Maldeep Sekhon and ors. vs Navneet Sekhon

S. Bhalla, J.

In this petition under section 482 of the Code of Criminal Procedure, 1073, (hereinafter called `the Code'') for quashing and setting aside complaint and order of summoning etc. a preliminary objection has been raised with regard to the maintainability of the petition, particularly in the light of recent Judgment of Supreme Court in Rajan Kumar Machananda v. State of Karnataka, JT 1987 (4) S.C. 637. It has been held in the said judgment that the statutory bar under section 397(3) of the Code cannot be overcome by merely saying that the jurisdiction of the High Court in the exercise of its inherent power was being invoked. In the present case, it is not disputed that a revision was preferred by the petitioners before Sessions Judge, Chandigarh, which was dismissed and that the present petition is founded upon almost the same grounds which had been taken in the revision petition preferred before the Sessions Judge. This being so, it just amounts to branding of the petition as one under section 482 of the Code with the idea to get the orders of the Sessions Judge revised. It is well settled that inherent power of the Court can ordinarily be exercised when there is no express provision on the subject matter. It is on the basis of said recognised principle that where there is an express provision barring a particular remedy, the Court cannot or should not resort to the exercise of inherent powers. This is not a case where legislation did not take care of a remedy through express provisions that invoking of inherent powers may be said to be called for. On the other hand the legislation after taking into consideration the need of exercise of revisional powers by a superior Court has in its wisdom decided that the same are to be exercised once only. Subsection (3) of Section 397 of the Code provides for concurrent jurisdiction of the High Court and the Sessions Judge in exercise of revisional powers and bars its exercise for the second time by either of them at the instance of the same person. The object of this provision is to prevent multiple exercise of revisional powers and to secure earlier finality of orders. Any person aggrieved by an order of inferior criminal Court is given the option to approach either the Session''s Judge or the High Court and once he exercises the option. He is precluded from invoking the revisional jurisdiction of either of them. Where a bar of Section 397 (3) of the code is effectively attracted, the same cannot be circumvented through invoking of inherent powers. What may not be done directly cannot be allowed to be gone indirectly and that would naturally be an evasion of the statute. Thus so far as bar under section (3) of Section 397. of the Code is concerted, it is not a case of absence of any express provision on the subject matter i.e. the assessment with regard to illegality, impropriety and irregularity the orders of a Magistrate.

The following three principles in relation to the exercise of inherent powers of the High Court have been followed invariably;

(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 provision of the Code.

These principles have also been recognised in Madhu Limaye v. State of Maharashtra, AIR. 1978 Supreme Court 47.The present case obviously lies within the ambit of third principle. The bar provided under subsection (3) cannot possibly be put at par with the bar provided under subsection (2) of section 397 of the Code which completely rules out any revisional power and for that reason can possibly embrace a situation where impugned order may clearly bring about an abuse of the process of Court, and in really hard eases it may be absolutely necessary for the High Court to interfere to secure the ends of justice, although, there also, such cases would be few and far between. Cases Amar Nath and others v. State of Haryana and others, AIR 1977 Supreme Court 218 5and Madhu Limase''s case (supra) deal with bar provided under subsection (2) of Section 397 of the Code and not under sub, section (3) thereof, whereas Machananda''s case (supra) deals with bar under sub section (3) of Section 397 of the Code and thus is on all fours applicable. By force of that pronouncement, preliminary. objection raised on behalf of the respondent is to sustain.

This High Court has also held through Soni and others v. State of Haryana and others, 1983(2) Recent C.R. 475 , and Mukesh Kumar and ors. v. M.L. Kejriwal, 1988(1) Recent C.R. 528 that as second revision application by the same person is not entertainable, recourse to Section 482 cannot be permitted by sidetracking the bar provided under section 397 (3) of the Code. Relying on the said rulings as well as Machananda''s case (supra) wherein the apex Court has recognised the bar provided under sub section (3) of section 397 of the Code, in clear terms, to shut invoking of inherent powers, I feel that present petition is not maintainable The same accordingly is dismissed.