Madras High Court
K.R. Ramkumar vs State Rep. By Inspector Of Police on 20 January, 2004
Equivalent citations: 2004(2)CTC42
Author: A.K. Rajan
Bench: A.K. Rajan
ORDER A.K. Rajan, J.
1. All the above Criminal Original Petitions are filed seeking for a direction to the respondents to register a case on the basis of the complaint given by the petitioners therein.
2. The learned counsel for the petitioners place reliance on the Judgment in Chelpark Co. v. Commissioner of Police, Madras, 1969 Crl.L.J. 206, wherein this Court has held that when a Magistrate can order investigation under Section 156(3), Cr.P.C. it cannot be said that High Court has no power to order investigation and direct the police to do its duty. Reliance is also placed upon the decision of the Supreme Court in Mohindro v. State of Punjab and Ors., 2001 (2) Supreme (Cr.) 141, that:
"Police cannot refuse to register a case on report of cognizable offence on basis of any alleged enquiry".
The learned counsel for the petitioners submitted that in view of the above decisions, these petitions are to be allowed as prayed for.
3. Heard the learned Government Advocate on the Criminal side on these aspects.
4. These petitions are filed under Section 482, Cr.P.C. invoking the inherent powers of this Court. The contention of the learned counsel appearing on behalf of the petitioners is that since there is no other provision in the Code for the relief sought for in this petition, they resort to Section 482, Cr.P.C. and these petitions are maintainable.
5. It is to be noted that the Judgment Chelpark Company Ltd. v. The Commissioner of Police, Madras, 1969 Crl.L.J. 209, is a Judgment rendered in a writ petition, where this Court exercised the power conferred on the High Court under Article 226 of the Constitution of India. But the inherent power of the High Court under Section 482, Cr.P.C. is different. The power exercised under Article 226 cannot be equated or compared with the power of this Court under Section 482, Cr.P.C. Therefore, that decision does not help the petitioners.
6. Section 482, Cr.P.C. reads as follows:-
"482. Saving of inherent powers of High Court:- Nothing in this 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 this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice".
The scope of Section 482, Cr.P.C. has been interpreted in a number of cases by the Supreme Court and the High Courts. According to the decisions of the Supreme Court, the provision under Section 482, Cr.P.C. only saves the inherent powers which the Court possessed before the enactment of the Code; it envisages three circumstances under which the inherent jurisdiction will be exercised namely, (i) to give effect to an effect to an order under the Code, (ii) to prevent abuse of process of Code, and (iii) to otherwise secure the ends of justice. While exercising the powers under this Section, the High Court does not function as a Court of appeal or revision. At the same time, this extraordinary power conferred under Section 482, ,Cr.P.C. has to be exercised separately, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the Section itself.
7. The Supreme Court has held repeatedly that the power under Section 482, Cr.P.C. cannot be invoked in respect of any matter covered by specific provisions of the Code. In Kushi Ram v. Hashim, AIR 1959 SC 542, a three judges Bench of the Supreme Court has held that:
"It is unnecessary to emphasis that the inherent power of the High Court under Section 561(A) cannot be invoked in regard to matters which are directly covered by the specific provisions of the Code;.............."
This was reiterated again in R.P. Kapur v. State of Punjab, , while interpreting the Section 561(A) under the 1898 Code (which was identical with Section 482, Cr.P.C. of the 1973 Code) as follows:
"Inherent power of the High Court under Section 561(A), Cr.P.C. cannot be exercised in regard to matters specifically covered by the other provisions of the Code".
In Municipal Corporation of Delhi v. Ram Kishan Rohtagi and Ors., 1983 SC 67, the Supreme Court laid down that Section 482 Cr.P.C. can be exercised only when no remedy is available and not for specific remedy is provided by the Statute, In Janata Dal v. H.S. Chowdhary, 1993 Crl.L.J, 600, the Supreme Court held that:
"The powers possessed by the High Court under Section 482, Cr.P.C. are very wide and very plenitude of the power requires great caution in its exercise and that the inherent powers be used as appeal or revision".
