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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  842  OF 2016 [Arising out of S.L.P.(Crl.) No. 3314 of 2009]

Prabhu Chawla        …..Appellant   

Versus

State of Rajasthan & Anr.        …..Respondents

W I T H

CRIMINAL APPEAL NO.  844  OF 2016 [Arising out of S.L.P.(Crl.) No. 4744 of 2009]

AND

CRIMINAL APPEAL NOS.  845-846  OF 2016 [Arising out of S.L.P.(Crl.) Nos. 1554-1555 of 2011]

J U D G M E N T

SHIVA KIRTI SINGH, J.

1. Leave granted.

2. First we take up appeals of Prabhu Chawla and Jagdish Upasane and ors. as

these  two  criminal  appeals  seek  to  assail  a  common order  dated  02.04.2009

whereby the High Court of Judicature for Rajasthan at Jodhpur dismissed the

petitions preferred by the appellants under Section 482 of the Code of Criminal

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Procedure  (for  brevity  ‘Cr.P.C.’).  High  Court  held  the  petitions  to  be  not

maintainable in view of judgment of Rajasthan High Court in the case of Sanjay

Bhandari  v.  State  of  Rajasthan1 (impugned  in  the  other  connected  appeal)

holding  that  availability  of  remedy  under  Section  397  Cr.P.C.  would  make  a

petition under Section 482 Cr.P.C. not maintainable.

3. While considering all these matters at the SLP stage, on 05.07.2013, a Division

Bench found the impugned order of the High Court to be against the law stated in

Dhariwal  Tobacco  Products  Ltd.  and  Ors.  v.  State  of  Maharashtra  and

another2. In that case the Division Bench concurred with the proposition of law

that  availability  of  alternative  remedy  of  criminal  revision  under  Section  397

Cr.P.C. by itself cannot be a good ground to dismiss an application under Section

482 of Cr.P.C. But it noticed that a later Division Bench judgment of this Court in

the  case  of  Mohit  alias  Sonu  and  another  v.  State  of  Uttar  Pradesh  and

another3 apparently held to the contrary that when an order under assail is not

interlocutory in nature and is amenable to the revisional jurisdiction of the High

Court then there should be a bar in invoking the inherent jurisdiction of the High

Court. In view of such conflict, these cases were directed to be placed before the

Hon’ble Chief Justice for reference to a larger Bench and that is how the matters

are before this Bench for resolving the conflict.

4. The facts of these appeals need not detain us because in our considered opinion

the view taken by the Rajasthan High Court in the impugned order is contrary to

law and therefore matters will have to be remanded back to the High Court for

fresh consideration on merits within the scope of inherent powers available to the

1  2009 (1) CrLR (Raj.) 282

2  (2009) 2 SCC 370

3  (2013) 7 SCC 789

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High Court under Section 482 Cr.P.C. It would suffice to note that in both these

appeals, the miscellaneous petitions before the High Court arose out of an order

dated 30.11.2006 passed by learned Judicial Magistrate No. 3, Jodhpur in the

complaint no. 1669 of 2006, whereby it took cognizance against the appellants

under  Section  228A  of  the  Indian  Penal  Code  and  summoned  them  through

bailable warrants to face further proceedings in the case.  

5. Mr. P.K. Goswami learned senior advocate for the appellants supported the view

taken by this Court  in the case  Dhariwal Tobacco Products Ltd.  (supra).  He

pointed out that in paragraph 6 of this judgment Justice S. B. Sinha took note of

several earlier judgments of this Court including that in R.P. Kapur v. State of

Punjab4 and  Som Mittal v. Govt. of Karnataka5 for coming to the conclusion

that “only because a revision petition is maintainable, the same by itself, ………,

would not constitute a bar for entertaining an application under Section 482 of

the Code.” Mr. Goswami also placed strong reliance upon judgment of Krishna

Iyer, J. in a Division Bench in the case of Raj Kapoor and Ors v. State and Ors6.

Relying upon judgment of a Bench of three Judges in the case of Madhu Limaye

v.  The State of  Maharashtra7 and quoting therefrom, Krishna Iyer,  J.  in his

inimitable style made the law crystal clear in paragraph 10 which runs as follows:

“10.   The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict  this  contention because nothing of  the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific

4  AIR 1960 SC 866

5  (2008) 3 SCC 574

6   (1980) 1 SCC 43

7   (1977) 4 SCC 551

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provision is made: easy resort to inherent power is not right except under  compelling  circumstances.  Not  that  there  is  absence  of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye v. The State of Maharashtra  this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Section 482 is pervasive it should  not  subvert  legal  interdicts  written  into  the  same  Code, such, for instance, in Section 397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution

