudh Sharma, Advocate.
For the Respondents : Mr. Parshant Sen, Deputy Advocate General for respondent No.1-State.
None for respondent No.2.
Rakesh Kainthla,Judge The present petition has been filed under Section 482 of Cr.P.C. for quashing F.I.R. 87 of 2010 dated 30.10.2020 for the commission of offences punishable under Sections 341, 342, 323 and 506 of IPC, registered at Police Station Arki, District Solan, H.P.
2. The F.I.R. has been registered for the commission of compoundable offences. Hence, the matter was listed for Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 06/01/2024 20:33:09 :::CIS 2 consideration as to why power under Section 482 of Cr.P.C. should be exercised when an alternative remedy is available.
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3. I have heard Mr. Anirudh Sharma, learned counsel for the petitioner, who submitted that the existence of an alternative remedy is no bar in exercising the power under Section 482 of Cr.P.C. He relied upon the judgments of Prabhu Chawla vs State of of Rajasthan & another, AIR 2016 SCC 4245, Ramgopal & another Vs. The State of Madhya Pradesh, (2021) 6 SCC 476, Aashish Kumar Vs. rt State of H.P. & Anr. CrMMO No. 251 of 2019, decided on 09 th May 2019, Ravi Sharma Vs. State of H.P. Cr.MMO No. 253 of 2021, decided on 9th August 2021 andRanjeet Kumar vs State of H.P. & others, CrMMO No. 648 of 2023, decided on 08.12.2023 in support of his submission.
4. Mr. Parshant Sen, learned Deputy Advocate General, submitted that power under Section 482 of Cr.P.C. is an extraordinary power and should be exercised sparingly. The power should not be exercised when an alternative remedy is available and the party should be relegated to avail that remedy.
Therefore, he prayed that the present petition be dismissed.
::: Downloaded on - 06/01/2024 20:33:09 :::CIS 35. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
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6. It was held in Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551: 1978 SCC (Cri) 10 that inherent power should not be exercised when a specific remedy exists. It was observed:
At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High of Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions:
"(1) That the power is not to be resorted to if there is rt 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."
7. It was laid down by the Full Bench of Delhi High Court in Gopal Dass vs State AIR 1978 Del138, that the power under Section 482 of Cr.P.C. is vested in the Court to make such order as may be necessary to give effect to any order under the Code, prevent abuse of the process of any Court or otherwise to secure the ends of justice. This power cannot be exercised when a specific remedy is available under the other provisions of the Code. It was observed:-
::: Downloaded on - 06/01/2024 20:33:09 :::CIS 4"8. In order to determine the question under consideration as to what is the scope of the inherent powers of the High Court becomes relevant. The inherent powers of the High Court inhere in it because of its being .
at the apex of the judicial set-up in a State. The inherent powers of the High Court, preserved by section 482 of the Code, are to be exercised in making orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. Section 482 envisages that nothing in the Code shall be deemed to limit or affect the of inherent powers of the High Court exercised by it with the object of achieving the above said three results. It is for this reason that section 482 does not prescribe the contours of the inherent powers of the High Court which rt are wide enough to be exercised in suitable cases to afford relief to an aggrieved party. While exercising inherent powers it has to be borne in mind that this power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. (See R.P. Kapur v. State of Punjab, AIR 1960 S.C. 866) (1). This principle of law had been reiterated succinctly by the Supreme Court recently in Palanippa Gounder v. The State of Tamil Nadu, (1977) 2 SCC 634: AIR 1977 S.C. 1323 (2) therein examining the scope of section 482 it was observed that a provision which saves the inherent powers of a Court cannot override any express provision in the statute which saves that power. Putting it in another form the Court observed that if there is an express provision in a statute governing a particular subject there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which are made advisedly to govern the particular subject matter." (Emphasis supplied)
8. It was held in Arun Shankar Shukla v. State of U.P., (1999) 6 SCC 146: 1999 SCC (Cri) 1076: 1999 SCC OnLine SC 647 that ::: Downloaded on - 06/01/2024 20:33:09 :::CIS 5 power under Section 482 of Cr.P.C. is extraordinary and should not be exercised when specific remedy has been provided under the Code. It was observed:
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"2. It appears that unfortunately the High Court by exercising its inherent jurisdiction under Section 482 of the Criminal Procedure Code (for short "the Code") has prevented the flow of justice on the alleged contention of the convicted accused that it was polluted by the so-called misconduct of the judicial officer. It is true that under of 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 rt 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-nigh 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 a statutory appeal against conviction of the offence. The High Court has intervened at an uncalled for stage and soft-pedalled the course of justice at a very crucial stage of the trial.
