Radhey Mohan and Others vs State of U.P. and Another

J.P. Semwal, J.—The applicants have moved this application u/s 482 Code of Criminal Procedure for quashing the orders dated 4-11-1982 and 2-3-1983 of the Sub-Divisional Magistrate, Shahganj, District Jaunpur in Criminal Case No. 34 of 1982 and the revisional order dated 6-8-1983 passed by the Sessions Judge, Jaunpur.

The facts leading to these proceedings u/s 482 Code of Criminal Procedure may be summarised in brief as follows:

The opposite party No. 2 Phenku, moved an application u/s 145 Code of Criminal Procedure accompanied by an affidavit on 19-2-1982 in the Court of Sub-Divisional Magistrate, Shahganj, Jaunpur regarding Chak No. 32-A, area 1.91 acre, and Chak No. 32-B, area 0.50 decimal, situate in village Nagahati, Police Station Sarai Khurja, district Jaunpur. The Sub-Divisional Magistrate, Shahganj passed preliminary order u/s 145 Code of Criminal Procedure on 4-11-1982. Therefore, the opposite party No. 2 moved an application on 13-1-1983 for attachment of the land in question alongwith the standing crops accompanied by an affidavit. The '' learned Sub-Divisional Magistrate allowed the application, vide his order dated 2-3-1983 and attached the land in dispute alongwith the standing crops, the certified copies whereof have been filed by the applicants as Annexures A-l and A-2. Thereafter, the applicants filed revision against the said order of attachment u/s 146(1) Code of Criminal Procedure which was dismissed by the Sessions Judge, Jaunpur, vide his order dated 8-3-1983, the certified copy whereof has been filed as Annexure A-3 by the applicants.

In the application u/s 482 Code of Criminal Procedure, the applicants claim to have purchased the disputed land from one Smt. Dhanpatti Devi, who was allotted a chak during the consolidation operation, by a registered sale-deed dated 14-4-1975 and claim to have been in actual physical and cultivatory posses-ion of the same since then. It is alleged that the Sub-Divisional Magistrate was not satisfied as to the existence of breach of peace and the police did not report about the existence of breach of peace. The applicants disputed the existence of breach of peace but the learned Magistrate without applying his mind passed a preliminary order solely on the ground that the Petitioners had not filed any affidavit in rebuttal. The revisional Court rejected the revision on the ground that the revision did not lie against the order of attachment u/s 146(1) Code of Criminal Procedure. It is contended that the orders passed by the Courts below are manifestly erroneous and grossly unjust and the Petitioners have no remedy except to invoke the inherent jurisdiction of this Court u/s 482 Code of Criminal Procedure.

I have heard learned Counsel for the parties at considerable length and have perused the record of the case. As regards the contention that the Sub-Divisional Magistrate passed the preliminary order dated 4-11-1982 u/s 145 Code of Criminal Procedure without applying his mind and without satisfaction about the existence of breach of peace, this was not agitated before me. It is relevant to point out here that the impugned order dated 4-11-1982 clearly indicates that the Magistrate concerned perused the record including the affidavit of the opposite party No. 2, Phenku, in which he clearly stated about the existence of breach of peace, which was not rebutted by any counter-affidavit by the Petitioners and applied his mind before passing the said impugned order dated 4-11-1982. It cannot,- therefore, be said that the order of the Magistrate was passed without any material indicating that there was any apprehension of the breach of peace. The order of attachment u/s 146(1) Code of Criminal Procedure was passed by the Magistrate concerned subsequently on 2-3-1983 after analysing and considering the contentions raised before him. The applicants went up in revision against the said order of attachment, which was dismissed by the Sessions Judge, Jaunpur, vide his order dated 8-3-1983.

