Surendra Singh and Others vs The State of Bihar and Others

N.P. Singh, J.—The petitioners have invoked the jurisdiction of this Court under Article 227 of the Constitution, for quashing the order passed by the learned Additional Sessions Judge, Arrah, dismissing the criminal revision application filed on behalf of the petitioners. That revision application had been filed on behalf of the petitioners u/s 397(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ''the Code''), for setting aside an order passed by the Sub divisional Magistrate, converting a proceeding u/s 144 of the Code into one u/s 145 of the Code. It appears that the petitioners first filed a criminal miscellaneous application u/s 482 of the Code which was listed for admission before a learned Judge of this Court. The learned Judge was of the opinion that as the petitioners had already filed a criminal revision application before the Sessions Judge, it was not open to them to invoke the inherent power of this Court u/s 482 of the Code for quashing of the order passed by the Sub divisional Magistrate aforesaid, in view of section 397(3) of the Code which bars second revision application before this Court. Thereafter the petitioners filed the present application for exercise of power by this Court under Article 227 of the Constitution.

At the stage of admission itself, the question of maintainability of this writ application was raised, in view of a Full Bench decision of this Court in the case of Ramesh Kumar Ravi alias Ram Prasad v. The State of Bihar and 3 others (1987 PLJR 650). In the aforesaid case, it has been held that judgments and orders of the Judicial Magistrates and the Courts of Sessions would be totally out of the purview of a writ of certiorari and amenable only to the process of appeal, revision, or the inherent jurisdiction of the High Court u/s 482 of the Code.

A Bench, while hearing this application for admission, in view of the judgment of the Supreme Court in the case of Chandrasekhar Singh and Others Vs. Siya Ram Singh and Others, , referred the present application to a Larger Bench to examine the correctness of the view expressed by the earlier Full Bench.

Article 227(1) of the Constitution says that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. The expression ''courts'' in normal course shall include even the courts of Magistrate and courts of Session, unless it is found that by any other provision they have been excluded from the supervisory power of the High Court under Article 227 of the Constitution.

A Full Bench of the Bombay High Court in the case of Shripatrao Dajisaheb Ghatge and Another Vs. The State of Maharashtra and Another, considered whether the expression "court" in Article 227 includes criminal courts. It was said:--

We are of the view that the High Court''s power of judicial superintendence under the amended Art. 227 certainly covers judgments of all courts meaning thereby all regular civil and criminal courts constituted under the hierarchy of courts subject to its appellate or revisional jurisdiction...

The Supreme Court has considered the jurisdiction of the High Court under Article 227 of the Constitution in connection with an order passed u/s 146 of the Code of Criminal Procedure of 1898 (hereinafter referred to as ''the Old Code'') in the aforesaid case of Chandrasekhar Singh and others v. Siya Ram Singh and others (supra). Section 146 of the Old Code said that the finding of the civil court given under that section on question of possession was final and could not be challenged by way of appeal, review or revision. In spite of the bar imposed, the High Court entertained a criminal revision application for exercise of power under sections 435 and 439 of the Old Code and set aside the findings recorded by the civil court. The person aggrieved filed a special leave application before the Supreme Court. After referring to several judgments including two Full Bench judgments of this Court, the Supreme Court came to the conclusion that the finding recorded by civil court on reference by a Magistrate u/s 146 of the Old Code, cannot be appealed against or challenged by way of review or revision. Whether such finding can be interfered by the High Court in exercise of the power under Article 227 of the Constitution, it was pointed out as follows:--

It is admitted that the powers conferred on the High Court under Art. 227 of the Constitution cannot in any way be curtailed by the provisions of the Criminal Procedure Code. Therefore, the powers of the High Court under Art. 227 of the Constitution can be invoked in spite of the restrictions placed under S. 146 (1-D) of the Criminal Procedure Code.

It was further said.

Mr. Lal Narain Sinha submitted that the order of the High Court could be sustained as the power of the High Court under Art. 227 cannot be questioned. While there could be no dispute that the power of the High Court under Art. 227 cannot be curtailed under S. 146 of the Criminal Procedure Code, we do not think that the facts of the case would justify the High Court to interfere under Art 227.

