Orissa High Court
Kasinath Biswal And Ors. vs Hina Bhoi on 21 October, 1986
Equivalent citations: 1986(II)OLR548
JUDGMENT G.B. Pattnaik, J.
1. This revision which has been referred to Division Bench by a learned Single Judge of this Court raises an important question of law, namely, whether the inherent jurisdiction of the High Court Under Section 482 of the Code of Criminal Procedure (hereinafter referred to as the "Code") can be exercised not withstanding the bar contained in Section 397(3) of the Code in a second revision where the aggrieved party has already approached the Sessions judge in revision, Even though the learned Single Judge who had referred the matter to the Division Bench was prima facie of the view that in appropriate cases, the powers Under Section 482 of the Code can be exercised to prevent the abuse of the process of Court or otherwise to secure the ends of justice, yet in view of a Bench decision of this Court reported in 41 (1975) CLT, 656, he thought it appropriate that the matter should be referred to a Division Bench.
2. The petitioners are the accused persons against whom the Sub-Divisional Judicial Magistrate has taken cognisance of offences Under Sections 302/323/34, Indian Penal Code The petitioners preferred a Criminal Revision to the Sessions Judge, Puri. and the learned Sessions Judge by order dated 15th of December, 1979, has dismissed the revision. The petitioners thereafter have filed the present revision invoking the jurisdiction of this Court Under Section 482 of the Code.
3. Before the learned Single Judge, Mr R. K. Mohapatra appearing for the opposite party had raised two preliminary objections, namely (i) the order taking cognisance is an interlocutory order and, therefore, the revision is not maintainable as contemplated Under Section 397(2) of the Code, and (iii) the revision having been filed before the Sessions Judge and the Sessions Judge having refused to interfere with the order of cognisance, a second revision does not lie in view of Section 397(3) of the Code and further since a second revision is prohibited under the Code, the High Court cannot exercise its inherent jurisdiction Under Section 482 of the Code. But before the Division Bench Mr. Mohapatra did not raise his objection on the ground of non-maintainability of a revision as the order taking cognisance is an interlocutory order, but reiterated his second ground of objection.
4. Mr. P. K. Misra, the learned counsel for the petitioners, on the other hand, has submitted that the inherent power of the Court is a power not conferred by the Code but it inheres in the Court which has been recognised by the Code and, therefore, where the High Court on the materials comes to the conclusion that there has been a gross abuse of the process of the Court or it is necessary to secure the ends of justice, then notwithstanding the limitations contained in Section 397 of the Code, the High Court can interfere and should interfere. The rival submissions requite careful examination of several authorities cited by either party.
5. Mr. R. K. Mohapatra, the learned counsel for the opposite party, mainly places reliance on the decision of the. Supreme Court in the case of Amarnath and Ors. v. State of Haryana and others, AIR 1977 Supreme Court, 2185 the Bench decision of this Court in the case of Deena Nath Acharya v. Daitari Charan Patra and others. 41(1975) CLT 656 and some other decisions to which reference will be made hereinafter and also strenuously argues on the legislative intent in prohibiting a second revision, as contained in Section 397(3) of the Code. No doubt, the aforesaid decisions support the contention of Mr. Mohapatra, the learned counsel for the opposite party, to a great extent, but in view of the later decisions of the Supreme Court where the aforesaid decision of the Supreme Court in Amarnath's case (AIR 1977 S. C. 2185) has also been noticed, in our opinion the contention of Mr. Mohapatra cannot be sustained in a broad form. According to the learned counsel, the express bar contained in Sub-section (3) of Section 397 ot the Code cannot be defeated by taking recourse to a subterfuge of Invoking the inherent jurisdiction Under Section 482, and what cannot be directly achieved cannot be permitted to be achieved by indirect means. The learned counsel further urges that the inherent powers of the High Court Under Section 482 should not be exercised in order to circmvent the provision of Section 397(3) of the Code.