Sri S.C. Tripathi, learned Counsel for the applicants, raised a short point during the course of arguments. His contention was that two rulings were cited before the revisional Court. In the earlier ruling of a Division Bench of this Court in the case of Sohan Lal Burman Vs. State of Uttar Pradesh and Others, the Division Bench has held that the order u/s 146(1) Code of Criminal Procedure cannot be termed as an interlocutory order and a revision would lie against an order passed u/s 146(1) Code of Criminal Procedure. In the subsequent ruling of a Division Bench of this Court in the case of Indradeo Pandey v. Smt. Bhagwati Devi 1981 ACC 316, the Division Bench held that an order passed u/s 146(1) Code of Criminal Procedure was an interlocutory-order and no revision would lie against the same. The contention of the learned Counsel for the applicants was that since both the aforesaid Division Bench rulings are in conflict with each other, hence the matter should be referred to a larger Bench to examine this question The learned Counsel cited the case of Lala Shri Bhagwan v. Ram Chand 1965 ALJ 353, and relied on the following observations made at page 360 of the report ;

Before we part with this appeal, however, we sought to point out that it would have been appropriate if the learned Single Judge had not taken upon himself to consider the question as to whether the earlier decision of the Division Benches of the High Court needed to be re-considered and revised. It is plain that the said decisions had not been directly or even by necessary implication overruled by any decision of this Court, indeed the judgment delivered by the learned Single Judge shows that he was persuaded to re-examine the matter himself and in fact he had substantially recorded his conclusion that the earlier decisions were erroneous even before his attention was drawn to the decision of this Court in Laxman Purshottam Pimputkar''s case. It is hardly necessary to emphasise that considerations of judicial propriety and decorum required that if the matter is inclined to take the view that the earlier decisions of the High Court, whether a Division Bench or of a single Judge need to be reconsidered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or, in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned Single Judge departed from this traditional way in the present case and chose to examine the question himself.

In that case the learned Single Judge took the view that in exercising its Authority u/s 7 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, the State Government was required to decide the matter in revision in a quasi-judicial manner and it was absolutely essential that the principles of natural justice should have been followed by the State Government before reaching its decision and an opportunity should have been given by it to the Respondents to place their case before it.

He next cited the ruling of the. Supreme Court in the case of Sri Venkateswara Rice, Ginning and Groundnut Oil Mill Contractors Co. and Others Vs. State of Andhra Pradesh and Others, , wherein the Supreme Court has observed that one co-ordinate Bench of the same High Court is bound by the earlier decision. In para 9 of the report the Supreme Court has observed as follows:

Our approach to the question before us is similar to that adopted by the High Court in the decision under appeal. We are in entire agreement with the reasoning of the High Court. But our attention was invited to a latter decision of the same High Court in M. Madar Khan and Co. Vs. Assistant Commissioner (C.T.), Ananthapur and Others, which took a view contrary to that taken in the decision under appeal. It is strange that a co-ordinate Bench of the same High Court should have tried to sit on judgment over a decision of another Bench of that Court. It is regretable that the learned Judges who decided the latter case overlooked the fact that they were bound by the earlier decision. It they wanted that the earlier decision should be reconsidered, they should have referred the question in issue to a larger Bench and not to ignore the earlier decision.

The summon bonum of the arguments of the learned Counsel for the applicants is that the latter Division Bench which decided the case of Indra Deo Pandey (supra) should not have given the ruling different from the ruling of the earlier Division Bench in the case of Sohan Lal Burman v. State of U.P. and Ors. (supra) and should have referred the matter to a larger Bench. In Sohan Lal Burman''s case (supra) the earlier Division Bench of this Court came to the conclusion that an order u/s 146(1) Code of Criminal Procedure cannot be said interlocutory in nature. The Division Bench gave its Reasoning saying that an order attaching the property u/s 146(1) terminates the proceeding u/s 145 before the Executive Magistrate save for the limited purpose of withdrawing the attachment in cases where the apprehension of breach of peace ceased to exist. It was further observed that their Lordships were unable to see how such an order can be termed as interlocutory order for nothing survived for substantial determination before the Executive Magistrate after an attachment order u/s 146(1) was passed and thereafter the rights of the parties to possession of the attached property has to be determined by the civil Court.

