2013 (7) TMI 1005 - SC - Indian Laws

Appeal or revision the inherent power under Section 482 Cr.P.C. or Section 151 C.P.C. - Held that - In the instant case as noticed above, when the complainant s application under Section 319 of Cr.P.C. was rejected for the second time, he moved the High Court challenging the said order under Section 482 of Cr.P.C. on the ground that the Sessions Court had not correctly appreciated the facts of the case and the evidence brought on record. The complainant wanted the High Court to set aside the order after holding that the evidence brought on record is sufficient for coming to the conclusion that the appellants were also involved in the commission of the offence. In our considered opinion, the complainant ought to have challenged the order before the High Court in revision under Section 397 of Cr.P.C. and not by invoking inherent jurisdiction of the High Court under Section 482 of Cr.P.C. Maybe, in order to circumvent the provisions contained in sub-section (2) of Section 397 or Section 401, the complainant moved the High Court under Section 482 of Cr.P.C. In the event a criminal revision had been filed against the order of the Sessions Judge passed under Section 319 of Cr.P.C., the High Court before passing the order would have given notice and opportunity of hearing to the appellants. So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged. 2 The intention of the Legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis- -vis the law laid down by this Court it can safely be concluded that when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482 Cr.P.C. or Section 151 C.P.C. cannot and should not be resorted to. Whether the High Court exercising its revisional jurisdiction or inherent jurisdiction under Section 482 Cr.P.C., while considering the legality and propriety of the order passed under Section 319 of Cr.P.C. - Held that - Indisputably, a valuable right accrued to the appellants by reason of the order passed by the Sessions Court refusing to issue summons on the ground that no prima facie case has been made out on the basis of evidence brought on record. As discussed hereinabove, when the Sessions Court order has been challenged, then it was incumbent upon the revisional court to give notice and opportunity of hearing as contemplated under sub-section (2) of Section 401 of Cr.P.C. In our considered opinion, there is no reason why the same principle should not be applied in a case where such orders are challenged in the High Court under Section 482 of Cr.P.C.After giving our anxious consideration in the matter, we conclude by holding that the High Court has committed a grave error in passing the impugned order for the reasons given hereinbefore. We, therefore, allow this appeal, set aside the order of the High Court and remand the matter back to the High Court to consider the matter afresh after giving an opportunity of hearing to the present appellants.

Summary

Issues Involved:
1. Maintainability of petition under Section 482 Cr.P.C. challenging the order of the Sessions Court passed under Section 319 Cr.P.C.
2. Requirement of notice and opportunity of hearing to the appellants by the High Court before passing the impugned order.

Analysis:

1. Maintainability of Petition under Section 482 Cr.P.C.
The primary issue was whether the complainant could challenge the order of the Sessions Court under Section 319 Cr.P.C. through a petition under Section 482 Cr.P.C. The Supreme Court noted that Section 397 Cr.P.C. confers power of revision on the High Court or any Sessions Court to examine the correctness, legality, or propriety of any finding, sentence, or order. However, sub-section (2) of Section 397 restricts this power in relation to interlocutory orders. The Court clarified that an order refusing to issue summons under Section 319 Cr.P.C. is not an interlocutory order as it substantially affects the rights of the accused. Thus, the complainant should have filed a revision under Section 397 Cr.P.C. instead of invoking Section 482 Cr.P.C.

The Court reiterated that inherent power under Section 482 Cr.P.C. should be exercised sparingly and only when there is no specific remedy provided by the Code. In this case, since a revision was maintainable under Section 397 Cr.P.C., the inherent jurisdiction under Section 482 Cr.P.C. should not have been invoked.

2. Requirement of Notice and Opportunity of Hearing
The second issue was whether the High Court, while exercising its inherent jurisdiction under Section 482 Cr.P.C., was required to give notice and opportunity of hearing to the appellants. The Court emphasized that any order made under Section 401 Cr.P.C. (revision) should not prejudice the accused without giving them an opportunity to be heard, as mandated by sub-section (2) of Section 401 Cr.P.C. The Court extended this principle to cases under Section 482 Cr.P.C., holding that the High Court should have given notice and opportunity of hearing to the appellants before setting aside the Sessions Court's order.

The Court referred to several precedents, including the cases of *Madhu Limaye v. State of Maharashtra* and *Amar Nath v. State of Haryana*, which established that orders substantially affecting the rights of the accused are not interlocutory and thus revisable. Additionally, the Court cited the case of *Manharibhai Muljibhai Kakadia v. Shaileshbhai Mohanbhai Patel*, which held that accused persons are entitled to a hearing in revision petitions challenging orders dismissing complaints.

Conclusion:
The Supreme Court concluded that the High Court erred in entertaining the petition under Section 482 Cr.P.C. without providing notice and opportunity of hearing to the appellants. The order of the High Court was set aside, and the matter was remanded back to the High Court for fresh consideration after giving an opportunity of hearing to the appellants.