6. It is too well-settled that every Court, whether Civil or Criminal, in the absence of express provision in the Code for the purpose, must be deemed to possess a power inherent in its very constitution which is necessary to do the right and to undo a wrong in course of the administration of justice. The High Court, in view of its general jurisdiction over all the Criminal Courts subordinate to it possesses this inherent power to prevent the abuse of process of any Court or to secure the ends of justice. But at the same time, the said power is in its nature extraordinary in character and ought not to be exercised arbitrarily, but has to be exercised to do the real and substantial justice for the administration of which alone the Courts exists. Section 482 merely preserves the inherent powers of the Court without conferring any additional power. The inherent power of the High Court is very wide and undefinable and, therefore, the limits of such power have to be carefully guarded. This power is recognised to meet those cases for which no provision in the Code has been made. The import and scope of the inherent power of the High Court has been very succinctly pointed out by Gajendragadkar, J. as he then was, in the case of R. P. Kapur v. State of Punjab, AIR 1960 Supreme Court 866, and it would be profitable to extract a passage from the said judgment :
"Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court Under Section 561-A of the Code. The said section saves the inherent power 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. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the Magistrate before whom the police report has been filed Under Section 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well-established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises, it is a matter merely of looking at the complainant or the First Information Report to decide whether offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal Court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestlly fails to prove the charge In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question In exercising its jurisdiction Under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent juris diction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained Broadly stated, that is the nature and scope of the inherent jurisdiction of the High Court Under Section 561-A in. the matter of quashing criminal proceedings, and that is the effect of the judicial decisions on the point..."
The power Under Section 482 of the new Code is the same as that provided for in Section 561-A of the old Code which has been discussed in the aforesaid judgment.
7. We shall now note the authorities cited at the Bar. In the case of Bhima Naik and 9 others v. State, 41(1975) CLT 674, a Bench of this Court was examining as to what is an interlocutory order and also, whether in view of the bar of entertaining a revision in case of an interlocutory order Under Section 397(2) of the Code, can this Court interfere with the same in exercise of its inherent jurisdiction Under Section 482 of the Code. The learned Judges after examining the scope and import of the inherent power of the High Court and relying upon the decision in R. P. Kapur's case (AIR 1960 S. C. 866) came to the conclusion :
"If Section 397(2) had not been on the statute book R. P. Kapur v. State of Punjab, AIR 1960 S.C. 866, would be clear authority to invoke the power Under Section 482 for quashing the impugned order, but those two very supreme Court decisions lay down that inherent powers cannot be invoked contrary to specific provisions of the Code. In view of the specific provision of the Code Under Section 397(2) the inherent power Under Section 482 cannot be invoked even in respect of instances illustratively given in R. P. Kapur v. State of Punjab, AIR 1960 S. C. 866.
The result of the aforesaid discussion is that Section 482 of the new Code cannot be invoked to quash interlocutory orders in view of the positive ban imposed by Section 397(2)."
Undoubtedly, the aforesaid Bench decision supports fully the arguments advanced by Mr. Mohapatra, the learned counsel for the opposite party.
The next relevant decision on the point is the decision of the Supreme Court in Amar Nath's case (AIR 1977 S. C. 2185). In paragraph 3 of the said judgment, Their Lordships held :
"While we fully agree with the view taken by the (earned 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 construction, of Secs; 397 and 482 would lead to the irresistible, conclusion that where a pat titular 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."
The aforesaid enunciation of law made by the Supreme Court also supports Mr. Mohapatra's contention.
A learned Single Judge of the Delhi High Court in the case of Shariffuddin Haji Noor Baksh v. State, 1977 Cri. L. J., 1054, has also taken a similar view. It has been held in the said case that the inherent power of the High Court cannot be exercised to override a statutory provision containing a clear prohibition. The learned Judge also came to the conclusion that where the dismissal of a revision petition by the Additional Sessions Judge is within the four corners of Section 397, instead of giving effect to that dismissal the ultimate part in Section 482 could not be used as a substitute for the revisional jurisdiction the exercise whereof by the Court is barred by Sub-section (3) of Section 379, and, therefore, in such a case, inherent power of the High Court could not be exercised A learned Single Judge of the Patna High Court has considered the effect of bar of a second revision contained in Section 397(3) vis-a-vis the power Under Section 482 in the case of Chandra Kafia Devi v. The State of Bihar and another, 1980 Cri. L. J, 329, and came to the conclusion :
"......In effect the petitioner seeks to invoke the revisional jurisdiction of this Court, although she has labelled her petition as one Under Section 482 of the Cr. P. C. The law does not permit her to circumvent the law by changing the label of her petition. I am also doubtful if the petitioner could invoke the inherent jurisdiction of this Court in this matter. The law is well-settled, that inherent jurisdiction of the Court cannot be exercised as against the express bar of law engrafted in any other provision of the Code. The bar in the instant case has been provided under Sub-section(3)of Section 397 of the Code. Therefore, I think that the petitioner cannot invoke the inherent jurisdiction of this Court for the relief claimed by her. ......"