In subsequent Division Bench case of Indradeo Pandey (supra), their Lordships have concluded that an order made during the pendency of the proceedings u/s 145 Code of Criminal Procedure attaching the property u/s 146(1) Code of Criminal Procedure is purely interlocutory order within the meaning of Section 397(2) of the Code. This subsequent Division Bench discussed the case law in detail and followed the ruling of the Supreme Court in the case of Madhu Limaye Vs. The State of Maharashtra, and other cases while interpreting Section 397(2) Code of Criminal Procedure and held at page 320 as follows:

The legal position that emerges from various observations made in the cases mentioned above, therefore, is that for the purposes of Section 397(2) order of purely interim or temporary nature which does not decide or touch the important rights or liabilities of parties would be considered to be interlocutory order within the meaning of Section 397(2) of the Code.

This subsequent Division Bench has considered the earlier Division Bench ruling of this Court in the case of Sohan Lal Burman (supra) and he opined that the very basis of Sohan Lal Burman''s case for holding that an order attaching property u/s 146 of the Code cannot be considered to be an interlocutory order disappears and that the law laid down in that case cannot be said to be a good law. Relying on the Supreme Court''s rulings, the subsequent Division Bench was of the opinion that "Section 146 cannot be separated from Section 145. It can only be read in the context of Section 145. In a case of emergency a Magistrate may attach the property, at any time after making the preliminary order u/s 145(1). There is no express stipulation in Section 146 that the jurisdiction of the Magistrate ends with the attachment. Now is it implied The obligation to proceed with the enquiry as prescribed by Section 145(4) is against any such implication. The only provision for stopping the proceedings and cancelling the preliminary order is to be found in Section 145(5) and it can be on the ground that there is no longer any dispute likely to cause a breach of peace. It was further observed that a comparative study of Sections 145 and 146 as they stood, before 1955 and after 1955 under the old Code and as they now stand under the 1973 Code, also leads to the conclusion that the Magistrate''s jurisdiction does not end as soon as an attachment is made on the ground of emergency. In the result, the subsequent Division Bench disagreeing with the earlier Division Bench ruling held that the order of attachment u/s 146(1) is purely an interlocutory order within the meaning of Section 397(2) of the Code. (See also Mathuralal Vs. Bhanwarlal and Another, .

Apart from citing the rulings reported in 1965 ALJ 353 and AIR SC 41 , already mentioned above, learned Counsel for the applicants made his arguments academic by referring to Article 141 of the Constitution of India and dwelling more upon the ''Doctrine of Precedent'' rather than on merits of the application u/s 482 Code of Criminal Procedure. The law by the Supreme Court is binding on all the Courts in the country. Articles 141 and 142 of the Constitution of India are made comprehensive to enable the Supreme Court to declare the law and to issue such directions or pass such orders as are necessary to do complete justice. The Supreme Court as an apex adjudicator clarifies a confused juridical situation and substantially acts as the legal mentor of the nation as has been observed by the Supreme Court itself (See Commissioner of Income Tax, Madras Vs. R.M. Chidambaram Pillai and Others, It was Bracton, who by using cases in his note book started the English System of Precedent. In this note book he says; ''Sitaman similia exeneriht, per mile judicenture, cum bona sit occasion a similibus procedure ad similia". (If, however similar things happen to take place, they should be adjudged in a similar, way; for it is good to proceed from precedent to precedent (See Lord Denning on What Next in the law). The use of precedent is an indispensable foundation upon which to decide what is the law and its application to individual cases, it provides at least some degree of certainty, upon which individual cases can rely in the conduct of their affairs as well as a basis for orderly development of legal rules. The Doctrine of Precedent has come into existence to introduce and maintain element of certainty in the interpretation of law. As observed by the Supreme Court, the certainty of law is the safety of citizens (See R.S. Joshi, Sales Tax Officer, Gujarat and Others Vs. Ajit Mills Limited and Another, . By virtue of Article 141 of the Constitution, the law declared by the Supreme Court shall be binding on all the Courts within the territory of India. When the law is declared by the Supreme Court, it is the duty of High Court and other inferior Courts to act in accordance with it. The expression ''declares'' means to announce an opinion, A decision is an Authority for what it actually decides. What is the essence of a decision is its ratio and not every observation found therein, nor what logically follows from it (See The State of Orissa Vs. Sudhansu Sekhar Misra and Others, . Quotability as law'' applies to the principles of a case ; it is ratio decidendi. Statements other than ratio decidendi are distinguished as obiter dicta, they are not authoritative. Mere passing remarks of a Judge are known as obiter dicta. Although binding in a judgment is its ratio decidendi and not obiter dicta, nevertheless the obiter of the Supreme Court is entitled to considerable weight (See Commissioner of Income Tax, Hyderabad-deccan Vs. Vazir Sultan and Sons, . Mere casual remarks are not binding (See Municipal Corporation of Delhi Vs. Gurnam Kaur, .