Again in the case of Jagir Singh Vs. Ranbir Singh and Another, in connection with an order for maintenance passed by the Magistrate under the Code, it was said that High Court can interfere with such order under Art. 227 of the Constitution although a revision application filed by the person aggrieved u/s 397 of the Code has already been dismissed by the Sessions Judge but there must be very exceptional circumstances specially when the bar u/s 397 (3) of the Code was applicable.

The question whether an order passed by the Magistrate on the basis of finding recorded by the civil court u/s 146 of the Old Code is amenable to the jurisdiction of the High Court under Article 227 of the Constitution, has been examined by this Court in the case of Raja Singh and Another Vs. Mahendra Singh and Others, , by a Full Bench consisting of three Judges. It was held that sub-section (1-D) of section 146 of the Old Code did not affect the power of superintendence, which has been vested in the High Court under Article 227 of the Constitution. The correctness of that judgment was later examined by a Full Bench consisting of Fire Judges of this Court in the case of Dewani Choudhary v. Chaturi Manjhi (1971 BLJR 116: 1972 Cr. L.J., 134) and it was reiterated that sub-section (1-D) of section 146 aforesaid could not take away the power of judicial interference which the High Court possesses under Article 227 of the Constitution. Both the aforesaid Full Bench judgments have been approved by the Supreme Court in the aforesaid case of Chandrasekhar Singh (supra).

Now, so far the Full Bench decision of this Court in the case of Ramesh Kumar Ravi alias Ram Prasad v. The State of Bihar and 3 others (1987 PLJR, 650) the correctness whereof is under challenge, it may be pointed out that the question under consideration was as to whether the judicial orders of a criminal court (stricto sensu) under the Code of Criminal Procedure, are amenable to quashing by a writ of certiorari?"

The Full Bench came to the following conclusion--

If the larger principle laid down in Mirajkar''s case is that no writ would lie against the judicial process established by law, then plainly the judgments and orders of the Judicial Magistrate and the court of session would be totally out of the purview of a writ of certiorari and amenable only to the process of appeal, revision or the inherent jurisdiction of the High Court u/s 482 of the Code and thereafter by way of a special leave to their Lordships of the Supreme Court.

(Emphasis supplied)

While answering the question aforesaid it was said as follows--

In the light of the foregoing discussions the answer to the question No. (iv) posed at the very outset is rendered in the negative and it is held that the judicial orders of a criminal court stricto sensu under the Code of Criminal Procedure are not amenable to quashing by a writ of certiorari.

(emphasis supplied)

With due respect for the Hon''ble Judges, who were members of the aforesaid Full Bench, in view of the judgments aforesaid of the Supreme Court and earlier Full Bench judgments of this Court it is difficult to hold that orders of Judicial Magistrates and the courts of session would be totally out of the purview of a writ of certiorari. If it is brought to the notice of this Court that a court has passed an order assuming jurisdiction although statute in question has not vested such jurisdiction or a court is conducting its proceeding in flagrant violation of the principles of natural justice because of which grave injustice is likely to be done, can such order and proceeding be allowed to continue when ample power has been vested in this Court by framers of the Constitution? The answer is in negative.

In the Full Bench judgment under consideration reliance was placed mainly on the case of Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, . It appears that in that case a Judge of Bombay High Court had passed an order forbidding the publication of the "evidence of a witness for maintaining the secrecy of the proceeding of the Court". Being aggrieved by that order, a petition under Article 226 of the Constitution was filed, before the Bombay High Court, which was dismissed by a Division Bench of that Court on the ground that the said writ application had been filed for quashing a judicial order of the High Court, which was not amenable to writ jurisdiction under Article 226 of the Constitution. Thereafter, the petitioner of the aforesaid writ application filed an application under Article 32 of the Constitution before the Supreme Court, alleging that by the aforesaid restraint order there has been infringement of fundamental right under Article 14 of the Constitution. The Supreme Court rejected the said contention of the petitioner in the following words:--

The order is not collateral in the sense that the jurisdiction of the Judge to pass that order can be challenged otherwise than by a proceeding in appeal. Just as an order passed by the Court on the merits of the dispute before it can be challenged only in appeal and cannot be said to contravene the fundamental rights of the litigants before the Court so could the impugned order be challenged in appeal under Art. 136 of the Constitution, but it cannot be said to affect the fundamental rights of the petitioner.

