Patna High Court
Ajay Kumar Rana And Ors. vs State Of Bihar And Ors. on 22 March, 2002
Equivalent citations: 2002(2)BLJR914
Author: Chandramauli Kumar Prasad
Bench: Chandramauli Kumar Prasad
JUDGMENT Chandramauli Kumar Prasad, J.
1. In these writ applications, common question of law and facts arise and as such, they are being decided by this common order.
2. Petitioners filed revision applications under Section 399 read with Section 397 of the Code of Criminal Procedure (hereinafter referred to as the Code, aggrieved by the orders passed by the learned Magistrate. All the revision applications have been dismissed and aggrieved by the same, present writ applications have been filed.
3. Stamp Reporter took an objection to the maintainability of the writ applications under Article 226 of the Constitution of India and opined that same require to be converted into criminal miscellaneous applications under Section 482 of the Code of Criminal Procedure. Objections pointed to by the Stamp Reporter was placed for consideration before the Court where it was observed that the maintainability matter shall be considered at the time of admission. Writ applications were thereafter placed for admission and hence, the question of maintainability of writ applications requires determination at my hand.
4. It is the stand of the petitioners that revision applications filed by them having been dismissed by the Sessions Judge, no further revision lies at their instance in view of the Bar put under Section 397(3) of the Code and as such, the petitioners, have no further remedy of revision. Hence, only option to them is to invoke the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, which confers on this Court the powers to issue prerogative writs and other directions as also the power of superintendence of all subordinate Courts.
5. Mr. S.D. Yadav, learned Government Advocate, appearing on behalf of the State, however, submits that the petitioners have remedy to assail the impugned orders in an application under Section 482 of the Code and as such, writ applications are not maintainable.
6. Having given my most anxious consideration to the rival submissions, neither on principle nor on precedents, I am inclined to accept the submission of Sri Madhup.
7. Section 397 of the Code confers power on the High Court and the Sessions Judge to call for and examine the record of any proceeding before any inferior criminal Court for satisfying itself as to the correctness, legality or propriety of any finding, sentence or order. Section 399 of the Code confers power of revision to the Sessions Judge and contemplates that he can exercise all or any of the powers which may be exercised by the High Court under revision. Section 397(3) of the Code further provides that, in case, an application under the said section, has been filed by any person to the Sessions Judge, no further application by the same person shall be entertained. Section 482 of the Code saves the inherent powers of this Court and in specific terms, it provides that nothing in the 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 the Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Thus, a very wide and extra ordinary power is possessed by this Court under Section 482 of the Code to make such 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. In the face of the aforesaid provision, I am of the opinion that the rider put under Section 397(3) of the Code prohibiting the remedy of revision at the instance of the same person, who has filed revision application for exercising jurisdiction under Section 482 of the Code, in case where making of an order may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or to secure the ends of justice, does not apply.
8. In fact, the question involved in the present case is not res intergra and has come up for decision before the Court as also the Supreme Court on several occasions. In the case of Surendra Singh and Ors. v. State of Bihar and Ors. (1990) 2 PLJR 693, five Judges' bench of this Court had the occasion to consider as to whether an application filed under Section 482 of the Code would be maintainable in a case where revision application has been dismissed by the Sessions Judge preferred under Section 397(1) of the Code in view of the prohibition put under Section 397(3) of the Code. In the said case, it was held that an application under Section 482 of the Code, shall not be maintainable and the only remedy available is to invoke the power of this Court under Article 227 of the Constitution of India, which can be exercised in exceptional cases. However, in the said case, in which the remedy under Section 482 of the Code is available, there is no question of exercise of power under Article 227 of the Constitution of India. Relevant portion of the judgment in the said case is being reproduced below:
16. But, there may be three situations under which the power under Article 227 may be invoked. Firstly, where no appeal or revision has been provided against the order in question. Secondly, where the person aggrieved has already filed a revision application before Sessions Judge and his revision application to this Court against the order passed by the Sessions Judge is barred under Section 397(3) of the Code. The third eventuality may be where although a revision application or an application under Section 482 of the Code is maintainable before this Court, still an application under Article 227 is filed. In my view, there is no question of exercise of power under Article 227 in the third category of cases, the remedy being available to petitioners under the provisions of the Code itself. So far cases falling in the first category i.e., where no appeal or revision has been provided, as has been said by Supreme Court, it will require an exceptional cases before power under Article 227 is to be exercised. In respect of case coming under second category, i.e. where revision applications have already been dismissed by the Sessions Judge, and bar under Section 397(3) is applicable, for interference under Article 227, very exceptional circumstances must exist in view of the judgment of the Supreme Court in the case of Jagir Singh (supra).
17. Accordingly, I am of the view:
(i) Judicial orders passed by the criminal Courts are amendable to the jurisdiction of the High Court under Article 227 of the Constitution.
(ii) Where appeals or revision applications or applications under Section 482 of the Code are maintainable before this Court for setting aside such orders there is no question of exercise of power under Article 227.
