M.B.SHARMA, J. - (1.) THOUGH the learned Single Judge while being of the opinion that a larger Bench should be constituted to consider the powers of the High Court Under Section 482 of the Code of Criminal Procedure 1973 (for short, the Code) has not framed point which requires authoritative pronouncement by this Court, but the question to be examined by this Full Bench is in respect of ambit and scope of Section 482 of the Code. It will be proper to state at the very outset the point which arises for adjudication by this Court. We frame the following question: Whether any other provisions of the Code including Section 397(3) in any way limit or affect the inherent powers of this Court to make any order either to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice?
(2.) IT will be proper to read Section 482 of the Code as in our opinion, primarily it is the phraseology of this Section which will determine its ambit and scope. Section 482 of the Code reads as under: 482. Saving of inherent powers 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 abuse of the process of any court or otherwise to secure the ends of justice. The controversy with which we are dealing presently has arisen as a result of some observations, of the Apex Court in the case of Rajan Kumar Machanda v. State of Karnataka 1990 Cr. L.R. (SC) 602. In the aforesaid case the Apex Court was dealing with a case of release of a truck wherein after the revision petition had been dismissed a second revision petition was taken by the State to the High Court and it was observed by the Apex Court that in view of the provisions of Section 397(3) of the Code a second revision did not lie and the State in order to avoid that bar made a petition under Section 482 of the Code and the High Court in exercise of that power reversed the order of the Magistrate which was affirmed by the Sessions Judge while dismissing the first revision of the State. It will be seen that before the Apex Court on behalf of the State it was not disputed that before the High Court the move was in fact on an application for revision and the Apex Court after granting Special Leave proceeded to dispose of the criminal appeal on that statement made before it by the counsel for the State. The Apex Court said: It is not disputed by the counsel appearing for the State that the move before the High Court was really on application for revision of the Magistrate releasing the truck. That is exactly what is prohibited under Section 397(3) Cr.P.C. Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of Section 397(3) of the Code could be labelled as one under Section 482. We are satisfied that this is a case where the High Court had no jurisdiction to entertain the revision. It will be seen from the aforesaid extracted order of the Apex Court that what the Apex Court said is that in the garb of exercise of inherent power under Section 482 of the Code the revisional power cannot be exercised in view of the prohibition contained in Section 397(3) of the Code. The Apex Court in our opinion has not said that if the case falls within the four corners of Section 482 of the Code, this Court can still not exercise its inherent powers. The Apex Court has not said that the inherent power of this Court under Section 482 of the Code, on the grounds stated therein cannot be exercised or that Section 397(3) of the Code in any way limit that power. In our opinion, the aforesaid observations of the Apex Court have been read out of context by this Court while deciding the cases to which reference shall be made hereinafter. Placing reliance on the aforesaid case of Rajan Kumar (supra) this Court in the case on Mani Ram v. Mahaveer Prasad and Anr. 1991 Cr. L.R. (Raj) 145, has taken a view that in view of the provisions of Sub -section (3) of Section 397 of the Code in which the second revision is not maintainable and is barred, the power under Section 482 of the Code cannot be exercised. In the case of Bhanwar Khan v. State of Rajasthan 1991 RCC -456 placing reliance on the aforesaid two cases, i.e. the cases of Mani Ram (supra) and Rajan Kumar (supra) and observing that because the aforesaid two cases are later decisions, the learned Single Judge said that he has no option but to follow the aforesaid two decisions in the cases of Mani Ram and Rajan Kumar (supra) on the question of maintainability of a petition under Section 482 of the Code holding it to be second revision which is barred by Section 397(3) of the Code. The same learned Single Judge in the case of Giga Ram and Ors. v. State of Rajasthan and Ors. 1991 RCC 479 took a similar view. It will be seen that the aforesaid cases of Mani Ram, Bhanwar Khan and Giga Ram (supra) have been decided on the basis of the decision of the Apex Court in the case of Rajan Kumar (supra). We have already said any proposition of law that Section 397(3) of the Code in any way limits the power of this Court and further that this Court in the aforesaid case has unnecessarily read so in the case of Rajan Kumar (supra) decided by the Apex Court. Before the case of Rajan Kumar (supra) came to be decided, the Apex Court had the occasion to examine the same question in more than one cases and whereas the case of Rajan Kumar was decided by the two Judges, other judgment to which reference shall be made hereinafter were given by the larger Bench and in the case of Rajan Kumar neither the view taken in other cases has been dissented nor could have been dissented as the law of precedent is that so far as the judgments of the Apex Court are concerned, the judgment of more Judges has to be preferred to the judgment by Judges lesser in number despite the fact that the judgment by the Judges