Every decision contains three basic ingredients; (i) finding of material facts, direct and inferential, (ii) the statement of the principles of law applicable to the legal problems disclosed by the facts, and (iii) the judgment based on the combined effect of (i) and (ii). For the parties, ingredient (iii) is material, while for determining its precedent value, it is the, ingredient (ii) which is vital; that indeed is the ratio decidendi.

To find out the binding proposition in a judgment lies in the domain of determining ratio decidendi in a given case. It is well settled that a decision is not binding because of its conclusions but in regard to its ratio and the principles laid down therein (See B. Shama Rao Vs. The Union Territory of Pondicherry, .

The enunciation of the reasons or principle upon which a question before a Court has been decided is alone binding as a precedent. This underlying principle is called the ratio decidendi namely the general reason given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision (See Austin''s Lecture of Jurisprudence, 5th Edition 62). The only thing in a Judge''s decision binding as an Authority is the principle upon which the case was decided (See Osborne to Rowlett (1980) 13 Ch.D. 774. Judicial Authority belongs not to the exact words used, nor even to all the reasons given but only to the principles accepted and applied as necessary grounds of the decision (See Sir Frederick Pollock quoted by Lord Denning in Close v. Steel Co. of Wales 1962 AC 367: (1961) 2 All. ER 953 . The only use of authorities or decided cases is the establishment of some principle which the Judge can follow but in deciding the case before him (Re Hallet''s Estate, Koatchbull v. Hallet (1880) 13 Ch.D 696; Smith v. Harris (1939) 3 All. E.R. 960

What constitutes binding precedent is the ratio decidendi and this is almost ascertained on an analysis of the material facts of the case, for a judicial decision is often reached by process of reasoning involving a major premise consisting of a pre-existing rule of law either statutory or judge made and a minor premise consisting of the material facts of the case under immediate consideration (See Halsbury''s Law of England, Vol. 26, 4th Edition 292-293). Every judgment must be read as applicable to the particular facts proved, since the generality of expression which may be found there are not intended to be the expression of the whole law, but general and qualified by the particular facts of the particular case: (See Quinn v. Leathern (1901) AC 495 , H. L. per Lord Halsbury: Miller Mead v. Minister of Housing and Local Government (1963) 2 QB 196 . Decisions on matters of facts are not binding on any other Court and they are binding only on the parties or their privies. The Supreme Court has itself said that decisions of even the highest Courts on question of facts cannot be termed as precedent and what is binding is the ratio of the decision and not any finding on facts (See Prakash Chandra Pathak Vs. State of Uttar Pradesh, .

The facts of two cases cannot be similar (See Dalbir v. State of Punjab AIR 1979 SC 1384 . Each case has its peculiar facts and it is, therefore always risky to apply the precedent on question of facts (See Gurcharan Singh and Another Vs. State of Punjab, .

Legal principles are not magic incantations and their importance lies mere in their application to a given set of facts than in their recital in the judgment (See Shankarlal Gyarasilal Dixit Vs. State of Maharashtra, .