In my view, in the aforesaid case the Supreme Court has not laid down that orders passed by a criminal courts, subordinate to High Court, are not amenable to the jurisdiction to the High Court under Article 227 of the Constitution. There the writ petition had been dismissed by the Division Bench of the High Court on the ground that it had been filed for quashing a judicial order passed by a Judge of the High Court itself. The Supreme Court dismissed the application under Article 32 of the Constitution on the ground that the order in question did not infringe any fundamental right of the petitioner. It need not be pointed out that the order which was being challenged before the High Court as well as before the Supreme Court had not been passed by a criminal court being subordinate to the High Court. As such, it has to be held that the judgment of the Supreme Court in the case of Naresh Shridhar Mirajkar (supra) had no bearing on the question which was under consideration of the Full Bench. Unfortunately, the attention of the learned Judges, who were Members of the Full Bench in the case under consideration was not drawn to the two earlier Full Bench judgments of this Court, in the cases of Raja Singh (supra) and Dewani Choudhary (supra) and the two judgments of the Supreme Court in the cases of Chandrasekhar Singh (supra) and Jagir Singh (supra) where it has been authoritatively held that the High Court in exercise of power under Article 227 of the Constitution can interfere with orders passed by a court subordinate to the High Court.

Any attempt to obliterate the power of this Court under Article 227 of the Constitution, by any statutory provision or a judicial pronouncement shall be a futile attempt because that will amount to abridging or curtailing the power, which flows from the Constitution itself. But at the same time it has to be borne in mind that the extraordinary power vested in the High Court under Article 227 of the Constitution is to be exercised only to keep the courts subordinate to the High Court within the bounds of their authority so that they may perform their duties and do not exceed their jurisdiction. In the case of Miss Maneck Gustedji Burjarji Vs. Sarafazali Nawabali Mirza, it was pointed out:--

It must be realised that the jurisdiction under Art. 227 of the Constitution is an extraordinary jurisdiction which is to be exercised sparingly and in appropriate cases and it is not to be exercised as if it were an appellate jurisdiction or as if it gave unfettered and unrestricted power to the High Court to do whatever it liked.

In the case of Chandrasekhar Singh and others (supra) the Supreme Court having held that any statutory bar cannot affect the power of the High Court under Article 227 gave a note of caution in respect of exercise of such power by High Court against an order passed by a criminal court as follows:--

But the scope of interference by the High Court under Art. 227 is restricted. This Court has repeatedly held that "the power of superintendence conferred by Art. 227 is to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors vide Waryam Singh and Another Vs. Amarnath and Another, . In a later decision, Nagendra Nath Bora and Another Vs. The Commissioner of Hills Division and Appeals, Assam and Others, , the view was reiterated and it was held that the powers of judicial interference under Art. 227 of the Constitution are not greater than the power under Art. 226 of the Constitution, and that under Art. 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority. In a recent decision AIR 1975 1297 (SC) this Court reiterated the view stated in the earlier decisions referred to and held that the power of superintendence under Art. 227 of the Constitution cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as the Court of appeal and that the High Court cannot in exercise of its jurisdiction under Art. 227 convert itself into a court of appeal.

It need not be pointed out that if the High Court entertains an application under Article 227 after rejection of a criminal revision application by the court of session, then in many cases it may amount to a second revision application before this Court, which is barred u/s 397 (3) of the Code or may amount to circumventing the object under sub-section (3) of section 397 of the Code. Sub-section (3) of Section 397 of the Code is as follows:--

397 (3). 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 either of them.

The Supreme Court in the case of Jagir Singh v. Ranbir Singh and another (supra) has considered this aspect of the matter:--

If the revision application to the High Court could not be maintained under the provisions of the Criminal Procedure Code, could the order of the High Court be sustained under Art 227 of the Constitution, as now suggested by the respondent. In the first place the High Court did not purport to exercise its power of superintendence under Article 227. The power under Article 227 is a discretionary power and it is difficult to attribute to the order of the High Court such a source of power when the High Court itself did not, in terms, purport to exercise any such discretionary power. In the second place the power of judicial superintendence under Art. 227 could only be exercised, sparingly, to keep subordinate Courts and Tribunals within the grounds of their authority and not to correct mere errors. Where the statute banned the exercise of revisional powers by the High Court, it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of superintendence was not meant to circumvent statutory law.

