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TMI Blog2013 (7) TMI 1005X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 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-à-vis the law laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccused persons named in the FIR armed with lathi, danda and hockey caused injuries to his uncle Kamta Prasad as well as to the complainant. The complainant was medically examined on 8th February, 2003 and a lacerated wound of 4 cm x 0.8 cm scalp deep on left side back of his skull was reported by the doctor. Kamta Prasad succumbed to his injuries alleged to have been caused by the accused. The accused were named in the FIR vide Case Crime No. 44/03 under Sections 147, 323, 504, 506, 304 of the Indian Penal Code (in short, I.P.C. ). The injured complainant as well as other witnesses were examined by the Investigating Officer (I.O.), but the I.O. submitted charge-sheet only against five accused leaving the names of two accused who are appellants before us. After committal of the case for trial, the trial court in S.T. No. 420 of 2007 examined the complainant as PW-1. In his examination- in-chief, the complainant specifically stated the role of the appellants herein in the occurrence. The complainant then moved an application under Section 319 of the Code of Criminal Procedure, 1973 (in short, Cr.P.C. ) for summoning the appellants herein as accused in the case. However, the trial c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused persons and it cannot be said that they have not participated in the crime. The learned lower court relying on the assertion made on the affidavit of some witnesses which cannot be read at the stage of summoning the accused persons under section 319 Cr.P.C., wrongly discussed the evidence of the witnesses on record in a cursory manner thereby rejecting the application of the applicant. therefore, they are liable to be summoned. xxx xxx xxx 6. In the light of the law as is aforesaid, the perusal of the impugned order revealed that lower court committed error thereby discussing the evidence and appreciating the contradictions and the affidavits on record, thereby finding that the evidence of the witnesses is not acceptable being irrelevant in the absence of any motive against the accused persons sought to be summoned in this case. Since the witnesses have stated that accused Mohit alias Sonu and Sarthak alias Babbal have taken part in inflicting injuries to Deepak and Kamta Prasad, therefore the case of accused Mohit and Sarthak cannot be set apart from other accused persons charge sheeted and against whom the trial is going on, thereby finding the improbability of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court as being illegal and wholly without jurisdiction, raised two important points for consideration. Learned counsel firstly contended that the order passed by the Sessions Court on the application under Section 319 Cr.P.C. refusing to issue summons to the non-accused person ought to have been challenged by the complainant before the High Court invoking its revisional jurisdiction under Section 397/401 Cr.P.C. According to the learned counsel, application of the complainant before the High Court under Section 482 of Cr.P.C. challenging the order passed under Section 319, Cr.P.C. was not maintainable. Secondly, Mr. Sharan submitted that, in any view of the matter, the High Court while exercising its inherent jurisdiction under Section 482 Cr.P.C. ought to have given notice and opportunity of hearing to the appellants before the order of the Sessions Judge was set aside. On the merits of the appeal, learned counsel submitted that the High Court while deciding the petition of the complainant under Section 482 Cr.P.C. on the first motion upset the reasoned order of the trial court and despite the fact that the entire evidence adduced till the decision on the application unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve given notice and opportunity of hearing to the appellants. 8. Since both the points raised by Mr. Amarendra Sharan, learned senior counsel appearing for the appellants, being interlinked, they are discussed here together. However, before discussing those points, we would like to refer some of the relevant provisions of the Code of Criminal Procedure. 9. Section 397 Cr.P.C. confers power of revision on the High Court or any Sessions Court, which reads as under:- 397. Calling for records to exercise powers of revision-- (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation-- All Magistrates, whether Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceeding of such inferior court. However, sub-section (2) of Section 397 puts a restriction on exercise of such power in relation to an interlocutory order passed by the criminal courts in any appeal, inquiry, trial or other proceeding. 12. Similarly, Section 401 empowers the High Court to call for any record in order to examine the correctness, legality or propriety of any order, finding or sentence passed by the inferior courts. However, sub- section (2) categorically provides that no order shall be made by the High Court in exercise of revisional jurisdiction affecting and prejudicing the right of the accused or other person, unless he has been given opportunity of hearing either personally or by pleader in his own defence. 