It is thus clear that a ruling of the Supreme Court is the binding law. Similarly, the decision of the High Court is binding in the State in preference to the decision of High Court of other States. There are, however, two exceptions to the binding Authority of a precedent: the rule of sub-silentio and being in per incuriam, A decision sub-silentio. in the technical sense, when a particular point of law involved in the decision is not perceived by or not present in the mind of the Court. A decision which is not express, not founded on reasons and not proceeding on consideration of the issue cannot be deemed to be a law declared and having binding effect under Article 141 -''In curia'' literally means carelessness. In practice per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The ''quotable in law'' is avoided and ignored if it is rendered ''in ignoratium of a statue or the other binding Authority''. It has been accepted, approved and adopted by the Supreme Court while interpreting Article 141 of the Constitution (See State of U.P. and Another Vs. Synthetics and Chemicals Ltd. and Another, .

When there is some inconsistency between two Supreme Court decisions, one by a Bench of three Judges and the other of four Judges, the later has to be followed (See Parag Lal Behari Vs. Deputy Director of Consolidation, Gorakhpur and Others, .

Out of two Supreme Court''s contradictory decisions on a point of law the former, a decision by a larger Bench, rather than the later should be followed (See J.K. Kapur and Others Vs. State of Gujarat and Others, .

Where two equal Supreme Court Benches had considered identical matters, the High Courts are bound by the Bench whose decision was categorical and positive (See Lalit Narayan Mishra Institute of Econmic Development and Social Change and Others Vs. State of Bihar and Others, .

In the case of conflict between decisions of the Supreme Court, it is the latest pronouncement which will be binding upon the inferior Court unless the earlier was of a larger Bench (See Mattulal Vs. Radhe Lal, .

If the later decision is of a larger Bench, the previous decision will be deemed to have been overruled and completely wiped out (See Ramdas v. Sadanand AIR 1980 SC 111).

It has been above that precedent is law only in regard to certain binding principles. It is a rule deducible from the application of law to the facts of the case and the circumstances of the case which constitute its ratio decidendi. It is not conclusion based upon facts which may appear to be similar. One additional or different facts can make a world of difference between the conclusions in two cases (See The Regional Manager and Another Vs. Pawan Kumar Dubey, .

It will be useful to make reference to certain authorities of the Supreme Court wherein law has been declared and clarified regarding the binding force of precedent.

It is a judgment of majority which constitutes the law declared by the Supreme Court (See John Martin Vs. State of West Bengal, .

While applying the decision in a later case the later Court should try to ascertain the true principle laid down by the previous decision in the context of the question involved. The later Court should not unnecessarily expand the scope and Authority of the precedent. It has also been held by the Supreme Court that a mere expression of disapproval by another Bench does not overrule an earlier decision, it subsists until it has been expressly overruled by a larger Bench (See Prakash Amichand Shah Vs. State of Gujarat and Others, .

In order to keep the law certain and to avoid any slant it is not expedient to look back into such previous cases. However, the Court can look into those previous cases to ascertain as to how that proposition was arrived at and whether it was applicable to the case under consideration, (See Keshav Chandra Joshi and others etc. Vs. Union of India and others, .

There is no such thing as a judicial precedent on facts though Counsel and even Judges are sometimes prone to argue and to act as if they were (See Willie (William) Slaney Vs. The State of Madhya Pradesh, .

When a Full Bench of a High Court relying upon a Supreme Court decision took a particular view of statutory provision, it was held by the Supreme Court that it was binding on another Bench of equal strength unless that Full Bench decision had directly been overruled by the Supreme Court or it by necessary implications became unsustainable. Latter Full Bench cannot disagree with the earlier Full Bench on the ground that due to a subsequent Supreme Court decision the earlier Full Bench decision was no more good law (See Shyamaraju Hegde Vs. U. Venkatesha Bhat and Ors, .