The learned Judge of the Patna High Court relied upon the decision of the Supreme Court in the case of Jagir Singh v. Ranbir Singh (AIR 1979 S. C. 381).
In the case of T. V. Kannan v. Karthyayani, ILR 1978 (2) Kerala 563, a learned Single Judge of the Kerala High Court also considered the scope of Section 482 of the Code vis-a-vis the prohibition contained in Section 397(2) (2) and (3) of the Code. The learned Judge has observed that in the new Code, there is a new provision Under Section 397 which clearly prohibits a second revision application by the same person if he has already made an application under the section either to the High Court or to the Sessions judge. Under Section 393(3) of the new Code, it has been made clear that where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such person shall be entertained by the High Court or any other Court. It was also held that the bar Under Section 397(2) of the new Code cannot be got over by invoking the power Under Section 482, While so saying, the learned Judge has also observed that if it is shown that the views taken by the Courts below are manifestly illegal or the decision is one without jurisdiction or so absurd or so shocking to the judicial conscience, then the High Court can exercise the inherent power vested Under Section 482. Thus, the aforesaid decision of the Kerala High Court does not fully support the contention of Mr. Mohapatra, though it supports to a great extent.
The only other decision which to some extent supports the contention of Mr. Mohapatra for the opposite party and on which the learned counsel places much reliance is the decision of the Supreme Court in Jagir Singh's case (AIR 1979 S. C. 381). But in that case, the Supreme Court was not considering the point as to whether in view of the bar contained in Sub-section (3) of Section 397, the High Court can exercise its inherent power and if so under what circumstances. The Supreme Court was merely enunciating the object of Section 397(3) of the Code. Against the order of the Magistrate, a revision had been preferred to the Sessions Judge and on Sessions Judge's refusal, the matter had come to the High Court and in that context, the Supreme Court was examining the prohibition contained in Sub-section (3) of Section 397. It was held :
"The object of Section 397(3) is clear. It is to prevent a multiple exercise of revisional powers and to secure early finality to orders. Any person aggrieved by an order of an inferior criminal Court is given the, option to approach either the Sessions Judge or the High Court and once he exercises the option he is precluded from invoking the revisional jurisdiction of the other authority. The language of Section 397(3) is clear and peremptory and it does not admit of any other interpretation ...."
Thus it is clear that the Supreme Court in the aforesaid case has not at all considered the scope and import of Section 482 of the Code ana accordingly, the said decision cannot be said to be an authority in support of the contention of Mr. Mohapatra.
8. The Bench decision of this Court in Bhima Naik's case [41(1975) CLT 674] as well as the decision of the Supreme Court in Amar Nath's case (AIR 1977 S. C. 2185), referred to supra, must be taken to have been diluted by the subsequent authorities of the Supreme Court and the first decision is the case of Madhu Limaye v. State of Maharashtra, AIR 1978 S. C. 47. In paragraph 6 of the judgment, it has been held :
" The point which falls for determination in this appeal is squarely covered by a decision of this Court, to which one of us (Untwa ia, J.) was a party in Amar Nath v. State of Haryana, Criminal Appeal No. 124 of 1977 decided on the 29th July, 1977 : (Reported in AIR 1977 S. C. 2185). But on a careful consideration of the matter and on hearing learned counsel for the parties in this appeal we thought it advisable to enunciate and reiterate the view taken by two learned Judges of this Court in Amar Nath's case but in a somewhat modified and modulated form. ...
(Underlining is ours) After pointing out the decision of the Supreme Court in Amar Nath's case, Their Lordships observed :
"As pointed out in Amar Nath's case (AIR 1977 S. C. 2185) (supra) the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, enquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The Legislature in its wisdom decided to check this delay by introducing Sub-section (2) in Section 397., On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge ) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include Sub-section (2) of Section 397 also, shall be deemed to limit or affect the inherent powers of the High Court But if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in Sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order, Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly . brings about a situation which is an abuse of the process of the Court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution' is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and after his acquittal a second trial after proper sanction will not be barred on the doctrine of autrefo is acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognisance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot' be exercised for stopping the criminal proceeding as early as possible, instead, of harassing the accused upto the1 end ? The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/ or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for-exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible."
