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TMI Blog1991 (1) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... is in relation to a proceeding in the High Court or any subordinate Court and that proceeding too must have a judicial character and not of an executive or administrative one Thus, Janarthanam, J., expressed his agreement with the view expressed by a learned Judge of this Court in Rajan R. v. State of Tamil Nadu (1987 L.W. Crl. 43) and his disagreement with the statement of law in Ramakrishnan v. The State of Tamil Nadu (1983 L.W. Crl. 181) by another learned single judge of this Court. 2. Chapter 32 of the Code contains provisions with respect to execution, suspension, remission and commutation of sentences and in Section 432, it states, Power to suspend or remit sentences:(i) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Government may require the presiding Judge of the Court before or by which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or to prevent the abuse of process of any Court or otherwise to secure the ends of justice is intervened by the disjunctive 'or'. A closer look, however, shows that while the first 'to give effect to any order under this Code' is followed by a comma or closed by a comma, the latter 'to prevent the abuse of process of any Court or otherwise to secure the ends of justice are left without a comma to disjoin them. Thus viewed, the High Court's inherent power is, confined, (1) To make such orders as may be necessary to give effect to any order under the Code. (2) To make such orders as may be necessary to prevent the abuse of process of any Court or otherwise to secure the ends of justice. 5. The first part or the first clause, understood as above, conveys that the inherent power of the High Court can come into play when it is necessary to give effect to any order under the Code, if there is no express bar and if there is no other provision of the Act to ensure the implementation of the order. The second part or the clause will be available if in any proceeding of a Court, whether the High Court or a Court subordinate to it, any abuse of process is found or othe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent power definite salutary safeguards have been laid down as to its exercise. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any Court would be abused or that the ends of justice would not be secured that the High Court can and must exercise its inherent power under Section 561-A. There can thus be no dispute about the scope and nature of the inherent power of the High Courts and the extent of its exercise. 7. In Khushi Ram v. Hashim (A.I.R. 1959 S.C. 542), the Supreme Court considered a case where the matter as to the quashing of a committal proceedings was asked to which was directly covered by Section 215 of the Code of Criminal Procedure, 1898 and noticed: The judgment delivered by the learned Judge in exercising his jurisdiction under Section 561-A shows that Section 215 had been cited before him by the complainant and it was urged before him that it was not competent to the learned Judge to entertain the application for quashing the commitment proceedings under Section 561-A of the Code. The argument was that under the Code of Criminal Procedure the commitment once made under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 173 of the Code on July 25, 1959. The High Court upon that held that no case had been made out for quashing the proceedings under Section 561-A. The Supreme Court dismissed the appeal, but stated about the scope of Section 561-A in the following words: Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under Section 561-A of the Code. The said section saves the inherent power 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. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the magistrate before whom the police report has been filed under Section 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the Appellant that his request for the quashing of the proceedings is not at the present stage covered by any specific provision of the Code. It is well established that the inherent jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would no, be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. 9. The cases above however generally dealt with the scope of Section 561-A of the Code and suggested the limitations under which the High Court should exercise, its inherent power. These cases either related to proceedings in Court or brought before the Court as a police report, thus at the threshold deciding whether a criminal proceeding already initiated in Court or likely to be initiated should be quashed or not. In State of West Bengal v. S.N. Basak (A.I.R. 1963 S.C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expressly conferred by the Code of Criminal Procedure and that no inherent powers had survived the passing of that Act. The Supreme Court recognized that the judiciary should not exercise the functions of the police and confine to its own functions when a charge is preferred before it and not until then. In this judgment, the Supreme Court thus recognized a rule that the Court's inherent powers are limited to the proceedings in Court and do not go beyond it. The Supreme Court reiterated this law in several other cases including Jehan Singh v. Delhi Administration (A.I.R. 1974 S.C. 1146) ((1974) 3 S.C.R. 794). 11. The cases of Sharda Prasad v. State of Bihar (A.I.R. 1977 S.C. 1754) and Bindeshwari Prasad v. Kali Singh (A.I.R. 1977 S.C. 2432) are not exactly on point, but they do say that the power of the High Court under Section 561-A of the Code should be sparingly used and that there is absolutely no provision in the Code of Criminal Procedure of 1898 empowering a Magistrate to review or recall an order passed by him. The Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 561-A, which however confers these powers on the High Court and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent adjudication between the police and the Magistrate. 14. Similarly, in the cases of West Bengal v. Sampat Lal (A.I.R. 1985 S.C. 195) it is stated: The next aspect to be considered is whether it is open to the Court to interfere with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kumar Tiwari (A.I.R. 1970 S.C. 786) (Supra) have clearly laid down that no investigation can be permitted and have made the observations which I have earlier quoted and which were relied on by Mr. Sen. As I have earlier observed this proposition is not only based on sound logic but is also based on fundamental principles of justice, as a person against whom no offence is disclosed, cannot be put to any harassment by the process of investigation which is likely to put his personal liberty and also property which are considered sacred and sacrosanct into peril and jeopardy. 