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The Indian Penal Code
The Code Of Criminal Procedure, 1973
Nadir Khan vs The State (Delhi Administration) on 3 June, 1975
State Of Karnataka vs L. Muniswamy & Ors on 3 March, 1977
Section 389 in The Indian Penal Code

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Andhra High Court
In Re: Puritipatti Jega Reddy vs Unknown on 4 December, 1978
Equivalent citations: AIR 1979 AP 146
Author: A S Rao
Bench: A S Rao, M Rao, J Reddy



JUDGMENT
 

 A. Sambasiva Rao, C.J. 

1. While referring these matters to Bench or three Judges the' Division Bench consisting of Obul Reddi, C. J. and Gangadhara Rao.J. posed the two following questions;

(I) Whether it would be open to party to invoke the provisions of S. 482, Cr. P C. 1973, When he seeks to file a second revision in the High Court under S. 397 (3) ?

(2) Whether sub-section (3) of S. 397 takes away the jurisdiction of this Court (High Court) to suo motu exercise its revisional jurisdiction in case where the Sessions Judge had already exercised his revisional jurisdiction under sub-sec. (3) on an application made to him under that sub-section?"

2. Earlier Muktadar. J. referred these cases to a Division Bench in view of the conflicting decisions on these aspects f this Court and other High Courts. The Division Bench thought that the two question are very important and should be decided by a Full Bench.

3. Apart from the different view points expressed on these questions by learned single Judges of this Court and of other High Courts, the Supreme Court itself in a Bench of two learned Judges held the view m Amarnath v. State of Haryana. :

"Section 482 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 Ss. 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under S. 397 (2) and cannot be the subject of revision by the High Court, then to such a case the provisions of S. 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".

However, in a later decision in MadhuLimaye v. State of Maharashtra. , a Bench of three Hon'ble Judges of the Supreme Court was of the opinion that the aforesaid statement of the law was not quite accurate and needs some modulation. It is significant to note that Untwalia, J. who was a member of the earlier Bench, spoke for the later Bench of three Judges.

4. The question before the Supreme Court in the later Bench was whether the High Court can exercise its inherent Power to quash an interlocutory order. The learned Judges had to consider the meaning and nature of an interlocutory Order within the meaning of S. 397 (2) Cr. P. C. and whether the bar contained in that provision would preclude the High Court to exercise its inherent Power under S. 482 Cr. P. C- in relation to an interlocutory order. In this Particular matter we are not concerned with the meaning of words ''interlocutory order'' occurring in S . 397 (2). The aforesaid Supreme Court's decision is relevant and material only on the other fact- of the problem viz., exercise of inherent power by the High Court under S. 482 Cr. P. C. It was pointed out by Untwalia J. giving the judgment of the Court, that on a plain reading of S. 482, it would follow that nothing in the Code which would include sub-section of S. 397 also shall be deemed to limit or affect the inherent powers of the High Court. The bar provided in sub-sec. (2] of S. 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 stated earlier the inherent power will come into play, there being no other provisions in the Code for the redress of the grievance of the aggrieved party. Three principles had been earlier stated by the learned judge which are pertinent to the exercise of the inherent power of the High Court. They are.

(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 provisions of the Code." Having stated this, the learned Judge proceeded to observe that 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 and interference by the High Court is absolutely necessary, then nothing contained in S. 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. High Court must exercise the inherent power very sparingly. This state was illustrated by referring to a case where the quashing of a criminal proceeding initiated being illegal or vexatious or as being without jurisdiction is desirable. Summing up the position the learned Judge painted out that the bar under S. 397(2) will not operate to pre vent 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. In this manner in Madhu Limayes case (supra) the larger Bench expressed the view that the statement of the law contained in Amar Nath's case [supra) relating to the exercise of inherent power was not quite accurate and needed some modulation.

5. In Madhu Limaye's case (supra) the Court had no occasion to express any opinion regarding the exercise of inherent power under S. 482, Cr.P.C. vis-a-vis S 397 (3). But it is patent from a reading of the material provisions of the Cr. P. C. that what the Supreme Court has laid dorm in respect of Sec. 482 vis-a-vis Sec. 397 (2) would apply with equal force to the exercise of inherent power under Section 482 vis-a-vis S. 397 [3).