It is this modification and modulation of Amar Nath's case, as has been done in Madhu Limaye's case, which lays down the correct position of law and which has also been followed in later Supreme Court decisions explaining the amplitude of the power of the High Court Under Section 482 of the Code and also how far the prohibition contained in Section 397 operates as a bar from invoking the inherent jurisdiction of the Court. The learned Judges in Madhu Limaye's case thereafter quoted a passage from the judgment of Gajendragadkar, J. in R. P. Kapur's case (AIR 1960 S. C. 866) and observed :
"We think the law stated above is not affected by Section 397(2) of the new Code. It still holds good in accordance with Section 482"
The next decision of the Supreme Court is the case of Raj Kapoor and Ors. v. State (Delhi Administration and others), AIR 1980 S. C. 258, wherein the Supreme Court examined the provisions contained in Sections 397 and 482 of the Code and following the earlier decision in Mahdu Limaye's case (AIR 1978 S. C. 47 ) held ;
"...The opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law, when a specific provision is made easy resort to inherent power is not right except under compelling Circumstances. Not that there is absence of jurisdiction but that inherent power should not invade are as set apart for specific power under the same Code. In Madhu Limaye's case AIR 1978 S. C. 47 this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake........."
It was then observed after quoting a passage from Madhu Limaye's case :
"In short there is no total ban. on the exercise of inherent power where abuse of the process of the Court or other extraordinary situation excites the Court's jurisdiction; The limitation is self-restraint, nothing more. The policy of the law is dear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered In exercise of inherent power, if glaring injustice stares the Court in the face.....,."
Another decision of the Supreme Court which need be noted is the decision in Municipal Corporation of Delhi v. Ram Kishan Rohtagr and others, AIR 1983 S. C. 67, where also Madhu Limaye's case has been quoted with approval and the teamed Judges held :
"After the coming Into force of the Code of Criminal Procedure 1973 (hereinafter referred to as the 'present Code'), there was a serious divergence of judicial opinion on the question as to whether where a power is exercised Under Section 397 of the present Code, the High Court could exercise those very powers Under Section 482 of the present Code. It is true that Section 397(2) clearly bars the jurisdiction of the Court in respect of interlocutory orders passed in appeal, enquiry or other proceedings. The matter Is, however, no longer res Integra as the entire controversy has been set at rest by a decision of this Court in Madhu Limaye v. State of Maharashtra, (1978) 1 SCR 749 : (AIR 1978 SC 47) where this Court pointed out that Section 482 of the present Code had a different parameter and was a provision independent of Section 397(2). This Court further held that while Section 397(2) applied to the exercise of revisional powers of the High Court, Section 482 regulated and the inherent powers of the Court to pass orders necessary in order to prevent the abuse of the process of the Court......."
The learned Judges further observed :
" It may be noticed that Section 482 of the present Code is the ad verbatim copy of Section 561-A of the old Code. This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitae in cases where grave and substantial injustice has been done or where the process of the Court has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by subordinate Courts. It was under this section that in the old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or subordinate Courts. Thus, the scope, ambit and range of Section 361A (which is now Section 482) is quite different from the powers conferred by the present Code under the provisions of Section 397 It may be that in some cases there may be overlapping but such cases would be few and far between. It is well-settled that the inherent powers Under Section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly. If these considerations are kept in mind, there will be no inconsistency between Sections 482 and 397(2) of the present Code."
In this case also, the decision of Krishna Iyer, J. in Raj Kapoor's case (AIR 1980 S. C. 258) was quoted with approval.
9. It may be noted that in the Municipal Corporation's case (AIR 1983 S. C, 67) the judgment has been delivered by Fazal Ali, J. who had also delivered the judgment in Amar Nath's case (AIR 1977 S. C. 2185) and who relied upon the modification and modulation of Amar Nath's case as was done in Madhu Limaye's case (AIR 1978 SC 47). in view of the authoritative pronouncements of the Supreme Court in the aforesaid three cases, though it is not necessary to discuss at length the other decisions In the same line, but it may not be out of place to note some of the decisions on the point.
In the case of In re. Puritipati Jagga Reddy, AIR 1979 Andhra Pradesh, 146, a Full Bench of the Andhra Pradesh High Court harmonized the provisions contained in Sections 397(3) and 482 of the Code in the following manner:
"Our review of the material provisions of the Code, particularly that of Sub-section (3) of Section 397 would show that there is no express bar of law engrafted either in that provision or any where else in the Code against the High Court exercising its inherent powers. Therefore, it follows that the High Court can exercise its power Under Section 482, Cr. P. C, if it is satisfied that there has been abuse of process,of the Court or that it is necessary to interfere in order to secure the ends of justice......."