13. Section 482 Cr.P.C. which deals with the inherent power of the High Court is extracted hereinbelow:- 482. Saving of inherent power 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out? In our opinion, a happy solution of this problem 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 of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no bar like Section 397(2)] was not a final order within the meaning of Section 205(1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our opinion if this strict test were to be applied in interpreting the words interlocutory order occurring in Section 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397(1). On such a strict interpretation, only those o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... known and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-section (2) of Section 397. In our opinion it must be taken to be an order of the type falling in the middle course. 16. In the case of Amar Nath Ors. v. State of Haryana Ors. (1977) 4 SCC 137, two provisions i.e Sections 397 and 482 have been considered and term interlocutory order has been fully discussed. In that case, an FIR was lodged mentioning a number of accused persons including the appellants as having participated in the occurrence which resulted in the death of the deceased. The police after holding investigations, submitted a charge- sheet against the other accused persons except the appellants against whom the police opined that no case at all was made out as no weapon was recovered nor was there any clear evidence about the participation of the appellants. After submission of the final report, the Judicial Magistrate accepted the report and set the appellants at liberty. The complainant thereafter filed a revisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court cannot resort to the exercise of inherent powers. 17. So far as the question as to whether the order of the Judicial Magistrate was an interlocutory order is concerned, Their Lordships after discussing the legislative background of the provisions held:- 6 .The main question which falls for determination in this appeal is as to what is the connotation of the term interlocutory order as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term interlocutory order is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster s New World Dictionary interlocutory has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be tho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate had not passed this order, no proceedings were started against the appellants, nor were any such proceedings pending against them. It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which the appellants possessed and which was being denied to them by the impugned order. It cannot, therefore, be said that the appellants were not at all prejudiced, or that any right of their s was not involved by the impugned order. It is difficult to hold that the impugned order summoning the appellants straightaway was merely an interlocutory order which could not be revised by the High Court under sub-sections (1) and (2) of Section 397 of the 1973 Code. The order of the Judicial Magistrate summoning the appellants in the circumstances of the present case, particularly having regard to what had preceded, was undoubtedly a matter of moment, and a valuable right of the appellants had been taken away by the Magistrate s passing an order prima facie in a mechanical fashion without applying his mind. We are, therefore, satisfied that the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 6. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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. 22. 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. 23. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 151 C.P.C. cannot and should not be resorted to. 28. The second question that needs consideration is as 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. Code is required to give notice and opportunity of hearing to the person in whose favour some right accrued by virtue of order passed by the trial court. In other words, whether it would be justified for the High Court to entertain a petition under Section 482 of Cr.P.C. and pass order to the prejudice of the accused or other person (the appellants herein) without giving notice and opportunity of hearing to them. 29. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the question accordingly. The judgments of the High Courts to the contrary are overruled. 31. The same question came up for consideration before different High Courts some of which we would like to refer hereinbelow. In the case of Sayeed Bhagat and Others v. State of Andhra Pradesh 1999 Crl.L.J.4040, a Bench of the Patna High Court noticed the facts of the case where an application was filed in a criminal case under Section 319 of Cr.P.C. to summon the remaining accused persons who were named by the witnesses. The Magistrate refused the said prayer mainly for want of sufficient evidence. The said order was challenged in revision by the complainant. The revisional court set aside the order of the Magistrate without hearing the petitioners against whom prayer was made for issuance of summons. When the matter came up before the High Court, the Bench held as under:- 8. In the instant case also though the jurisdiction of the Court to summon a person under Section 319 of the Cr.P.C. cannot be questioned, the revisional Court, in my view should have heard the petitioners before passing the impugned order because the same has prejudiced them. 32. In a similar case in Satish Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X
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