17. The seven learned judges of the Bench of the Allahabad High Court in Ram Lal Yadav v. State of U.P. (1989 Cri. L.J. 1013) also said that the police investigation cannot be interfered with by the High Court in the exercise of its inherent powers under Section 482 of the Code and observed on the question whether there would be any remedy when the first information report did not disclose the commission of any offence stated thus: Thus if the first information report does not disclose the commission often offence, the investigation on the basis of such a report is liable to be quashed under Article 226 of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one re-viewing the earlier order on a reconsideration of the same materials. The High Court has grievously erred in doing so. Even on merits, we do not find any compelling reasons to quash the proceedings at that stage. The Supreme Court came to the above conclusion in these circumstances. In a case instituted on a private complaint by the Appellant for offences under Sections 452 and 323, I.P.C., the Judicial Magistrate, First Class, Patna, in the exercise of power under Section 192(2) Code of Criminal Procedure, transferred the case for enquiry under Section 202 of the Code. The Court of the Second Class Magistrate after examining witnesses, by order dated 22.3.1985 issued process to the two accused, the order of the Magistrate issuing process was challenged by the Respondents under Section 482 before the High Court. The main ground urged before the High Court was that the First Class Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the ends of justice must be in relation to a proceeding in the High Court or any subordinate criminal Court and that proceeding too must have judicial character and not of an executive or administrative one. The Patna High Court in Kula Chandra Dutt v. Emperor (A.I.R. 1946 Pat 191) clearly said that Section 561-A (old Code) came into operation only when the impugned order was passed by a 'Court' and that if the order moved against in the High Court is one passed by an executive officer at the Crown in his administrative capacity, Section 561-A was not attracted. Coming to the question of parole, however, and the exercise of the power under Section 432(5), Code of Criminal Procedure, in K. Sudesthamma v. State of A.P. (1985 Cri.L.J. 1890), a learned Judge of the Andhra Pradesh High Court considered whether Section 482, Code of Criminal Procedure. enabled the High Court to grant any direction and held: Here in the case before us, the parole is an administrative order and not even a quasi-judicial order and, therefore, Section 482 of the Code of Criminal Procedure is not applicable to the facts of this case. Thus, even though the order passed by the Government in granting p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be invoked to quash a First Information Report. 23. On the question of parole also, it appears that the view of this Court has not been consistent. While one of the learned single Judges of this Court in Ramakrishnan v. The State of Tamil Nadu (1983 L.W. Crl. 181) and another in Masilamani v. State of Tamil Nadu (1987 L.W. Crl. 26) took the view that in extraordinary situations, the Court should relegate technical and procedural matters to the background and take human factors into consideration and give relief to the parties within the bounds of law and thus exercise power under Section 482 of the Code of Criminal Procedure, another learned single Judge in Rajan R. v. State of Tamil Nadu (1987 L.W. Crl. 43) took the view that the order of refusal to grant leave is final and that the Court should not sit in appeal over the decision of the Government. In his words, The Learned Counsel for the Petitioner draws my attention to the judgment of S. Natarajan, J. in Ramakrishnan v. The State of Tamil Nadu (1983 L.W. (Crl.) 181) where it has been observed that the court may overrule the objection raised by the Government for grant of relief to the convict and direct that there will be sus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equest of the Petitioner will have to be negatived and accordingly this petition is dismissed. 24. It will thus be a pertinent question to us to consider whether the words otherwise to secure the ends of justice in Section 482 of the Code as pointed out in Ramakrishnan's case (1983 L.W. (Crl.) 7 181) or in Vishwa Nath Verma's case (1986 Crl. L.J. 1800) have the content to extend the inherent jurisdiction of the Court to situations as in the case of a First Information Report taken up for investigation by the Police and jurisdiction for grant of parole exercisable under Section 432 of the Code would empower this Court to interfere or not. It has to be first understood that the inherent power of the Court under Section 482 of the Code of Criminal Procedure is a saving and not a grant of power by a statute. Such inherent power this Court possessed and possesses as a Court of Record and a Court of unlimited jurisdiction as noticed in the recitals of the Letters Patent of this Court, which states, And that the High Court of Judicature so to be established should have and exercise all such Civil, Criminal, Admiralty and Vice- Admiralty, Testamentary, Intestate and Matrimonial Jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art VI Chapter I states, The Governor of a State shall have the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. 27. In K.M. Nanavati v. State of Bombay (A.I.R. 1961 S.C. 112), a Constitution Bench of the Supreme Court had the occasion to consider the Ambit of Article 161 of the Constitution and Sections 401 and 426 of the Code of Criminal Procedure, 1898. The matter had gone before the Supreme Court in connection with a case in which the Petitioner, who was Second in Command of I.N.S. Mysore had been arrested in connection with a charge of murder under Section 302 of the Indian Penal Code, produced before the Chief Presidency Magistrate, Greater Bombay, remanded to police custody and under the orders of the Magistrate, detained in the Naval Jail and Detention Headquarters in Bombay. In due course, he was placed on trial before the Sessions Judge, Greater Bombay. The Judge made a reference to the High Court under Section 307 of the Code of Criminal Procedure disagreeing with the verdict of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sentences less rigorous in nature. In addition the Governor General had been delegated the power to exercise the prerogative power vesting in His Majesty. Sub-section (5) of Section 401 also provides that nothing contained in it shall be deemed to interfere with the right of His Majesty, or the Governor General when such right is delegated to him, to grant pardons, reprieves, respites or remissions