In another place of the same judgment, Their Lordships held :
"...We have already pointed out that the High Court can exercise its inherent powers where that exercise is warranted irrespective of the manner in which the matter has been brought to its notice, Therefore, a party who has been unsuccessful before the Sessions Judge, may seek to bring it to the notice of the High Court Under Section 482, Cr. P, C. But that shall not be automatically taken notice of by the High Court. It must be scrutinised and examined whether there has been miscarriage of justice in any particular case before it entertains any such petition filed by an unsuccessful party. The best course would be to place the matter before the Court for admission and at the time of such admission, the Court must be prima facie satisfied before it admits that there has been abuse of the process of any Court or that the High Court's interference would 6e warranted in the ends of justice ....."
A learned Single judge of this Court in the case of P. Chiranjivi v. Principal, M. K. C. G. Medical College Berhampur and another, 47( 1979) CLT, 126; overruled a preliminary objection like the present one raised by Mr Mohapatra, for the opposite party and held :
"It must be noticed that the revisional application to this Cout has been filed Under Section 482 of the Code of Criminal Procedure which provides that nothing in this Code (which would include Sub-sections (2) and (3) of Section 397), 'shall be deemed to limit or affect the inherent powers of the High Court." Thus, if a situation arises calling for exercise of this inherent jurisdiction of this Court, nothing in Section 397 bars such exercise......."
The learned Single Judge relied upon the decision of the Supreme Court in Madhu Limaye's case (AIR 1978 S. C. 47).
In the case of Mala Mohan Rao v. The Principal, M. K. C. G. Medical College, Berhampur and others, 46(1978) CLT 408, another learned Single Judge of this Court rejected the preliminary objection of non-maintainability of the revision raised by the learned Additional Standing Counsel and held that the High Court could entertain an application Under Section 482 of the Code. The Seamed Judge observed :
"The learned Additional Standing Counsel contends that no second revision lies and as the petitioner had once moved the Sessions Judge, this revision is not maintainable. The learned Sessions Judge has held that the revision before him was against an interlocutory order and as such, he has no jurisdiction to entertain the revision. Undisputedly the Sessions Judge was not entitled to exercise inherent jurisdiction. It is only this Court which can exercise such jurisdiction. If the decision of the Sessions Judge is wrong in law, this Court can also examine it in exercise of its jurisdiction Under Section 482 of the Code of Criminal Procedure and can interfere. It is not disputed that the judgment of the learned Sessions Judge holding that the impugned order is an interlocutory order and is not open for revision, is wrong in law, as this question is no longer res integra in view of the decision of the Supreme Court in Madhu Limaye v. State of Maharashtra; AIR 1978 S. C. 47. Therefore, this Court can exercise its jurisdiction Under Section 482, Criminal Procedure Code to correct the decision. The contention raised by the learned Additional Standing Counsel is not tenable. In these circumstances, I hold that this revision is maintainable and the petitioner has invoked the inherent powers of this Court Under Section 482, Criminal Procedure Code. ......"
A Bench of the Allahabad High Court in the case of Ram Prasad and Ors. v. Abdul Khalig and others, 1960 All L. J. 921, relying upon Madhu Limaye's case (supra) has held that though a party, which is unsuccessful in a revision before the Sessions Judge, is precluded from filing a second revision in the High Court by virtue of the provisions of Section 397(3) of the Code, yet the High Court can exercise its inherent powers where that exercise is warranted irrespective of the manner in which the matter has been brought to the notice of the High Court. The party which has been unsuccessful in revision filed before the Sessions Judge may seek to bring the matter to the notice of the High Court Under Section 482 of the Code and the High Court can in appropriate cases, remedy the wrong done by a subordinate Court, if the conditions laid down by Section 482 of the Code exists.
Another learned Single Judge of this Court considered the matter again in the case of Dinesh Kumar Jajodia and Anr. v. M/s. State Co-operative Marketing Federation Ltd. Bhubaneswar, 1984(1) OLR 432, and held :
"The inherent jurisdiction of the Court is to be exercised to prevent an abuse of the process of the Court or for the ends of justice. The petitioners, after unsuccessfully moving the Court of Session, have prayed for the exercise of the inherent jurisdiction of this Court because a second revision by the same party does not lie. A statutory bar contained in Section 397(2) of the Code barring a criminal revision against 'an interlocutory order or the provision contained in Section 397(3) of the Code barring a second criminal revision by the same person may not stand in the way of the exercise of the inherent jurisdiction of this Court Under Section 482 of the Code. This power is, however, to be exercised in rare and exceptional cases where it is necessary in the interests of justice..."