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9. In our view, 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 ::: Downloaded on - 06/01/2024 20:33:09 :::CIS 6 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 non-bailable warrants issued by the trial court. It is disquieting that the High Court has overlooked the important legal aspect that the accused have a right of appeal of 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 rt 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. It was held by the Hon'ble Supreme Court in Hamida v.
Rashid, (2008) 1 SCC 474, that the inherent power under Section 482 of Cr.P.C. is to be exercised sparingly and should not be exercised when an alternative remedyis available. It was observed:
"7. It is a well-established principle that inherent power conferred on the High Courts under Section 482 CrPC has to be exercised sparingly with circumspection and in rare cases and that too to correct patent illegalities or when some miscarriage of justice is done. The content and scope of power under Section 482 CrPC were examined in considerable detail in Madhu Limaye v. State of Maharashtra [(1977) 4 SCC 551: 1978 SCC (Cri) 10: AIR 1978 SC 47] and it was held as under : (SCC p. 555, para 8) The following principles may be stated in relation to the exercise of the inherent power of the High Court:::: Downloaded on - 06/01/2024 20:33:09 :::CIS 7
(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.
8. In State v. Navjot Sandhu [(2003) 6 SCC 641: 2003 SCC (Cri) 1545] after a review of a large number of earlier decisions, it of was held as under : (SCC p. 657, para 29) "29. ... The inherent power is to be used only in cases where there is an abuse of the process of the court or rt where interference is absolutely necessary for securing the ends of justice. The inherent power must be exercised very sparingly as cases which require interference would be few and far between. The most common case where inherent jurisdiction is generally exercised is where criminal proceedings are required to be quashed because they are initiated illegally, vexatiously or without jurisdiction. Most of the cases set out hereinabove fall in this category. It must be remembered that the inherent power is not to be resorted to if there is a specific provision in the Code or any other enactment for redress of the grievance of the aggrieved party. This power should not be exercised against an express bar of law engrafted in any other provision of the Criminal Procedure Code. This power cannot be exercised as against an express bar in some other enactment."
9. In Arun Shankar Shukla v. State of U.P. [(1999) 6 SCC 146:
1999 SCC (Cri) 1076] the High Court had entertained a petition under Section 482 CrPC after an order of conviction had been passed by the Sessions Judge and before the sentence had been awarded and further proceedings in the case had been stayed. In appeal, this Court set aside the ::: Downloaded on - 06/01/2024 20:33:09 :::CIS 8 order of the High Court after reiterating the principle that it is well 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. It was further observed that the High Court overlooked the procedural law which empowered the convicted accused to prefer a statutory appeal against conviction of the offence and intervened at an uncalled for stage and soft-pedalled the course of justice at a very crucial stage of the trial. The order of the High Court was accordingly set aside on the ground that a petition under Section 482 CrPC could not have been entertained as the of accused had an alternative remedy of an appeal as provided in the Code. It is not necessary to burden this judgment with other decisions of this Court as the consistent view throughout has been that a petition under Section 482 CrPC cannot be rt entertained if there is any other specific provision in the Code of Criminal Procedure for redress of the grievance of the aggrieved party.
