Indian Kanoon - Search engine for Indian Law

"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 construction 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 provisions, barring a particular remedy, the Court cannot resort to the exercise of inherent powers."

In that case, the Apex Court further interpreted the term "interlocutory order" and came to the conclusion that the order which was challenged in that particular case could not be said to be an interlocutory order and did not fall within the mischief of sub-section (2) of section 397 of the Code and was not covered by that provision. It, therefore, proceeded to hold that a revision against the order was fully competent under section 397(1) or section 482 of the 1973 Code, because the scope in both these sections in the matter of the kind was more or less the same. It will have to be seen and appreciated that the observations made by the Supreme Court in paragraph 3 which have been quoted above are almost identical with the observations made in Dharampal's case, and also in Simrikhia's case, , cited supra. The observations by Sawant, J., in Dharampal's case and by Fatima Beevi, J., in Simrikhia's case which have been emphasised by me in this judgment earlier can be said to be practically identical with the observations in Amarnath's case.

11. The controversy regarding the scope and the powers under section 482 as also regarding the true and correct interruption of the term "interlocutory order" came up before the Supreme Court in Madhu Limaye's case , Madhu Limaye v. State of Maharashtra. Amar Nath's case (cited supra) was threadbare considered in Madhu Limaye's case and ultimately Untwalia, J., who was also the part of the Bench which decided Amar Nath's case explained the law laid down in Amar Nath's case. Untwalia, J., held that two points were decided in Amar Nath's case and they were, "(1) 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 1973 Code, the inherent powers contained in section 482 would not be available to defeat the powers contained in section 397(2).

12. Shri Manohar, thereafter, pointed out that the decision of Madhu Limaye's case was thereafter considered by the Supreme Court in Raj Kapoor's case, . In paragraph 10, V.R. Krishna Iyer, J., observes ;

"The first question is as to whether the inherent power of the High Court under section 482 stands repelled when the revisional power under section 397 overlaps. 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 principel pervades this branch of law, when a specific provisions 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 Madhu Limaye's case, , this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in section 397(2)."