In the case of Ishwar Dayal Singh and Anr. v. The State of Bihar, 1980 Bihar Bar Council Journal 436, a learned Single Judge of the Patna High Court overruled the preliminary objection of non-maintainability of an application Under Section 482 of the Code because of the restrictions contained in Sub-section (3) of Section 397 of the Code and has held that where the order taking cognisance by a Magistrate is found to be palpably erroneous and the High Court comes to the conclusion that there will be an abuse of the process of the Court, then the High Court can exercise its power Under Section 482, even though the accused has been unsuccessful in revision before the learned Sessions Judge and in such a case Section 397(3) cannot stand as a bar.
10. In our considered opinion, therefore, in view of the decision of the Supreme Court in Madhu Limaye's case (AIR1978 Supreme Court 47) which has been followed in Raj Kapoor's case (AIR 1980 Supreme Court 258) as well as in Municipal Corporation's case (AIR 1983 Supreme Court 67 .. referred to earlier, the preliminary objection raised on behalf of Mr. Mohapatra appearing for the opposite party cannot be sustained. Mr. Mohapatra, the learned counsel for the 'opposite party then urges that in Madhu Limaye's case, the Supreme Court was considering the parameters of Section 482 vis-a-vis Section 397(2) and Section 397(3) of the Code and then places reliance on the decision of a learned Single Judge of the Delhi High Court in the case of State (Delhi Administration), Delhi v. Kumari Tukkanna and others, 1984 Cri. L J. 1866.. It is no doubt true that in the aforesaid Delhi case, the learned Single Judge categorically held that power Under Section 482 could not be invoked against express bar engrafted Under Section 397(3), but in bur opinion that cannot be said to be the correct legal position in" view of the decision of the Supreme Court in Raj Kapoor's case (AIR 1980 S. C. 258), where Justice Krishna Iyer in no uncertain term has declared that "nothing in the Code, nor even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482". Thus, whether it is the prohibition under Sub-section (2) or Sub-section (3) of Section 397, it stands on the same footing while considering the parameters of Section 482 and, therefore, we are not in a position to agree with the judgment of the learned Single Judge of the Delhi High Court in Kumari Tukkanna's case (1984) Cri L. J. 1866, on which Mr. Mohapatra for the opposite party places reliance.
Mr. Mohapatra then contends that in view of the Bench decision of this Court in Bhima Naik's case [(41(1975) CLT, 674)], the matter should be referred to a larger Bench, but in-our opinion, the aforesaid contention is also of no substance In view of the decisions of the Supreme Court in Madhu Limaye's case, Raj Kapoor's case and Municipal Corporation's case, referred to earlier, the Bench decision of this Court in Bhima Naik's case must be held to be no longer a good law and in view of the Supreme Court decisions on the point, it is not necessary for us to refer the matter to a larger Bench. The preliminary objection raised on behalf of Mr. Mohapatra for the opposite party, therefore, fails.
11. Notwithstanding the fact that the preliminary objection has failed, yet we have to consider whether in the facts and circumstances of the present case, it is a fit case where the inherent jurisdiction of this Court has to be exercised. From the order of the learned Magistrate, it appears that four of the eye-witnesses, who have been . examined Under Section 202 of the Code have corroborated the statement of the complainant that Kasinath gave a push to Bhani as a result of which she fell down and succumbed. Whether in the circumstances, it would be a case Under Section 302, Indian Penal Code, or not is a matter to be decided at the trial. But in view of the aforesaid materials,, it cannot be said that there has been any abuse of the process of the Court nor can it be said that there is any necessity in the interests of justice to invoke the inherent power of this Court Under Section 482 of the Code. By now, there are large number of authorities indicating the parameter for exercising the power Under Section 482 of the Code and the present case does not come within the parameters prescribed. We are, therefore, of the opinion that this is not a fit case in which this Court should in exercise of its inherent jurisdiction quash the proceeding or the impugned order passed by the learned Magistrate at this stage.
The Criminal Revision is accordingly dismissed.
Rath, J.
I agree.