6, Section 397 occurs in Chap. X XX of the Cr. P. C. which deals with "Reference and revision while Sec, 395 provides for reference to the High Court where a case involves a question as to the validity of any Act, Ordinance or Regulation etc. S. 397 enables the High Court or any Sessions Judge to call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any Proceedings for such inferior Court. Sub-section (2); which was directly in point in Madhu Limaye`s case (Supra] in the Supreme Court, imposes a bar on this power of revision conferred on the High Court in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. Sub-sec. (3) of the same Section also contains a somewhat analogous provision in the following terms:

"if an application under this section has been made by any person either to the High Court or to the Sessions Judge no further application by the same person shall be entertained by the other of them."

7. In this particular matter we are concerned with sub-sec. (3). This is how the matter arose, The present petitioner has been the lessee of standing paddy crop in an extent of Ac. 9-45 cents. By instituting M. C. 5/77 the 1st respondent obtained on 16th of Nov., 1977 an ex parte order under S. 114 (1) against 43 persons. But the petitioner was not a party. That order was passed by the Executive Magistrate Gudivada The petitioner himself filed M. C.1/77 on 18th of Nov., 1977 before the Sub-Divisional Magistrate, Gudivada under S. 145 (1). Cr. P. C. That was dismissed by that Magistrate on 2nd Dec.. 1977. Aggrieved by that dismissal order, the petitioner preferred a criminal revision petition 61/77 under S. 397 (1) to the Sessions Court, Krishna By its order dated 14th Dec., 1977 the Sessions Court affirmed the Sub-divisional Magistrate's order. Not resting content with it, he is now seeking to file a further revision to this Court and that is S. R. No. 90529. The other two viz. S.R. Nos. 90530 and 90531 are with the intention of seeking orders of stay and of appointing a receiver.

8. The office raised an objection as to the maintainability of a further revision, since second revision at the instance of the same party is barred under sub-section (3) of S 397. It must, however, be noted that the petitioner sought to file these petitions to quash the order of the Sessions Court, Krishna under Sec. 482 of the Criminal Procedure Code.

9. The language of sub-sec. (3) of S. 397 contains no ambiguity. If any person has already chosen to file a revision before the High Court or to the Sessions Court under sub-sec. (1),the same person cannot prefer a further application to the other Court. To put it in other words. Sub-secs. (1) and (3) make it clear that person, aggrieved by any order or proceeding can seek remedy by way of a revision either before the High Court or the Sessions Court. Once he has availed himself of that remedy. he is precluded from approaching the other forum. It is equally manifest from the provisions that Sub- Sec (3) that this bar is limited to the same person who has already chosen to get either to the High Court or to the Sessions Court seeking a remedy and that it does not apply to the other parties or persons. Further the bar contained in sub-sec.(3) is only against that person who has ready chosen the remedy either before the High Court or before the Sessions Judge. It is not permissible to extent the bar contained under a statute to other Persons or to other fields. It is well established that the bar against seeking a remedy in a Court of Law or against a Court of law rendering justice should be strictly construed. It is noteworthy that Sub-sec. (1) of Sec, 397 empowers the High Court or the Sessions Court to call for and examine the record of any proceeding before any inferior Court. That is to say, it can exercise this power of calling for and examining the record suo motu also. The language of Sub-sec. (3). strictly limited as it is to a person who has chosen to seek the remedy from one of the two courts, cannot be extended to the High Court exercising its powers conferred on it under the provision of the Code. It is patent that the bar contained in sub-sec. (31 is only against the person who has already chosen his remedy before one of the two forums.

10. The same inhibition against a Person who has already chosen his remedy before the Sessions Judge is contained in S. 399 Cr. P. C. Which states the Powers of revision by the Sessions Judges. Under sub-sec. (I) of that Section, Sessions Judge Can Exercise all or any of the Powers which may be exercised by the High Court under sub sec (I) of S. 401 in all cases is which the records had been called for by himself. It may be noticed here that Section 401 refers to'' High Courts Powers of revision." Now Sub-sec. (3) of S. 399 lays down:

"where any application for revision is made by or on behalf of any Person be fore the Sessions Judge, the decision or 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'.

Once again the bar is that if a Person has chosen a remedy of filing a revision before the Sessions Judge, the decision of the Sessions Judge is Final and the Same person is precluded from filing any other revision either before the High Court or anti other Court. It is worthy of note that the inhibition contained in Section 389 (3) also is against the same person seeking a remedy either before the High Court or any other Court, once he has preferred a revision to the Sessions Judge where a decision has been rendered.