(emphasis supplied).

In the aforesaid judgment the Supreme Court while conceding the power of interference to the High Court under Article 227 of the Constitution against an order passed by a criminal court, it was pointed out that where the statute has banned the second revision application before the High Court it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution.

Whether the High Court can exercise such power of superintendence only when no appeal or revision has been provided under the Code against orders passed by such criminal courts or even in cases where the persons concerned have availed the remedy provided under the Code for setting aside such orders? It may be urged that in the aforesaid two Full Bench decisions of this Court and in the case of Chandrasekhar Singh and another (supra) before the Supreme Court, no internal remedy by way of appeal or revision had been provided, rather there was a bar so far exercise of appellate or revisional power of this Court under the Old Code is concerned. In my view, whether a bar has been placed or not on exercise of the appellate or revisional power under the Code itself is not of much consequence so far as the power of this Court under Article 227 of the Constitution is concerned. But there may be three situations under which the power under Article 227 may be invoked. Firstly, where no appeal or revision has been provided against the order in question. Secondly, where the person aggrieved has already filed a revision application before Sessions Judge and his revision application to this Court against the order passed by the Sessions Judge is barred u/s 397 (3) of the Code. The third eventuality may be where although a revision application or an application u/s 482 of the Code is maintainable before this Court, still an application under Article 227 is filed. In my view, there is no question of exercise of power under Article 227 in the third category of cases, the remedy being available to petitioners under the provisions of the Code itself. So far cases falling in the first category i.e. where no appeal or revision has been provided, as has been said by Supreme Court, it will require an exceptional case before power under Article 227 is to be exercised. In respect of cases coming under second category i.e. where revision applications have already been dismissed by the Sessions Judge, and bar u/s 397 (3) is applicable, for interference trader Article 227, very exceptioaal circumstances must exist in view of the judgment of the Supreme Court in the case of Jagir Singh (supra).

Accordingly, I am of the view:--

(i) Judicial orders passed by the criminal courts are amenable to the jurisdiction of the High Court under Article 227 of the Constitution.

(ii) Where appeals or revision applications or applications u/s 482 of the Code are maintainable before this Court for setting aside such orders there is no question of exercise of power under Article 227.

(iii) Where appeals or revision applications or applications u/s 482 of the Code cannot be entertained by this Court for setting aside such orders, power under Article 227 can be exercised in exceptional cases.

(iv) Where petitioner has already invoked the revisional jurisdiction of the Sessions Judge u/s 397 of the Code and his second revision application to this Court is barred u/s 397 (3) it would indeed require very exceptional circumstances to warrant interference under Article 227 of the Constitution, since the power of the superintendence is not meant to circumvent the statutory bar.

In view of the above conclusions, it has to be held that this writ application cannot be dismissed as not maintainable. Accordingly, I direct that the application be listed for admission before any appropriate Division Bench for disposal in accordance with law.

Before I part with this judgment I may mention that this case has been referred to a larger Bench for consideration of the question whether the power of the High Court under Article 227 of the Constitution in relation to any order passed by a criminal court, subordinate to the High Court can be curtailed in any manner. As such, I have considered that very question. I make it clear that I am not expressing any opinion on the question whether in exceptional cases an application u/s 482 of the Code can be entertained by this Court even if the petitioner had filed a revision application u/s 397(1) of the Code before the Session Judge, which has been dismissed. It should not be understood that I have approved the order passed by the learned Judge that as the petitioner had already filed a criminal revision application before the Sessions Judge it was not open to them to invoke the inherent power of this Court u/s 482 of the Code.

B.N. Agrawal, J. I entirely and respectfully agree with My Lord Mr. Justice N.P. Singh.

N. Pandey, J. I also agree in entirety with my learned Brother N.P. Singh, J.

Binod Kumar Roy, J: 20. Chief Justice Hughes observed that Judges are not simply to decide cases but to decide them as they think they should be decided and while it may be regrettable that they cannot always agree, it is better that their independence be maintained and recognised (Prophets with Honour, Alan Barth, 1974 Edition). While agreeing with the conclusion of brother Singh, J. that these writ petitions which have been placed ''For Admission'', are maintainable but from the option of silence I proceed to record my own reasons and other conclusions as well, as graver issue like scope and extent of inherent jurisdiction, in any view, is intricately and essentially involved vis-a-vis Articles 226 and and 227 of the Constitution in their cases. All these brought me to the fore of writing this separate order.

