Chhedilal vs Smt. Kamla and Another

B.N. Katju, J.—This is an application u/s 482 Code of Criminal Procedure.

Smt. Kamla opposite party No. 1 filed an application on u/s 488 Code of Criminal Procedure 1898 and SDM, Baheru by his order dated 22-1-1977 allowed the said application and directed the applicant to pay Rs. 200 per month as maintenance allowance to Smt. Kamla opposite party No. 1 with effect from 26-1-72. The applicant filed Criminal Revision No. 5 of 1977 against the aforesaid order of SDM, Baheru which was allowed in part by the Additional Sessions Judge, Banda by his order, a copy of which is attached as annexure III to the affidavit and the monthly allowance granted to Smt. Kamla opposite party No. 1 was reduced to Rs. 80 per month. The applicant thereafter filed this application u/s 482 Code of Criminal Procedure for quashing the order of the Additional Sessions Judge, Banda passed in Criminal Revision No. 5 of 1977.

The first question that requires determination is whether this application is maintainable. The applicant had filed Criminal Revision No. 5 of 1977 against the order of SDM Baheru dated 22-1-77 which was partly allowed by the Addl. Sessions Judge, Banda. An application by the applicant in revision u/s 397 Code of Criminal Procedure against the aforesaid order of the Additional Sessions Judge, Banda could not be entertained by this Court as Sub-section (3) of Section 397 Code of Criminal Procedure states that if an application has been made u/s 397 Code of Criminal Procedure 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 and according to Sub-section (3) of Section 399 Code of Criminal Procedure where any application for revision is made by or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge 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. I am clearly of the opinion that if an application by the applicant u/s 397 Code of Criminal Procedure against the order of the Additional Sessions Judge Banda could not be entertained by this Court and the order of the learned Judge had become final in relation to the applicant this Court has no jurisdiction to revise the order of the learned Judge suo moto in favour of the applicant and to the detriment of Smt. Kamla opposite party No. 1 for what cannot be done directly cannot obviously be done indirectly. To hold otherwise would amount to nullifying the provisions of Sub-section (3) of Section 397 Code of Criminal Procedure and Sub-section (3) of Section 399 Code of Criminal Procedure. If the Sessions Judge passes an order u/s 397 Code of Criminal Procedure suo moto then such an order is reviseable by the High Court u/s 397 Code of Criminal Procedure suo moto or on an application made by the aggrieved person as Sub-section (3) of Section 397 Code of Criminal Procedure and Sub-section (3) of Section 399 Code of Criminal Procedure will not be applicable. But where the Sessions Judge passes an order u/s 397 Code of Criminal Procedure on an application by any person this Court cannot revise that order even suo moto in favour of such person as it has become final in relation to such person.

Sub-section (4) of Section 435 Code of Criminal Procedure 1898 ran as follows:

If an application under this Section has been made either to the Sessions Judge or District Magistrate, no further application shall be entertained by the other of them.

It was held by a Division Bench of the Madras High Court in the case of Kalimuthe v. Emperor ILR XXVI Mad. 477:

Under that clause (Section 435(4) Code of Criminal Procedure) it was certainly not competent to the District Magistrate to entertain an application for the commitment being ordered when the Sessions Judge had refused such an order. The only question then is whether the District Magistrate could act suo moto. We must hold that he could not, for otherwise the salutory prohibition now enacted would be rendered nugatory. It could not have been intended that what the District Magistrate might not do on an application could yet be done by him by his dispensing with an application.

The aforesaid decision supports the view taken by me that an order passed by a Sessions Judge in revision on an application made by any person is final in relation to such person and cannot be interfered with by this Court in the exercise of its revisional powers in favour of such person even suo moto. In the case of Sarjoo v. Babadin 1975 AWC 500, K.B. Srivastava, J. did consider the question as to whether or not Sub-section (3) of Section 397 Code of Criminal Procedure barred the exercise of revisional powers by this Court suo moto but ultimately observed that he did not wish to express any definite opinion in the matter. I am however clearly of the opinion that once a Sessions Judge passes an order u/s 397 on an application made by any person this Court is prohibited from revising that order in favour of such person even suo moto.

The question that remains to be determined is whether an order of the Sessions Judge passed u/s 397 Code of Criminal Procedure on an application made by any person can be interfered with by this Court in the exercise of its inherent powers u/s 482 Code of Criminal Procedure in favour of such person. I am clearly of the opinion that the inherent powers of this Court cannot be exercised in order to circumvent the provisions of Sub-section (3) of Section 397 Code of Criminal Procedure and Sub-section (3) of Section 399 Code of Criminal Procedure. I am fortified in my view by the decision of the Supreme Court in the case of Amar Nath v. State of Haryana 1977 Criminal Appeals Reporter (SC) 273 in which it has been held:

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.

It has also been held in Dassu v. Smt. Manitra 1976 AWC 78 that when no second revision lies u/s 397(3) Code of Criminal Procedure the provisions of Section 482 Code of Criminal Procedure cannot be invoked for the purpose of circumventing the express provisions of the Act.

The result, therefore, is that the inherent powers of this Court cannot be exercised to quash the order of the Additional Sessions Judge, Banda, copy of which is attached as Annexure III to the affidavit. This application is, therefore, not maintainable. It is accordingly rejected.