“would be to say that the bar provided in sub-section (2)  of Section 397 operates only in exercise of the revisional power of the High  Court,  meaning  thereby  that  the  High  Court  will  have  no power  of  revision in relation to  any interlocutory  order.  Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But  then,  if  the  order  assailed  is  purely  of  an  interlocutory character  which  could  be  corrected  in  exercise  of  the  revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its  inherent power.  But in case the impugned order  clearly  brings  about  a  situation which is  an abuse of  the process of  the Court  or  for  the purpose of  securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction”. In short, there is no total ban on the exercise of inherent power where  abuse  of  the  process  of  the  court  or  other  extraordinary situation  excites  the  court’s  jurisdiction.  The  limitation  is self-restraint,  nothing  more.  The  policy  of  the  law  is  clear  that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the court’s  process. Can we state that in this third category the inherent power can be exercised? In the words of Untwalia, J.: (SCC p. 556, para 10)

“The answer is obvious that the bar will not operate to prevent the abuse of the process of the Court and/or to secure the ends of justice.  The  label  of  the  petition  filed  by  an  aggrieved  party  is immaterial.  The  High  Court  can  examine  the  matter  in  an appropriate  case  under  its  inherent  powers.  The  present  case

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undoubtedly falls  for  exercise of  the power  of  the High Court  in accordance  with  Section 482 of  the  1973 Code,  even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.” I  am, therefore clear in my mind that the inherent power is not rebuffed in the case situation before us.  Counsel  on both sides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order  under  cessation  need  not  take  up  this  court’s  time.  Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified.”

6. In our considered view any attempt to explain the law further as regards the issue

relating  to  inherent  power  of  High  Court  under  Section  482  Cr.P.C.  is

unwarranted.  We  would  simply  reiterate  that  Section  482  begins  with  a

non-obstante clause to state: “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.”  A fortiori, there

can be no total ban on the exercise of such wholesome jurisdiction where, in the

words of Krishna Iyer, J. “abuse of the process of the Court or other extraordinary

situation excites the court’s jurisdiction. The limitation is self-restraint, nothing

more.” We venture to add a further reason in support.  Since Section 397 Cr.P.C.

is attracted against all orders other than interlocutory, a contrary view would limit

the  availability  of  inherent  powers  under  Section  482  Cr.P.C.  only  to  petty

interlocutory orders! A situation wholly unwarranted and undesirable.

7. As a sequel, we are constrained to hold that the Division Bench, particularly in

paragraph 28, in the case of Mohit alias Sonu and another (supra) in respect of

inherent power of the High Court in Section 482 of the Cr.P.C. does not state the

law correctly. We record our respectful disagreement.

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8. In our considered opinion the learned Single Judge of the High Court should have

followed  the  law  laid  down  by  this  Court  in  the  case  of  Dhariwal  Tobacco

Products  Ltd.  (supra)  and  other  earlier  cases  which  were  cited  but  wrongly

ignored them in preference to a judgment of that Court in the case of  Sanjay

Bhandari (supra) passed by another learned Single Judge on 05.02.2009 in S.B.

Criminal  Miscellaneous  Petition  No.  289  of  2006  which  is  impugned  in  the

connected Criminal Appeal arising out of Special Leave Petition No. 4744 of 2009.

As a result, both the appeals, one preferred by Prabhu Chawla and the other by

Jagdish  Upasane  &  Ors.  are  allowed.  The  impugned  common  order  dated

02.04.2009 passed by the High Court of Rajasthan is set aside and the matters

are  remitted  back  to  the  High  Court  for  fresh  hearing  of  the  petitions  under

Section 482 of the Cr.P.C. in the light of law explained above and for disposal in

accordance with law. Since the matters have remained pending for long, the High

Court is requested to hear and decide the matters expeditiously, preferably within

six months.

9. The impugned order in the third appeal, dated 05.02.2009 passed by the

High Court of Judicature for Rajasthan at Jodhpur has been relied upon

and  followed while passing the order dated 02.04.2009 impugned in the

other two appeals. Since that order has been set aside while allowing those

appeals hence the order impugned in this appeal also has to be set aside for

the same very reasons and for the view taken by us in respect of scope and

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ambit of Section 482 of the Cr.P.C. Accordingly this appeal is also allowed

and impugned order is set aside with the same directions as in the other

two appeals.

     …………………………………….J.       [J. CHELAMESWAR]

      ……………………………………..J.                  [SHIVA KIRTI SINGH]

      ……………………………………..J.                  [ABHAY MANOHAR SAPRE]

New Delhi. September 05, 2016.