10. In the case in hand, the respondents-accused could apply 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 CrPC 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. It is important to note that no order adverse to the respondents-accused had been passed by any court nor was there any miscarriage of justice or any illegality. In such circumstances, the High Court committed a manifest error of law in entertaining a petition under Section 482 CrPC and issuing a direction to the subordinate court to accept the sureties and bail bonds for the offence under Section 304 IPC. The effect of the order passed by the High Court is that the accused after getting bail in an offence under Sections 324, 352 and 506 IPC on the very day on which they were taken into custody, got an order of bail in their favour even after the injured had succumbed to his injuries ::: Downloaded on - 06/01/2024 20:33:09 :::CIS 9 and the case had been converted into one under Section 304 IPC without any court examining the case on merits, as it stood after conversion of the offence. The procedure laid down for the grant of bail under Section 439 CrPC, though .
available to the respondents-accused, having not been availed of, the exercise of power by the High Court under Section 482 CrPC is clearly illegal and the impugned order passed by it has to be set aside." (Emphasis supplied)
10. Similarly, it was held in B.S. Joshi vs. State of Haryana 2003 4 SCC 675, that the High Court can quash the F.I.R. in non-
of compoundable offences based on compromise suggesting that the power under Section 482 of Cr.P.C. is not to be exercised in rt respect offences, which are compoundable under Section 320 of Cr.P.C. except in exceptional cases.
11. Reliance was placed upon the judgment of this Court in Ravi Sharma Vs. State of H.P. & another, 2021: HPHC: 7290, wherein this Court held that power under Section 482 of Cr.PC is not inhibited by the provisions of Section 320 of Cr.P.C. and can be exercised when it is necessary to do so to secure the ends of justice and prevent the abuse of the process of the Court.
12. In the present case nothing was suggested in the present petition as to why the parties cannot approach the learned Trial Court to seek the composition of the offences, rather it was stated that compromise has been arrived at on the mutual ::: Downloaded on - 06/01/2024 20:33:09 :::CIS 10 settlement between the parties with respect to the non-
compoundable offences, which is not correct as the offences are compoundable. It was also stated in para 8 of the petiton that .
there is no other alternative, efficacious and speedy remedy except to approach this Court when an alternative remedy under Section 320 of Cr.PC. is available. Hence, the present petition does of not disclose any special reason for invoking the extraordinary power under Section 482 of Cr.P.C. of this Court.
13. rt Sections 341, 323, 342 and 506 of IPC are compoundable offences without the permission of the Court under Section 320(1) of Cr.P.C. Therefore, it cannot be said that permission of the Court is required, which is not likely to be granted; thus, there exists no special reason to exercise the power vested in this Court under Section 482 of Cr.P.C.
14. The judgment in Prabhu Chawal's case (supra) will not assist the petitioner because the Hon'ble Supreme Court held that there is no bar for invoking the inherent power when an alternative remedy exists. There can be no dispute with this proposition of law. The question is not the lack of jurisdiction but ::: Downloaded on - 06/01/2024 20:33:09 :::CIS 11 whether such jurisdiction is to be exercised by the Court or not.
Thus no advantage can be derived from this judgment.
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15. In Ramgopal case's (Supra),the Hon'ble Supreme Court was concerned with the non-compoundable offence and held that Section 320 of Cr.P.C. will not be a bar for entertaining the petition under Section 482 of Cr.P.C. In Aashish Kumar(supra), this Court of never decided the question whether the inherent power should be exercised in view of the availability of an expressed provision.
Ranjeet Kumar
rt(supra) was concerned with the non-
compoundable offences punishable under Sections 363, 376, 212 and 120-B and Section 4 of Protection of Children from Sexual Offences Act and was not concerned with the compoundable offence. Hence, no advantage can be derived from this judgment.
In Ravi Sharma(supra), this Court held that power under Section 482 of Cr.P.C. can be exercised even if a case is covered under Section 320 of Cr.PC. if warranted in the given facts and circumstances of the case for securing ends of justice or preventing the process of the Court. Thus, it is apparent that this Court has also laid down that the power can be exercised under Section 482 of Cr.P.C. in the given facts and circumstances of the case, which means that the petitioner has to make out the case ::: Downloaded on - 06/01/2024 20:33:09 :::CIS 12 justifying the invocation of the power in view of the availability of the alternative remedy. Nothing was shown in the present case justifying the invocation of inherent power.Hence, none of these .
judgments assists the petitisoner.
16. Therefore, there is no reason to exercise extraordinary power under Section 482 of Cr.P.C. in the present case, when the of alternative remedy is available with the petitioner. Hence, the present petition fails and the same is dismissed.
17. rt The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 05th January,2024 (Ravinder) ::: Downloaded on - 06/01/2024 20:33:09 :::CIS