11. At the same time S. 482 Cr. P. C. declares that nothing in that Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under that Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. There is a large volume of judicial pronouncements on the scope of the inherent power of the High Court culminating in the latest decision of the Supreme Court in Madhu Limayes case (AIR 197S SC 47) (supra). The Supreme Court ruled that the inherent 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 nor should it be exercised as against the express bar of law engrafted in any other provision of the Code. However it should be exercised_ though sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice.

12. Our review of the material provisions of the Code. particularly that of sub-section (3) of S. 397 would show that there is no express bar of law engrafted either in that provision or anywhere else in the Code against the High Court exercising ifs inherent powers. Therefore, it follows that the High Court can exercise its power under S. 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 die ends of justice As we have made clear, the same party cannot seek a further remedy by way of revision of filing an application either to the High Court or to the Sessions Court also has already sought such a remedy from one of the two courts under S. 397 (1). He can however invoke S. 482 and bring it to the notice of the High Court, in whatever manner it may be, that there has been abuse of process of the Court or that there has been miscarriage of justice. The nigh Court can take notice of the same and exercise its inherent powers under S. 482, Cr. P. C and S. 397 (3) cannot operate as a bar for such a course. As the Supreme Court pointed out in Madhu Limaye's case (supra), "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."

13. Under S. 397 (1) Cr. P. C. the High Court can suo motu call for and examine any record of any proceeding at any inferior Criminal Court and there after exercise any of the powers conferred under Ss. 398 and 401 Cr. P. C. The power of the High Court to act suo motu has been explained by the Supreme Court in Nadir Khan v. State and Eknath v. State of Maharashtra . In these cases the Supreme Court held that the new Criminal P. C. has not, abolished the High Court's power of enhancement of sentence by exercising revisional jurisdiction suo motu and that the provision for appeal against inadequacy of sentence by the State does not lead to such a conclusion. Their Lordships further held that such a provision for appeal for enhancement of sentence is a bar to a party who does not appeal when appeal lies but applies in revision, but the same does not stand in the way of the High Court's exercise of power of revision suo motu. This ratio laid down by the Supreme Court in respect of S. 397 (1) vis-a-vis Sec. 377 and S. 401 (4) would equally apply to the exercise of power of revision suo motu by the High Court in other respects wherever it is necessary to prevent abuse of process of any Court or to secure the ends of justice as enshrined in that salutary provision under S. 482 Cr. P. C. For such a just exercise of power suo motu by the High Court, S. 397 (3) Criminal P. C. should not come in the way.

14. In State of Karnataka V. L. Muniswamy it was held by Chandrachud, J. (as he then was), who spoke for the Court. that in the exercise of the wholesome power under S. 482 the High Court is entitled to quash a proceeding, if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the Court or that the ends of justice require that the proceeding, ought to be quashed. But This power, as has been explained by the Supreme Court on mole than one occasion, has to be exercised very sparingly and only when it is satisfied that its interference is necessary to prevent abuse of process of any Court or to otherwise secure the ends of justice. If it does not reach this satisfaction, it shall not interfere in the exercise of its inherent power under S. 482, where once the Sessions Judge had already exercised his revisional jurisdiction. For the aforesaid reasons, the second question posed by the Division Bench, while referring the matter to the Full Bench, as to whether S. 397 (3) takes away the jurisdiction of the High Court to suo motu exercise its revisional jurisdiction in a case where the Sessions Judge had already exercised his revisional jurisdiction under Sub-section (3) on an application made to him under that sub-section, has to be answered in the negative, but such a power can be exercised in the manner indicated above.

15. Now coming to the first contention as to whether it is open to a party to invoke the provisions of S. 482 Cr. P. Code when he seeks to file a second revision in the High Court under S. 397 (3), it is manifest that he is precluded from a Second revision in the High Court by virtue of the provisions of S. 397 (3): 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 S. 482 Cr. P. C. But 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 be warranted in the ends of justice. Once that prima facie satisfaction is reached by the High Court at the time of admission, then a petition even by the party who has been unsuccessful before the Sessions Judge can be received, entertained and finally disposed of. The label given to the case is immaterial, it the satisfaction of the Court whether the case warrants the exercise of its power under S. 482 which is important. Therefore, such matters must be carefully scrutinised even at the admission stage. That is our answer to the first question.

16. Now that, we have answered both the questions referred to us, we direct these matters, which are In the S, R. stage. to be posted before the regular Court to decide whether they are fit cases to be entertained under S. 482 Cr , P. C. The Court will entertain them and issue notice to the other side and the public prosecutor only if it is prima facie satisfied that there has been abuse of the process of the court or that the High Court's interference is necessary in the interests of justice.

17. Order accordingly.