When some principle has been laid down by the Supreme Court or some practice deprecated, it should be the duty of the High Court or a subordinate Court to follow a decision of the Supreme Court even though it may not have the approval of the Judge of the inferior Court when the Supreme Court decision is cited (See Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, .

33 A judgment of the High Court which refuses to follow the directions (See Narinder Singh Vs. Surjit Singh, of the Supreme Court or seeks review of a decision of the High Court which had been set aside by the Supreme Court is a nullity (See Smt. Kausalya Devi Bogra and Others Vs. Land Acquisition Officer, Aurangabad and Another, .

Judicial discipline requires that a Bench of two Judges should not disagree with the decision of a Bench of three Judges but if the Bench of two Judges is inclined to disagree with the Bench of three Judges on the ground that it does not lay down the correct law, the Bench of two Judges should refer, the case to a larger Bench (See Ujagar Prints Vs. Union of India (UOI), .

Regarding precedent of coordinate Court the Supreme Court has made declaration in a number of cases which may be summed up as under:

(i) A Division Bench of two Judges cannot overrule the decision of another Bench of two Judges. If they are unable to agree, they should refer it to a larger Bench (See Union of India (UOI) and Others Vs. Godfrey Philips India Ltd., .

(ii) It is open to the Judge to differ from it but in that case the only judicial alternative is to refer it to a larger Bench and not to dispose of the appeal by taking contrary view. Judicial discipline as well as decorum are suggested as the only course (See Eknath Shankarrao Mukkawar Vs. State of Maharashtra, .

(iii). A division Bench decision made in appeal whether from an original suit or from a Writ Petition, its ratio is binding on subsequent Division Bench (See Ram Jivan Vs. Smt. Phoola (Dead) by Lrs. and Others, .

(iv) A Division Bench cannot take a view contrary to another Division Bench (See Sri Venkateswara Rice, Ginning and Groundnut Oil Mill Contractors Co. and Others Vs. State of Andhra Pradesh and Others,

(v) If a single Judge disagrees with a decision of another single Judge, matter should be referred to a larger Bench for authoritative decision (See Shridhar Vs. Nagar Palika, Jaunpur and Others, .

A review of the declaration of law made by the Supreme Court would go to show that the contention of the learned Counsel for the applicant has no force in the facts and circumstances of the case in which impugned orders were passed by the learned Magistrate and the Sessions Judge. The two Division Bench rulings of this Court were cited before the revisional Court and the later ruling was followed by the revisional Court. The later Division Bench which has decided the case of Indradeo Pandey (supra) had considered the earlier Division Bench ruling in the case of Sohan Lal Burman Csupra) and had followed the Supreme Court rulings in coming to the conclusion that the order of attachment u/s 146(1) Code of Criminal Procedure was an interlocutory order.

When there are conflicting decisions of Court of coordinate jurisdiction; the later decision is to be preferred, if reached after full consideration of earlier decisions (See Halsbury''s Law of England, Vol. 26, IVth Edition).

It has been held by the Calcutta High Court in Sachindra Nath Mukherji Vs. The State of West-Bengal and Others, , that where a previous Division Bench came to a different conclusion, it was wholly unnecessary for a later Division Bench of the High Court to refer the matter to a Full Bench because of the later decisions of the Supreme Court.

It has been held by Orissa High Court that when a Division Bench decision is in conflict with the Supreme Court decision then the said Division Bench decision may be ignored even if the said Division Bench decision is not overruled subsequently. There is no need to refer it to a larger Bench (See Jagbandhu Sahu v. State of Orissa AIR 1961 Ori. 299).

The Division Bench rulings cited before the revisional Court were in conflict with each other, but the revisional Court followed the latter ruling which had considered the earlier Division Bench ruling after following the Supreme Court rulings. It may be noted that in the subsequent rulings also this Court has taken the view that the order passed u/s 146(1) Code of Criminal Procedure attaching the property in dispute is an interlocutory order within the meaning of Section 397(2)

In Jai Prakash Singh v. Radhey Shyam Singh 1987 ACC 464, it has been held by a single Judge of the Court that a preliminary order passed u/s 145(1) or 146(1) can only be termed as an interlocutory order and not a final order. In this case various authorities including that of Madhu Limaye''s case have been discussed.