of punishment. This position continued till the Constitution came into force. Two provisions were introduced in the Constitution to cover the former royal prerogative relating to pardon, and they are Articles 72 and 161. Article 72 deals with the power of the President to grant pardons, reprieves, respites or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence. Article 161 gives similar power to the Governor of a State with respect to offences against any law relating to a matter to which the executive power of the State extends. Sections 401 and 402 of the Code have continued with necessary modifications to bring them into line with Articles 72 and 161. It will be seen, however, that Articles 72 and 161 not only deal with pardons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he language of Section 295(2) of the Government of India Act, we find no words like Nothing in this Constitution or Notwithstanding anything contained in this Constitution in them. Such words have been used in many articles of the Constitution: (See for example, Article 262(2) which provides specifically for taking away by Parliament by law the power of this Court in disputes relating to water and begins with words Notwithstanding anything in this Constitution ). The absence thereof of any such qualifying words in Article 161 makes the power of this Court under Article 142 of the same vide amplitude within its sphere as the power conferred on the Governor under Article 161. Therefore, if there is any field where the two powers can be exercised simultaneously the principle of harmonious construction has to be resorted to in order that there may not be any conflict between them. On that principle the power under Article 142 which operates in a very small part of the field in which the power under Article 161 operates, namely, the suspension and execution of sentence during the period when any matter is sub judice in this Court, must be held not to be included in the wider power confe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ew man: (see Halsbury's Laws of England, Vol. VII Third Edition p. 244 para 529). But the same effect does not follow on a mere remission which stands on a different footing altogether. In the first place, an order of remission does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a court, he need not do so with respect to that part of the sentence which has been ordered to be remitted. An order of remission thus does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and frees the convicted person from his liability to undergo the full term of imprisonment inflicted by the court, though the order of conviction and sentence passed by the court still stands as it was. The power to grant remission is executive power and cannot have the effect which the order of an appellate or revisional court would have of reducing, the sentence passed by the trial court and substituting in its place the reduced sentence adjudged by the appellate or revisional court. This distinction is w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urely with the Executive Government. Thus it is clear that the order passed by the State Government under Section 401 of the Code of Criminal Procedure in this case is essentially and basically an executive order and the same has to operate in a completely different field and thereafter said, From the above discussion, I therefore, conclude that an order passed under Articles 72 and 161 of the Constitution of India and under Section 401 of the Code of Criminal Procedure, is justiciable on any of the following grounds: 1. That the authority, which purported to have exercised the power, had no jurisdiction to exercise the same. 2. That the impugned order goes beyond the extent of the power conferred by the provisions of law under which it is purported to be exercised. 3. That the order has been obtained on the ground of fraud or that the same having been passed taking into account the extraneous considerations not germane to the exercise of the power conferred or in other words, that the order is a result of mala fide exercise of power. It may, however, be observed that the exercise of power in this regard cannot be questioned on the ground of adequacy or inadequacy of the reasons wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidity of the threatened denial of life or the threatened of continued denial of personal liberty. The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the State. In England, the power is regarded as the royal prerogative of pardon exercised by the Sovereign, generally through the Home Secretary. It is a power which is capable of exercise on a variety of grounds, for reasons of State as well as the desire to safeguard against judicial error. It is an act of grace issuing from the Sovereign. In the United States, however, after the founding of the Republic, a pardon by the President has been regarded not as a private act of grace but as a part of the constitutional scheme. In an opinion, remarkable for its erudition and clarity, Mr. Justice Holmes, speaking for the Court in W.L. Biddle v. Vuco Perovich (1926) 71 Law Ed 1161 enunciated this view, and it has since been affirmed in other decisions. The power to pardon is a part of the constitutional scheme, and we have no doubt, in our mind, that it should be so treated also in the Indian Republic. It has been reposed by the people through the Constitution in the Head of the State, and enjoy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no manner of doubt that the provisions in Chapter XXXII of the Code of Criminal Procedure, 1973, which includes Section 432 are like powers under Articles 72 and 161 of the Constitution exclusively for the Executive and operate in a field which does not either affect or embrace the judicial functions of the Courts. Howsoever extended meaning the Court may intend to give to the words in Section 482 of the Code, one must always remember that any order to secure the ends of justice or to give effect to the order under the Code does not and cannot mean a supervisory power to the court over the executive functions of the State Government or the Governor of the State or the Union Government or the President of India. Although included as a provision in the Code of Criminal Procedure, the executive power of the State to suspend or remit sentence and the power of the Governor and the President to the said extent to accord pardon, etc. are executive powers which are beyond reach of a regular Court of law. Section 483 of the Code of Criminal Procedure and Article 227 of the Constitution of India together recognize the High Court's supervisory power over the Courts and Tribunals includin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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