The petitioners in these petitions under Articles 226 and 227 of the Constitution assert that a consolidation proceeding in substance is a civil proceeding. This Court in S.P. Singh v. The State of Bihar 1987 B.L.J. 281 held that no parallel proceeding u/s 145 of the Code of Criminal Procedure should be continued when a consolidation proceeding is pending. Accordingly 145 Cr. P.C. proceedings initiated by the impugned orders during the pendency of consolidation, proceedings between the parties will be an abuse of the process of the Court and be quashed.

Sri Akhauri Binod Shekhar Sinha, learned counsel appearing for the petitioners, submits as follows:

(i) Cr. Misc. Nos. 10681 and 10682 of 1986 filed by the petitioners invoking inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure having been held to be not maintainable, the petitioners have got no remedy but to invoke jurisdiction of this Court under Articles 226 and 227 of the Constitution of India for quashing of the impugned orders by issuance of writs of Certiorari. The proceedings u/s 145 of the Code were illegally initiated showing utter disregard to the law declared by this Court in the case reported in 1987 B.L.J. 281 and accordingly their continuance will be an abuse of the process of the Court. To secure the ends of justice also it will be necessary that the proceedings in question be quashed.

(ii) The Full Bench decision in Ramesh Kumar Ravi, v. The State of Bihar, reported in 1987 P.L.J.R. 650, holding that judicial orders of the criminal court "stricto sensu" under the Code are not amenable to quashing by a writ of Certiorari, is not correct and be overruled inasmuch as the said decision being by three judges has overlooked the binding precedent of earlier three judges Full Bench Judgment in Raja Singh and Another Vs. Mahendra Singh and Others, , as well as of a Full Bench of five judges in Diwani Chaudhury v. Chaturi Manjhi, 1971 B.L.J.R. 116 also the decision of the Supreme Court in Chandrasekhar Singh and Others Vs. Siya Ram Singh and Others, affirming the said Full Bench decisions. Decisions of the Supreme Court in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, , Madhu Limaye Vs. The State of Maharashtra, were also not considered therein. In any view of the matter, in view of a later judgment of the Supreme Court, Jetha Bai and Sons, Jew Town, Cochin and Others Vs. Sunderdas Rathenai and Others, holding that the power of superintendence of this Court under Article 227 cannot be taken away, the the Full Bench in Ramesh Kumar''s case is not a good law.

The learned Advocate General submitted that the Full Bench decision in Ramesh Kumar''s case (supra) is in the line of Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, . He also referred to paragraphs 7 to 10 of the decision of the Supreme Court in T.C. Basappa Vs. T. Nagappa and Another, laying down scope of a writ of Certiorari.

Brother N.P. Singh, J. has already considered Raja Singh and Another Vs. Mahendra Singh and Others, , Diwani Chaudhury''s case, 1971 B.L.J.R. 116, Ratnam Chettiar and Others Vs. S.M. Kuppuswami Chettiar and Others, , Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, as well as Jagir Singh Vs. Ranbir Singh and Another, .

The Supreme Court in Chandramohan v. State of U.P., AIR 1966 S.C. 1987 through Subba Rao, C.J., speaking for five judges Constitution Bench, held as follows:

the fundamental rule of interpretation is the same whether one construes the provision of the Constitution or an Act of Parliament, namely, that the Court will have to find out the expressed intention from of the Constitution or the Act as the case may be. But, if, "however, two constructions are possible then the Court must adopt that which will ensure smooth and harmonious working of the Constitution and eschew the other which will lead to absurdity or give rise to practical inconvenience or make well established provision of existing law nugatory.

The relevant provisions herein are Articles 226 and 227 of the Constitution of India and Sections 397(3) and 482 of the Code of Criminal Procedure.