In Harish v. State 1984 ACC 22, it has been held that order passed u/s 146(1) attaching property in dispute is an interlocutory order within Section 397(2).

In Ashfaq Hussain Vs. Entram Hussain and Others, , in which it has been held that order of attachment by the Magistrate u/s 146(1) Code of Criminal Procedure is an interlocutory order, the Division Bench case of this Court in Indradeo Pandey v. Smt. Bhagwati Devi ALJ 687, has been followed.

It is thus evident that the consistent view of this Court following the principles laid down by the Supreme Court in Madhu Limaye''s case is that the order passed u/s 146(1) Code of Criminal Procedure is an interlocutory order within the meaning of Section 397(2). The revisional Court has followed the later Division Bench ruling in Indradeo Pandey''s case (supra) in which the earlier Division Bench ruling was elaborately considered. It thus cannot be said that the revisional Court has committed any illegality by following the ratio decidendi of the subsequent Division Bench ruling.

It is not disputed that in the present case the proceedings u/s 145 Code of Criminal Procedure are pending before the Magistrate after passing preliminary order u/s 145(1) dated 4-11-1982 and the attachment order u/s 146(1) dated 2-3-1983 and that the proceedings have not been terminated by the said attachment. Magistrate''s jurisdiction to proceed with the enquiry u/s 145 Code of Criminal Procedure does not end when an attachment is made u/s 146(1) on the ground of emergency (See Mathuralal Vs. Bhanwarlal and Another, .

There is no legal bar to the continuance of the proceedings u/s 145 Code of Criminal Procedure before the learned Magistrate and no illegality has been committed by the revisional Court in passing the impugned order after following the subsequent Division Bench ruling of this Court in which Supreme Court cases of Amar Nath and Others Vs. State of Haryana and Another, , Madhu Limaye Vs. The State of Maharashtra, and V.C. Shukla Vs. State through C.B.I., , and all other cases of this Court, decided earlier were considered. The earlier Division Bench case of Sohan Lal (supra) was elaborately considered in the subsequent Division Bench case of Indradeo Pandey (supra). On facts and clear pronouncement of the Supreme Court the subsequent Bench which decided the case of Indradeo Pandey did not consider it necessary to refer the matter to the larger Bench. In view of the ruling of the Supreme Court in Madhu Limaye v. State of Maharashtra (supra) the law laid down in Division Bench case of Sohan Lal Verma (supra) was disapproved and found to be not a good law by the subsequent Division Bench.