In Palaniappa Gounder v. State of Tamil Nadu, , the Supreme Court has held that:
"This is put in another form by saying that if there is an express provision in a statute governing a particular subject matter, there is no scope for invoking or exercising the inherent powers of the Court, because the Court ought to have applied the provisions of the statute which are made advisedly to govern the particular subject matter".
In Arun Shankar Shukla v. State of Uttar Pradesh and Ors., , the, Supreme Court has held the power under Section 482, Cr.P.C. cannot be exercised in the matter covered by specific provisions of the Code.
In Hari Singh v. Harbhjan Singh, 2001(1) SCC 169 : AIR 2001 SC 43, the Supreme Court has held that the Court cannot under cloak of Section 482 Cr.P.C. exercise the powers of review of the Judgment.
In Dharmapal v. Ramshri, , the Supreme Court has held that:
"The power conferred by Section 482 cannot be utilized for exercising the power expressly barred by the Code, such as, allowing a second revision after dismissal of the first one by the Sessions Judge, against the bar of Section 397(3)".
From the above decisions of the Supreme Court, it is clear that the Supreme Court has consistently held in spite of the slight modification of the strict principle in a few cases that the provisions under Section 482, Cr.P.C. cannot be resorted to when the Code contains some other specific provision for the same purpose.
8. But, the Supreme Court modified the principle in Rajkapoor v. State of Delhi and Ors., 1980 SC 258, to some extent and held that:
"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, 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 areas set apart for specific power under the same Code".
In L. V. Yadev v. Shankarrao, , held that:
"the discretionary provision in Section 482, Cr.P.C. is not intended to by-bass the prescribed procedure and is to be sparingly exercised where the process of law is being misused to harass a citizen. The process means anything done by Court".
In State of Bihar v. Sri Rajendra Agarwalla, 1996 Crl.L.J. 1372, held that the exercise of power under Section 482, Cr.P.C. is limited to the rarest of the rare cases. In Manu Bai v. Shukhdeo, 1990 Crl.L.J. 946, it held that the inherent powers under Section 482 has to be sparingly exercised in order to meet the three situations contemplated therein. The jurisdiction under this provision or is not to be exercised as appellate or revisional jurisdiction for correction of errors of facts of law. The provision cannot be permitted to be resorted to for circumventing other provisions of the Court.
9. In A. Sundaram v. The Director of Central Bureau of Investigation, Greenways Road, Madras, 1991 LW(Crl.) 520, this Court speaking through Pratap Singh, J., also has held that when the power of this Court under the Code was taken away with respect to offence under .TADA Act, the provisions of Section 482, Cr.P.C. are not applicable to persons accused of offences punishable under TADA Act. In P.A. Saleem and Ors. v. State, rep. by the Inspector of Police, T.Nagar, Madras, 1994(2) LW (CrI) 402, Janarthanam, J., has held that petitions filed under Section 482, Cr.P.C. seeking to recall the non-bailable warrants issued by the lower Courts by invoking inherent powers of this Court under Section 482, Cr.P.C. without approaching the Courts concerned which issued such warrants for cancellation are not maintainable, since the Court which issued warrant has power to cancel it.
10. In Mary Angel and Ors. v. State of Tamil Nadu, 1999 (2) LW (Crl) 426, the Supreme Court has held that:
"If there is an express provisions governing the particular subject matter then there is no scope for invoking or exercising the inherent powers of the Court because Court is required to apply, in the matter and mode prescribed, the provisions of the State could exercise inherent powers for doing justice according to law where no express power is available to do a particular thing and express power do not negative the existence of such power".