(iii) Where appeals or revision applications or applications under Section 482 of the Code cannot be entertained by this Court for setting aside such orders, power under Article 227 can be exercised in exceptional case.
(iv) Where petitioner has already invoked the revisional jurisdiction of the Sessions Judge under Section 397 of the Code and his second revision application to this Court is barred under Section 397(3), it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of the superintendence is not meant to circumvent the statutory bar.
From a reading of the judgment of Surendra Singh (supra), it is evident that when an application under Section 482 of the Code is maintainable, in that case, jurisdiction under Article 227 of the Constitution of India, cannot be exercised. This necessitates examination of the question as to whether an application under Section 482 of the Code would be maintainable at the instance of the same party whose revision application has been dismissed by the Sessions Judge. I have referred to the provisions of Section 482 of the Code and on principle, I have held that there is no rider put for exercise of inherent power under Section 482 of the Code. However, it would be apt to refer to the authorities on this question.
9. Mr. Madhup has placed reliance on the judgments of the Supreme Court in the cases of State of Harayana and Ors. v. Ch. Bhajan Lal and Ors. ; Amaranth and others v. State of Harayana and Ors. ; Dharampal and Ors. v. Smt. Ramshri and Ors. ; Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. (1998) 6 SCC 749, of Rajasthan High Court in the case of Mohan Lal. State of Rajasthan 1995 Cr.L.J. 2403 and this Court in the case of Eqbal Atam and Anr. v. State of Bihar and Anr. 2000 (1) PUR 56, in support of his submission.
10. In the case of State of Harayana and Ors. v. Ch. Bhajan Lal and Ors. (supra), the Supreme Court gave guidelines in which the extra ordinary power under Article 226 or the inherent power under Section 482 of the Code, could be exercised. It observed that the power under Article 226 of the Constitution and the inherent power under Section 482 of the Code, could be exercised either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Relevant portion of the judgment of the Supreme Court in the said case reads as follows:
108. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extra-ordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of process of any Court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formula and to give an exhaustive list of myried kind of cases wherein such power should be exercised.
(1) Where the allegation made in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirely do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the First Information Report and other materials, if any, accompanying the FIR do not disclose a cognizable offence justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegation made in the FIR or complaint and the evidence collected in support of the same do hot disclose the commission of any offence and make but a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can even reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.
Thus, in the aforesaid case, the Supreme Court had given an inflexible guideline for exercise of power under Article 226 of the Constitution or under Section 482 of the Code, but have not gone into the question as to whether in a case in which remedy under Section 482 of the Code is available, remedy under Articles 226 and 227 of the Constitution of India, can be exercised and hence, this authority does not in any way advances the case of the petitioners.
11. In the case of Amaranth and Ors. v. State of Harayana and Ors. (supra), two Judges, bench of the Supreme Court held as follows:
3. 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-section (2) of Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2). Section 482 of the 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 contraction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 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 matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers.
12. In this case, the Supreme Court was considering the bar put under Section 397(2) vis-a-vis exercise of power under Section 482 of the Code. Section 397(2) of the Code pertains to the power of revision in respect of interlocutory order. In the case, in hand, I am concerned with the bar put under Section 397(3) of the Code and not Section 397(2) and as such, this authority is clearly distinguishable.
13. In the case of Dharampal and Ors. v. Smt Ramshri and Ors. (supra), the two Judges1 bench decision of the Supreme Court held that when a revision application has been dismissed by the Sessions Court, second application for revision at the instance of the same person before the High Court is not maintainable and such orders cannot be interfered with in exercise of the powers under Section 482 of the Code. In the said case, it has been held as follows:
4. The Sessions Judge has dismissed the said application on 14th May, 1979. Section 397(3) bans a second revision application by the same party. It is now well-settled that the inherent power under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence, the High Court had fairly 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.
14. A learned Single Judge of Rajasthan High Court, in the case of Mohan Lal v. State of Rajasthan (supra) held as follows:
5. xxx These miscellaneous petitions, filed by the petitioner, are nothing but the second revision petitions and merely by changing the nomenclature the statutory bar of Section 397(3) Cr.P.C. cannot be over come and the powers under Section 482, Cr.P.C. cannot be utilised for exercising the powers which are expressly barred by the provisions of Sub-section (3) of Section 397, Cr.P.C. The powers under Section 482, Cr.P.C. can be exercised only when it is necessary to make such order the give effect to any order passed under the Code or to prevent the abuse of the process of the Court or otherwise to secure the ends of justice. None of the conditions, envisaged for the exercise of the powers under Section 482, Cr.P.C. are present in the case and, therefore, the inherent powers under Section 482, Cr.P.C. can not be used in these miscellaneous petitions. It has been held by the Apex Court in Rajan Kumar Machananda v. The State of Karanataka 1990 Cr. IR SC 60 that merely by saying that the jurisdiction of the High Court for exercise of its inherent powers was being invoked, the statutory bar could not have been over-come. If that would have been permitted, every revision facing the bar of Section 397(3), Cr.P.C. could be labelled as a petition under Section 482, Cr.P.C The same view has been reiterated by the Apex Court in the case of Dharampal v. Ramshri , and it has been observed by the Apex Court that 'it is now, well-settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising the powers which are expressly barred by the Code. The petitions, filed by the petitioner, are nothing but revision petitions though the nomenclature given to them is the miscellaneous petitions' and as such they are not maintainable in view of Sub-section (3) of Section 397, Cr.P.C. The preliminary objection, raised by the learned Counsel for the Bank is, therefore, sustainable.
