SIMRIKHIA Vs. DOLLEY MUKHERJEE AND CHHABI MUKHERJEE
LAWS(SC)-1990-3-45
SUPREME COURT OF INDIA (FROM: PATNA)
Decided on March 02,1990

SIMRIKHIA Appellant
VERSUS
DOLLEY MUKHERJEE AND CHHABI MUKHERJEE Respondents





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JUDGEMENT

- (1.)Special leave granted.
The legality of the order of the High Court dated 19-8-1989 passed on an application made under Section 482, Cr.P.C. is challenged in this appeal. In a case instituted on a private complaint by the appellant for offences under Sections 452 and 323, I.P.C., the Judicial Magistate First Class, Patna, in exercise of power under Section 192(2), Cr.P.C. transferred the case for enquiry under Section 202 of the Cade. The Court of the Second Class Magistrate, after examining witnesses, by order dated 22-3-1985 issued process to the two accused the respondents herein. 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 Magistrate had transferred the case without taking cognizance of the offence and the subsequent proceedings were, therefore, illegal. the High Court, by its order dated 20-8-88, dismissed the petition. It was found that there was no such illegality. The respondents again made Crl. Misc. Petn. 2314/ 89 under Section 482, Cr.P.C. before the High Court alleging, inter alia, that the record of the proceedings on close scrutiny would indicate that the case had not been taken cognizance of before the transfer. The learned single Judge accepted the case of the respondents and quashed the proceedings by the impugned order.

(2.)The learned counsel for the appellant contended before us that the second application under Section 482 Cr.P.C. was not entertainable, the exercise of power under Section 482, on a second application by the same party on the same ground virtually amounts to the review of the earlier order and is contrary to the spirit of Section 362 of the Cri .P.C. and the High Court was, therefore, clearly in error in having quashed the proceedings by adopting that course. We find considerable force in the contention of the learned counsel. The inherent power under, Section 482 is intended to prevent the abuse of the process of the court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the ease, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362.
(3.)In the present case, there had been a definite finding that the complaint was taken cognisance of by the Magistrate before he transferred the proceedings under Section 192(2) for enquiry under Section 202, Cr. P.C. This finding has been arrived at after perusal of the record of the proceedings before the Magistrate and on a consideration of the report of the concerned Magistrate. A reappraisal of the facts on record to determine whether such cognizance had been taken of in a subsequent proceeding is not, therefore, warranted. The only ground on which relief was claimed is the alleged irregularity in the transfer of the proceedings. It was not open to the parties to reagitate the question by a fresh application nor was the court empowered under Section 482 to reconsider the matter.
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