11. In State v. M. Devendrappa, , referring to previous judgments in various cases, the Supreme Court has summarized the principle on this aspect. As per that decision one of the important conditions which is necessary for the High Court to exercise the power is that "there exists no other provision of law by which the party aggrieved could have sought relief. Therefore, unless there is no other provision in the Code, the provisions of Section 482 Cr.P.C. cannot be resorted to. Since Sections 70 and 71, Cr.P.C. deals with cancellation of NBWs, Court held Section 482 Cr.P.C. cannot be invoked for that purpose.
In Habibul Kareem v. The Assistant Director Enforcement Directorate, Chennai, 1992 (2) LW(Crl.) 728, this Court speaking through M. Karpagavinayagam, J, has held that:
"It is settled law that when there is a specific provision under which the relief could be sought by the parties, it is not permissible for those parties to invoke Section 482, Cr.P.C. in order to overcome the procedural hurdles put in Sections 407(2) and 407(5), Cr.P.C."
This Court again speaking through P.D. Dinakaran, J. in S. Shreenivasa Rao v. State by Inspector of Police, Central Crime Branch, Egmore, Chennai- 8, 2000 (1) LW (Crl) 429, has held that "When a non-bailable warrant is issued by the Court, one has to approach the Court which issued non-bailable warrant under Section 70(2) of the Cr.P.C. and seek for cancellation of the warrant". Under such circumstances, accused was not entitled to approach the Court under Section 482, Cr.P.C., for the reason that 482 Cr.P.C. cannot be invoked when there is specific provision dealing with the same matter. In Dhandapani v. State, by Inspector of Police, Valparai, 2000(2) LW 863, this Court held that Section 482 Cr.P.C. cannot be invoked to defeat the other provisions of the Code, but could be invoked only to give effect to it.
12. The learned Counsel for the petitioners relied upon the Judgment in Chelpark Company Ltd. v. The Commissioner of Police, Madras, 1969 CrI.L.J. 209, wherein it has been held as follows:
"But, however, if the police refused to take up investigation in a cognizable offence, which is a statutory obligation imposed on them, the Court can certainly direct the police to perform its statutory duty to secure the ends of justice. Even in a cognizable offence, if the police do not take up investigation; a Magistrate under Section 156(3), Criminal Procedure Code may order investigation. When a Magistrate can order investigation, can it be said that this Court has no power to order investigation and direct the police to do its duty. The decision of the Privy Council reported in AIR 1945 PC 18 cannot be taken as laying down the principle that the Court cannot direct the police to investigate any cognizable offence. But what it says is, the Courts cannot interfere with the actual performance of the duties of the police".
As stated already this Court, by M. Krishnasamy Reddy, J. held so, when exercising the powers conferred under Article 226 of the Constitution.
13. From the judgments of the Supreme Court extracted above, the law on the subject is that one of the important pre-conditions which is necessary for the exercise of the power under Section 482, Cr.P.C. is that there exists no other provisions of law by which the party aggrieved should have sought relief.
14. In so far as the prayer in these petitions is concerned there is a provisions under Section 156(3) by which the Magistrate may order investigation of a case. Therefore, it is not as it there is no other provisions in the Cr.P.C which provides same relief for which the petitioners approached this Court under Section 482, Cr.P.C. In such circumstances, the petitioner must only resort to the provision namely Section 156(3), Cr.P.C. and cannot approach this Court under Section 482, Cr.P.C. Since there are specific provisions in the Code for the relief sought for, these petitions filed under Section 482 are not maintainable. Merely because the alternative remedy is a prolonged process, this Court cannot be approached under Section 482, Cr.P.C., by-passing the specific provision of the Code. This does not fall within the scope of the diluted principle. That is, it does not satisfy the test of rarest of rare cases. Therefore, all these petitions filed under Section 482, Cr.P.C. are liable to be dismissed as not maintainable.
15. However, it is made clear the dismissal of these petitions does not prohibit the petitioners from approaching the appropriate Magistrate for the relief under Section 156(3) of the Cr.P.C.
16. In the result, all the Crl.O.Ps. are dismissed.