15. A learned Single Judge of this Court, in the case of Eqbal Alam and Anr. v. State of Bihar and Anr. (supra), has held that an application under Section 482 of the Code to set aside the order of cognizance passed by the Magistrate and thereafter dismissed in revision by the Sessions Court, is not maintainable. In the said case, it has been held as follows:
5. xxx I am afraid, the proposition laid down therein is not relevant in the present context. The same did not deal with the question in hand, namely, whether or not a revision application under the inherent powers of the Court would be maintainable before the High Court after the same cause of action has got defeated before the Sessions Judge in revisional jurisdiction. The said judgment dealt with a different question namely, in view of the bar created by Section 397(2) of the Code to the effect that interlocutory orders cannot be challenged before the High Court in criminal revisional jurisdiction, can or cannot the same be agitated before the High Court under the inherent powers. The Supreme Court has held that in extra-ordinary circumstances, and in the interest of justice, such an application under the inherent powers of the Court would be maintainable even in the case of interlocutory orders faced with the bar created by Section 397(2) of the Code. I therefore, conclude that the present application in substance being the second attempt on the part of the petitioners to challenge the aforesaid order of cognizance dated 1.10.1992, must be held as not maintainable.
16. A three Judges' Bench of the Supreme Court had the occasion to consider the effect of bar under Section 397(3) of the Code in the case of Krishnan and anotherv. Krishnaveni and Anr. and after over ruling its earlier decision in the case of Dharampal (supra) it held as follows:
14. 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 as it is 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. We make it clear that we have not gone into the merits of the case. Since the High Court has left the matter to be considered by the Magistrate, it would be inappropriate at this stage to go into that question. We have only considered the issue of power and jurisdiction of the High Court in the context of the revisional power under Section 397(1) read with Section 397(3) and the inherent powers. We do not find any justification warranting interference in the appeal.
17. In view of the three Judges' bench decision of the Supreme Court in the case of Krishnan (supra), I have no hesitation in holding that when revision before the High Court under Sub-section (1) of Section 397 of the Code is prohibited by Sub-section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code. The circumstances under which such inherent power deserves to be exercised, is a different question but to say that applications under Section 482 of the Code, is not maintainable at the instance of the same party who had invoked the revisional jurisdiction of the Sessions Court, is not the correct position of law and the decisions holding the contrary view in the case of Surendra Singh (supra), Dharampal (supra), Mohan Lal (supra) and Eqbal Alam (surpa), no longer hold the field in view of three Judges' bench decision of the Supreme Court in the case of Krishnan (supra).
18. Having held that remedy under Section 482 of the Code is available, the next question which falls for determination is as to whether in such a case, an application either under Article 226 and 227 of the Constitution is maintainable. It is settled that remedy of writ application under Articles 226 and 227 of the a remedy of last resort and a litigant is permitted to invoke said remedy when it is found that no other efficacious remedy is available to him. The power conferred on the High Court under Articles 226 and 227 of the Constitution of India and under Section 482 of the Code, have no limits. Hence, in a case where remedy under Articles 226 and 227 of the Constitution is available as also the remedy under Section 482 of the Code, a litigant has to necessarily invoke the jurisdiction of this Court under Section 482 of the Code and application under Articles 226 and 227 of the Constitution, would not appropriate remedy.
19. The view I have taken finds support from the judgment of the Supreme Court in the case of Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. , wherein it has been observed as follows:
22. The power conferred on the High Court under Articles 226 and 227 of the Constitution and under Section 482 of the Code, have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to.
20. This is also in tune with Five Judges Special Bench decision of this Court in the case of Surendra Singh (supra).
21. It is difficult to comprehend a case in which complete justice cannot be done in exercise of the power under Section 482 of the Code and can be done in exercise of the power under Articles 226 and 227 of the Constitution of India but in a case where such a contingency arises in the application under Section 482 of the Code, nothing shall prevent this Court to exercise the power under Articles 226 and 227 of the Constitution of India as it is well-settled that power conferred under Articles 226 and 227 of the Constitution of India, cannot be curtailed by any legislation. However, a word of caution needs to be added. More the power, more care and caution is to be exercised while invoking these powers.
22. In view of the decisions aforesaid, I have no hesitation in sustaining the report of the Stamp Reporter that the applications filed under Articles 226 and 227 of the Constitution of India, are not maintainable and the remedy to the petitioners is to file an application under Section 482 of the Code.
23. Accordingly, I dismiss these writ applications. However, dismissal of these writ applications shall not preclude the petitioners from invoking the remedy under Section 482 of the Code.