lesser in number is later judgment. Before coming into force of the Code, there was the Code of Criminal Procedure, 1898 (for short the old Code) and there was Section 561 -A in that old Code. In the case of Talab Haji Hussain v. Madhukar Purshottam Modkar and Anr. : 1958CriLJ701 , the Apex Court examined the ambit and scope of Section 561 A of the old Code and in para 5 said: It appears that doubts were expressed in some judicial decisions about the existence of such inherent power, in the High Courts prior to 1923. That is why legislature enacted this section to clarify the position that the provisions of the Code were not intended to limit or affect the inherent powers of the High Courts as mentioned in Section 561 A. It is obvious that this inherent powers can be exercised only for either of the three purposes specifically mentioned in the section. In the case of R.P. Kapur v. State of Punjab : 1960CriLJ1239 , Gajendragadkar J. as he then was, said that it is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. The Court then proceeded to indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. In the case of Amar Nath v. State of Haryana : 1977CriLJ1891 , Fazal Ali J. speaking for the court had taken a view that a harmonious construction of Sections 397 and 482 of the Code would lead to the irresistible conclusion that where a particular order is expressly barred under Section 397(2) and cannot be subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply, but in the later judgment in the case of Madhu Limaye v. State of Maharashtra : 1978CriLJ165 , the court considered the aforesaid case of Amarnath (supra) and said that the statement of law laid down therein was not accurate and needs some modulation and the court said: On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include Sub -section (2) of Section 397 also, 'shall be deemed to limit or affect the inherent powers of the High Court.' But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of 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 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. The Apex Court further said: 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 of the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. The court said that the law as stated in R.R Kapur's case (supra) still holds good, in accordance with Section 482 and was not affected by Section 397(2) of the Code.
(3.) AGAIN in the case of Raj Kapoor and Ors. v. State (Delhi Administration) and Ors. : 1980CriLJ202 , one of the questions formulated by the Apex Court was whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The court said: The opening words of Section 482 contradict this contention because nothing in 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 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. The learned Judge then said that in the case of Madhu Limaye's (supra) the court has exhaustively and correctly discussed and delineated the law beyond mistake. The court further said that 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). The court then said: In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extra -ordinary situation excites the court's jurisdiction. The limitation is self -restraint, nothing more..... ... ... ... ... 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 The matter was again considered by the Apex Court in the case of Municipal Corporation of Delhi. v. Ram Kishan Rohtagi and Ors. : 1983CriLJ159 , and the court said that Section 561 A of the old Code. The court further said that: It is true that Section 397(2) clearly bars the jurisdiction of the court in respect of interlocutory orders passed in appeal, enquiry or other proceedings. The matter is however no longer res Integra as the entire controversy has been set at rest by a decision of this Court in Madhu Limaye v. State of Maharashtra : 1978CriLJ165 where this court pointed out that Section 482 of the present code had a different parameter and was a provision independent of Section 397(2). This Court further held that while Section 397(2) applied to the exercise of revisional powers of the High Court, Section 482 regulated the inherent powers of the Court to pass orders necessary in order to prevent the abuse of the process of the court. In para 6 of the judgment, the court further said: It may be noticed that Section 482 of the present Code is the ad verbatim copy of Section 561A 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 order passed by subordinate court. 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 561A (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 and far between It will be clear from the aforesaid cases of the Apex Court that a view was taken that the power of High Court under Section 482 of the Code, the inherent power, is independent and the said power is not limited, no doubt while exercising the aforesaid power the court must act with self -restraint and the said power should only be exercised to prevent the abuse of process of the court or to give effect to any order under the Code and where the conscience of the Court is shaken and the court feels that the passing of the order is necessary to secure the ends of justice. We have already referred to the case of Rajan Kumar (supra) of the Apex Court and we have said that the case was decided on the statement made by the counsel for the State before the Apex Court that the High Court made the order in exercise of its revisional jurisdiction. That case was decided on its own facts and as said earlier no proposition of law has been laid down that inherent power of the High Court under Section 482 in any way is limited or affected by Section 397(2) of the Code. ;