HARSH KAPOOR Vs. KOMAL KAPOOR
HIGH COURT OF UTTARAKHAND
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Alok Singh, J. -
(1.) PETITIONERS have invoked inherent jurisdiction of this Court, under Section 482 of Code of Criminal Procedure, assailing the summoning order dated 03.08.2013, passed by Judicial Magistrate, Ramnagar (Nainital) whereby petitioner Nos. 1, 2, 3 & 4 were summoned under Section 312 & 498 -A I.P.C. and under Sections 3/5 of Dowry Prohibition Act while petitioner No. 5 was summoned under Section 498 -A I.P.C. and under Section 3/5 Dowry Prohibition Act, passed under Section 204 of the Criminal Procedure Code.
(2.) HON 'ble Apex Court in a recent judgment, in the case of Mohit alias Sonu and another vs. State of Uttar Pradesh and another : AIR 2013 SC, 2248 in paragraph Nos. 23, 24, 25, 26 & 27 have held as under:
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 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.
24. Courts possess inherent power in other statute also like the Code of Civil Procedure (C.P.C.) Section 151 whereof deals with such power. Section 151 of C.P.C. reads: -
"Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court."
25. This Court in the case of Padam Sen & Anr. v. State of Uttar Pradesh, : AIR 1961 SC 218 regarding inherent power of the Court under Section 151 C.P.C. observed: -
"The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore, it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict what has been expressly provided in the Code or against the intentions of the Legislation. It is also well recognised that the inherent power is not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code."
26. In a Constitution Bench decision rendered in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, : AIR 1962 SC 527, this Court held that: -
"The inherent jurisdiction of the Court to make orders ex debito justitiae is undoubtedly affirmed by S. 151 of the Code but inherent jurisdiction cannot be exercised so as to nullify the provision of the Code of Civil Procedure. Where the Code of Civil Procedure deals expressly with a particular matter, the provision should normally be regarded as exhaustive."
27. The intention of the Legislature enacting the Code of Criminal Procedure and the Code of Civil Procedure vis -a -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.
In view of the dictum of the Hon'ble Apex Court, in the case of Mohit (Supra) inherent power of the Court under Section 482 of the Code of Criminal Procedure should not be permitted to be invoked when there is specific remedy provided under the Code of Criminal Procedure for redressal of the grievance.
(3.) MR . Harshit Pant, learned counsel for the petitioners, while placing reliance on the judgment of the coordinate Benches of this Court in the case of Garhwal Mandal Vikas Nigam Ltd. vs. Mata Garg & Co., reported in : 2011 (3), Uttaranchal Decisions, page 1666 and in the case of Manoj Kumar Miglani vs. State of Uttarakhand, Criminal Misc. Application No. 193 of 2007, decided on 06.10.2012 vehemently argued that criminal revision is not maintainable against the summoning order passed by learned Magistrate, since order issuing summon is a interlocutory order. Therefore, petitioners have invoked inherent jurisdiction of this Court under Section 482 of the Code.;
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