Apart from Chandrashekhar Singh''s case referred to by Brother Singh, J. in Umaji Keshao Meshram and Others Vs. Radhikabai and Another, , Madon J., held as follows:

Further the insertion of Articles 226, 227 and 228 in the Constitution without making them subject to any law to be made by the appropriate legislature put these Articles beyond the legislative reach of Parliament and the State Legislature with the result that these Articles can only be curtailed or excluded with respect to any matter by a Constitutional amendment and not by ordinary legislation.

A three Judges Division Bench in Jetha Bai and Sons, Jew Town, Cochin and Others Vs. Sunderdas Rathenai and Others, , Mukharji and Natrajan, JJ. laid down that ".........the Legislature has not taken away and indeed it cannot take away the power of superintendence of the High Court over all the courts and tribunals which are within the territories in relation to which the High Court exercises its jurisdiction."

I find no conflict at all between the provisions of Articles 226 and 227 of the Constitution of India on the one hand and subsection 3 of sections 397 and/or Section 482 of the Code of Criminal Procedure. Accordingly, I have got no hesitation in holding about the maintainability of these writ applications.

The general rule, however, is that the High Court would refuse the writ if an alternative legal remedy is available to the petitioners provided the same is adequate, efficacious, proper and not onerous (see Veerappa Pillai Vs. Raman and Raman Ltd. and Others, ; C.A. Abraham, Uppoottil, Kottayam Vs. The Income Tax Officer, Kottayam and Another, ; Shivram Poddar Vs. Income Tax Officer, Central Circle II, Calcutta, and Another, and Commissioner of Income Tax, Madhya Pradesh, Nagpur and Bhandara Vs. Binodiram Balchand, ). However, rule of exhaustion of alternative remedy is not inflexible rule and it is a rule of policy, convenience and discretion and it does not affect the High Court''s writ jurisdiction as such (see State of U.P. vs. Mohd. Noor, AIR 1958 S.C. 86; Baburam Prakash Chandra Maheshwari Vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar, ). An alternative legal remedy will also not be a bar if it is illusory (see A.V. Venkateswaran, Collector of Customs, Bombay Vs. Ramchand Sobhraj Wadhwani and Another, ). The exceptions to the Rule are many and need not be exhausted.

It is also well settled that the High Court may intervene under Article 227 if a court or tribunal acts arbitrarily, or it declines to do what is legally incumbent upon it do and thereby refuses to exercise jurisdiction vested by law or it exceeds its jurisdiction (see Waryam Singh and Another Vs. Amarnath and Another, and Dahya Lal and Others Vs. Rasul Mohammed Abdul Rahim, ); or it acts against natural justice (see Santosh Kumar Vs. Bhai Mool Singh, ); or its findings are based on no evidence or are otherwise perverse (see Nibaran Chandra Bag etc. Vs. Mahendra Nath Ghughu, ) or there is an error of law apparent on the face of the record (see Shew Bux Mohata and Others Vs. Bengal Breweries Ltd. and Others, , The Provincial Transport Service Vs. State Industrial Court, , Sardari Lal and Another Vs. Union of India (UOI) and Others, ). Articles 226 and 227 will also be available if the court, tribunal or any authority acts without jurisdiction; or acts with bias; or takes into consideration irrelevant facts along with relevant ones. The illustrations are many and it is difficult to catalogue them. In Maganlal Chhaganlal (P) Ltd. Vs. Municipal Corporation of Greater Bombay and Others, , a seven judges Constitution Bench of the Supreme Court, in paragraph 18 held that the provisions of Articles 226 and 227 of the Constitution of India are no less effective than provisions of a Second Appeal.

It is also well settled that jurisdiction under Article 227 can be invoked by this Court even suo motu (vide Ram Bahal Singh and Others Vs. Chhote Narain Singh and Others, ).

The petitioners revision petitions having been dismissed by the learned Additional Sessions Judge and their applications filed before this Court u/s 482 of the Code of Criminal Procedure having been held to be not maintainable the petitioners have got no remedy as well so far as this Court is concerned.

I further feel my duty to clear the real scope and ambit of the inherent jurisdiction of this Court so that our Constitutional jurisdiction may not be invoked unnecessarily in similar facts and circumstances as in my view the alternative remedy of Section 482 of the Code will be available in other cases.