There is another aspect also, which deserves mention. The applicants availed of the remedy of revision against the impugned order passed by the learned Magistrate under Sections 145(1) and 146(1) Code of Criminal Procedure and after its dismissal approached this Court u/s 482 Code of Criminal Procedure for quashing of the impugned order passed by the Sessions Judge, Jaunpur. A full Bench of our Court in H.K. Rawal v. Nidhi Prakash 1989 ACC 395 (FB) has held that the order of the Sessions Judge in revision cannot be interfered with by the High Court in the exercise of its inherent powers u/s 482 Code of Criminal Procedure except in cases where it has resulted in the abuse of process of the Court or interference is called for to secure the ends of justice. In that Full Bench case, their Lordships have held that a law laid down by this Court in Khem Singh v. Nathu Ram Sharma 1978 ACC 262, was not a good law in view of the decision of the Supreme Court in the Case of Rajan Kumar Manchanda v. State of Karnataka 1988 ACC 56. The Full Bench considered the case of Rajan Kumar Manchanda v. State of Karnataka 1988 ACC 56 , Madhu Limaye Vs. The State of Maharashtra, , Raj Kapoor and Others Vs. State and Others, and V.C. Shukla Vs. State through C.B.I., . Their Lordships at page 399 of the report observed that the order of the Sessions Judge in revision in cases under Sections 125, 133/138 and 145 Code of Criminal Procedure and against an order of discharge by the Magistrate cannot be interfered with by the High Court either in exercise of its revisional powers at the instance of the same party or suo moto or in the exercise of its inherent powers u/s 482 Code of Criminal Procedure. In a recent judgment of the Supreme Court in case of Dharampal and others Vs. Smt. Ramshri and others, , it has been held that Section 397(3) Code of Criminal Procedure bars a Second Revision Application by the same party. It is now well settled that inherent powers u/s 482 Code of Criminal Procedure of the Court cannot be utilized for exercising powers which are specially barred by the Code. In that case, Magistrate had passed an order dated 17-10-1978, withdrawing the attachment and the revision had been dismissed by the Sessions Judge. Two questions arose in the aforementioned appeal before the Supreme Court; firstly, whether the High Court could entertain the Second Revision application in exercise of its inherent powers u/s 482 of the Code and secondly, whether the interpretation placed by the High Court on the provisions of Sections 145 and 146 of the Code is correct. It is, thus, quite clear from the aforecited ruling that what is barred by the Criminal Procedure Code, cannot be allowed indirectly u/s 482 Code of Criminal Procedure.

Inherent jurisdiction of this Court u/s 482 Code of Criminal Procedure can only be invoked in the case of abuse of process of Court or to secure the ends of justice. Section 482 Code of Criminal Procedure closely resembles Section 151 of the CPC and proceeds on the same principle and deals with inherent powers of the High Court. The rule of inherent powers as its source is in the maxim "Quadolex aliquid alicui concedit concedere videtor id sine, quo ipsa ess non protest." Which means that when it gives also those things without which the thing itself could not exist. The term of Section 482 Code of Criminal Procedure are wide but at the same time it must be clearly understood that they do not extend the- jurisdiction of the High Court to the matters which are not inherently under its jurisdiction. The power being extraordinary ought to be resorted as far as possible for extraordinary cases.

The point raised by the learned Counsel for the applicants is not covered by Section 482 Code of Criminal Procedure as there is no inherent jurisdiction to review or reconsider the judgment of the lower Court in the criminal matter except where the judgment was pronounced without jurisdiction or in violation of principle of natural justice or possibly in a case where it was obtained by abuse of process of a Court which will really amount to its being without jurisdiction. The High Court cannot entertain an application u/s 482 Code of Criminal Procedure merely because the lower Court while deciding the law point had decided the same in an incorrect manner which is alleged to have resulted in injustice to the applicant, the reason being that the Court may decide rightly or wrongly (See Ram Shanker Vs. State, .

The impugned orders, however, do no suffer from any illegality or want of jurisdiction, inherent powers do not confer an arbitrary jurisdiction on the High Court to act according to whim or caprice. That statutory power has to exercised sparingly, with circumspection and in the rarest of rare cases. (See Kurukshetra University and Another Vs. State of Haryana and Another, . In the present case, there is no illegality in the impugned orders, nor said orders are without jurisdiction. As already stated above, the Magistrate passed the impugned order on the basis of material indicating that there was apprehension of breach of peace and the revisional Court passed the impugned order by following subsequent Division Bench ruling or this Court which followed the proposition of law laid down by the Supreme Court and in which earlier Division Bench ruling was elaborately considered. The proceedings have not been terminated by the impugned attachment order and as already stated, there is no legal bar to the continuance of the proceeding u/s 145 Code of Criminal Procedure before the learned Magistrate. Hence, there is neither any illegality, nor abuse of process of the Court, nor the quashing of impugned orders is necessary for securing the ends of justice.

No other point was argued.

In view of my foregoing discussion, I do riot find it a fit case which calls for interference in the matter by inherent jurisdiction u/s 482 Code of Criminal Procedure.

The application is devoid of merits and is liable to be dismissed. It is accordingly dismissed.