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.
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
V
State of Rajasthan & Anr
Citation: 2016 SCCONLINESC905
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 CriminalPage 2
2
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 789Page 3
3
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 551Page 4
4
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
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.
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
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.
Print Page
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.
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
V
State of Rajasthan & Anr
Citation: 2016 SCCONLINESC905
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 CriminalPage 2
2
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 789Page 3
3
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 551Page 4
4
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
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.
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
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.
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