Section 482 of the Code corresponds to section 561Aof the Code of 1898. It runs as follows:

Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

To the question whether the said provision has conferred a new jurisdiction on the High Court, the answer is emphatic No. Reference in this regard can be made to a five judges Bench decision of the Supreme Court in Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, wherein speaking for the Court, Bachawat J., held as follows:

Section 561-A of the Criminal Procedure Code declared that" nothing in this 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 passed under this Code or to prevent the abuse of process of any Court or otherwise to secure the ends of justice." The section was inserted in the Code by Act XVIII of 1923 to obviate any doubt that these inherent powers have been taken away by the Code. In terms, the section did not confer any power, if only declared that nothing in the Code shall be deemed to limit or affect the existing inherent powers of the High Court, see AIR 1945 18 (Privy Council) ). Then came other enactments which were framed differently. Section 223 of the Government of India Act, 1935, provided:

Subject to the provisions of this part of this Act, to the provisions of any Order in Council made under this or any other Act and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of and the law administered, in any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the Court including any power to make rules of court and to regulate the sitting of the Court and of members thereof sitting alone or in division courts, shall be the same as immediately before the commencement of Part III of this Act."

The section enacted that the jurisdiction of the existing High Courts and powers of the judges thereof in relation to the administration of justice "shall be" the same as immediately before the Commencement of Part III of the Act. The Statute confirmed and reverted in the High Court all its existing powers and jurisdiction including its inherent powers. Then came the Constitution. Article 225 of the Constitution provides:

Subject to the provisions of this Constitution and to the provisions of any law of the appropriate legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of justice in the Court, including any power to make rules of Courts and to regulate the sitting of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution.

The proviso to the Article is not material and need not be read. The Article enacts that the jurisdiction of the existing High Courts and the powers of the Judges thereof in relation to administration of justice "shall be" the same as immediately before the commencement of the Constitution. The Constitution confirmed and revested in the High Court all its existing powers and jurisdiction including its inherent powers, and its power to make rules. When the Constitution or any enacted law has embraced and confirmed the inherent powers and jurisdiction of the High Court which previously existed, that power and jurisdiction has the sanction of an enacted "Law" within the meaning of Article 21 as explained in A.K. Gopalan Vs. The State of Madras, . The inherent powers of the High Court preserved by section 561-A of the Code of Criminal Procedure are thus vested in it by "law" within the meaning of Article 21.

In Hazari Lal Gupta Vs. Rameshwar Prasad and Another, etc., it was laid down that "In exercising jurisdiction u/s 561-A of the Criminal Procedure Code the High Court can quash proceedings if there is any impediment in the institution or continuance of the proceeding (emphasis added).

Untwalia J., speaking for a three judges division bench of the Supreme Court in Madhu Limaye Vs. The State of Maharashtra, , after considering the scope of the revisional jurisdiction and the inherent jurisdiction conferred under the old and new Codes, held as follows:

On a plain reading of section 482, however, it would follow that nothing in this Code, which would include sub-section 2 of section 397, shall be deemed to limit or affect the inherent powers of the High Court,

(emphasis added).

In V.C. Shukla Vs. State through C.B.I., the scope of Section 482 of the Code vis-a-vis sub-section (3) of Section 397 of the Code was examined by the Supreme Court and Fazal Ali, J., while delivering judgment on his behalf as well as Sen J., in a four Judges Bench held as follows:

One of the questions that arose was as to whether an interlocutory order which could be revised u/s 482 of the Code by the High Court because Section 397 (3) permitted the power of revision to be exercised only by the High Court or the Sessions Judge but not by both of them. The limitation contained in Section 397 (3) runs as follows:

(3) In 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.

Sub-section (3), however, does not limit at all the inherent power of the High Court contained in Section 482, as mentioned above. It merely curbs the revisional power given to the High Court or the Sessions judge u/s 397 (1) of the Code.

(Underlining is by me laying emphasis).

Shinghal, J. differed but Desai, J. agreed with the order passed by Fazal Ali, J.

Judgment in Madhu Limaye (supra) was followed again by the Supreme Court by a division bench of two judges in Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, .

In paragraph 6 of this judgment, it was laid down as follows:

It may be noticed that section 482 of the present Code is the ad verbatim copy of Section 561-A of the Old Code. This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the court has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by Subordinate courts. It was under this section that in the Old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or subordinate courts. Thus, the scope, ambit and range of Section 561-A (which is now Section 482) is quite different from the powers conferred by the present Code under the provisions of Section 397. It may be that in some cases there may be overlapping but such cases would be few and far between. It is well settled that the inherent powers u/s 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute. Further, the power being an extraordinary one, it has to be exercised sparingly.

In the Ratnam Chettiar and Others Vs. S.M. Kuppuswami Chettiar and Others, : The Newabganj Sugar Mills Co. Ltd. and Others Vs. The Union of India (UOI) and Others, it was observed as follows:

The inherent power has its roots in necessity and its breadth is coextensive with the necessity" though cautioning in the very next line that "certainly we cannot go against any statutory prescription.

In Rajan Kumar Manchanda''s case, J.T. (1987) 4 S.C. 637, it appears that a second criminal revision was filed by the unsuccessfull State and on the facts of that case it was held by the two Judges Division Bench of the Supreme Court that "We are satisfied that this is a case where the High Court had no jurisdiction to entertain the revision," It further appears that in that case a truck was released by the Magistrate in favour of Rajan which was challenged by the State in Revision before the Sessions Judge. The Sessions Judge appears to have determined the dispute concerning possession of the truck. The said adjudication further appears to have not resulted in the abuse of the process of the Court or called for interference by the High Court of Karnataka to secure ends of justice and thus could not be interfered within exercise of its inherent jurisdiction. The fact that the application filed before the High Court was really for a revision of the order of release of the truck as ordered by the Magistrate was not disputed by the counsel for the State. It was on those facts laid down that the second revision was barred u/s 397 (3) though lebelled u/s 482 of the Code of Criminal Procedure. This is how I understand the ratio of this decision.

The view which I have taken in regard to Raja Kumar Manchanda''s case, I find has been also taken by a Full Bench of Allahabad High Court in a case reported in 1990 Cr. L.J. 916 and by a Division Bench of the Punjab and Haryana High Court in a case reported in 1990 Cr. L.J. 1264.

Being a larger Bench I reconsider the question untrammeled by precedents laid down by learned Single Judges of this Court. Before Brother R.N Prasad, J. the legal position explained above was not explained by the petitioners nor except Rajan Kumar Manchanda''s case referred. In Chandra Kalia Devi v. State of Bihar 1979 B.L.J.R. 345, the attention of the learned Single Judge of this Court was not drawn to the ratio of the decisions of the Supreme Court in Naresh Shridhar Mirajkar and Others Vs. State of Maharashtra and Another, and Madhu Limaye Vs. The State of Maharashtra, V.C. Shukla Vs. State through C.B.I., and Municipal Corporation of Delhi Vs. Ram Kishan Rohtagi and Others, came later on. Similar is the position in 1980 B.L.J.R. 126 .

I clarify that it is a well settled legal position that if an application filed before us is in substance a revision petition not coming within the four corners of the purview of section 452 of the Code the same will be not maintainable despite being made under that section.

However, if a criminal revision has been dismissed by this Court in that event inherent powers of this Court cannot be exercised and the only remedy left would be to invoke the jurisdiction of the Supreme Court under Article 136 for quashing of the orders passed by the criminal court.

My conclusions, therefore, are as follows:

(i) In view of the fact that the petitions filed by the petitioners before this Court for the same reliefs was held not to be maintainable u/s 482 of the Code these petitions are held to be maintainable.

(ii) Under Articles 226 and 227 of the Constitution of India judicial orders passed by criminal courts can be assailed, the scope etc of which stands well settled.

(iii) Notwithstanding dismissal of a criminal revision by a Sessions Judge, an unsuccessful revision petitioner can move that Court under its inherent jurisdiction provided he makes out a proper case for exercise of inherent powers, the scope of which is almost well settled.

(iv) If a revision application has been dismissed by this Court the inherent powers cannot be exercised.

Before I part, I further clarify that this order of mine should not be interpreted that I have expressed my views in regard to the merits of the submissions of the petitioners and it will be for the Division Bench to consider as to whether the petitioners are entitled to any relief.

Sachchidanand Jha, J.

I entirely agree with my learned Brother N.P. Singh, J.