S.N. Deedwania, J. - (1.) This application under section 482 Cr.P.C. is filed by petitioners Sri Sadhu Maharaj Mahant Sri Sunder Dasji and Shri Sadhu Maharaj Shri Hanuman Das ji against the order of learned Munsif and Judicial Magistrate, Jodhpur : District whereby he took cognizance against them under section 454 IPC on the complaint of non-petitioner No. 1 Sri Babulal.
(2.) It was argued by the learned counsel for the petitioners that the facts as disclosed in the complaint did not disclose any offence under section 454 TPC. A preliminary objection is taken on behalf of the non-petitioners that petition under section 482 Cr. P. C. is not maintainable because the order taking cognizance by a Magistrate is revisable and the petitioners unsuccessfully availed of that remedy. The inherent powers cannot be exercised in regard to matters specifically covered by the other provisions of the Code. On the other hand it is argued by the learned counsel for the petitioners that the provisions which bar the exercise of revisional jurisdiction would not in any way affect the exercise of inherent powers, and it cannot be said that application under section 482 Cr. P. C. is not maintainable in view of bar contained in section 399(3).
(3.) I have considered the rival contentions carefully. At this stage it would be useful to notice the various authorities cited at the bar on behalf of the parties. (1) R.P. Kanpur v. State of Punjab (AIR 1960 S.C. 866) : "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 S-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 can not be exercised in regard to matters specifically covered by the other provisions of the Code. (2) Palaniappa Gounder v. the State of Tamil Nadu & others (1977 Cr. L. J. 992): "(B) Criminal P. C. (1974), Sections 357 & 482 - Application by heirs of deceased for compensation under s. 482. Application can be treated as being under S. 357. If there is an express provision in a statute governing a particular subject matter there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the statute which are made advisedly to govern the particular subject-matter. Thus the application made by the heirs of the deceased for compensation could noil have been made under S. 482 since S. 357 expressly confers power on the court to pass an order for payment of compensation in the circumstances mentioned therein". (3) Amar Nath & Ors. v. State of Haryana & Ors (1977 Cr. L. J. 1891) : "Section 482 contained the inherent powers of the Court and does noil confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Sections 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under S. 397(2) and cannot be the subject of revision by the High Court, then to such a case the provisions of Section 482 would not apply.I It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provision on the subject-matter. Where there is an express provision, barring a particular remedy, the Court can not resort to the exercise of inherent powers". (4) Gopal Dass v. The State (1978 Cr. L. J. 961) : "In order to determine the question under consideration as to what is the scope of the inherent powers of the High Court becomes relevant The inherent powers of the High Court inherent in it because of its being at the apex of the judicial set up in a State. The inherent powers of the High Court, preserved by S. 482 of the Code, are to be exercised in making orders as may be necessary 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. S. 482 envisages that nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court exercised by it with the object of achieving the above said three results. It is for this reason that S. 482 does not prescribe the contours of the inherent powers of the High Court which are wide enough to be exercised in suitable case to afford relief to an aggrieved party. While exercising inherent powers it has to be borne in mind that this power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. (See R. P. Kapur v. State of Punjab, AIR 1960 SC 866). This principle of law had been reiterated succinctly by the Supreme Court recently in Palaniappa Gounder v. State of Tamil Nadu, AIR 1977 SC 1323. Therein examining the scope of S. 482 it was observed that a provision which saves the inherent powers of a Court cannot override any express provision in the statute which saves that power. Putting it in another form the Court observed that if there is an express provision in a statute governing a particular subject there is no scope for invoking or exercising the inherent powers of the Court because the Court ought to apply the provisions of the Statute which are made advisedly to govern the particular subject matter. This question having been settled authoritatively it is not open to the petitioners to invoke the inherent powers of this Court having failed to avail of their right of appeal or revision". (5) State of Orissa v. Ram Chander Agarwal (AIR 1979 SC 87) : "This decision instead of supporting the respondent clearly lays down, following Chopra's case (AIR 1955 SC 633) (Supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of S. 561 A of the Code can not be invoked for exercise of a power which is specifically prohibited by the Code. In the result we accept the contention put forward by Mr, Mukerjee for the State and hold that High Court has no power to revise its own order. The appeal is allowed, (6) Bhanwarlal v. Madanlal (1977 RLW page 174): "To sum up : The powers under section 482 of the Code of Criminal Procedure, 1973 can be exercised in relation to interlocutory orders, once the conditions mentioned in section 482 are fulfilled and exercise of such powers are not limited or controlled by the bar created by section 387 (2) of the Code, inasmuch as the two powers are separate and operate in their respective fields. It is needless to stress that the inherent powers under section 482 of the Code have to be exercised with due circumspection and in very rare cases. The inherent powers can be exercises only for any of the three purposes mentioned. They cannot be invoked in respect of any matter covered by the specific provisions of the Code. Nor can they be exercised to override an express prohibition of law prohibiting interference of if their exercise would be inconsistent with any of the specific provisions of the Code. The reference is answered accordingly." (7) Madhu Limaye v. State of Maharashtra (1978 Cr. L. J. 165) : "At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions : (1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party, (2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice, (3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code. In most of the cases decided during several decades the inherent power of the High Court has been invoked for quashing of a criminal proceeding on one ground or the other. Sometimes the revisional jurisdiction of the High Court has also been resorted to for the same kind of relief by challenging the order taking cognizance or issuing processes or framing charge on the grounds that the Court had no jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no change could be framed as no offence was made out on the allegations made or the evidence adduced in Court. To the background aforesaid we proceed to examine as to what is the correct position of law after the introduction of a provision like sub-section (2) of Section 397 in the 1973 Code. As pointed out in Amar Nath's case (AIR 1977 SC 2185) (supra) the purpose of putting a bar on the power of revision in relation to any interlock dory order passed in an appeal, inquiry, trial or other proceeding is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the proceedings. The legislature in its wisdom decided to check this delay by introducing sub-section (2) in Section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. 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 the 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. But then if the order assailed is purely of an interlocutory character which would be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise of 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 criminal proceeding initiated illegally, vexatiously or as being without jurisdiction." (8) In re Puritipati Jagga Reddy ( AIR 1979 A. P. 146) : "In Madhu Limaye's case (AIR 1978 SC 47 (supra) the Court had no occasion to express any opinion regarding the exercise of inherent power under S. 482 Cr. P. C. Vis-a-vis S. 397 (3). But it is patent from reading of the Cr. P. C. that what the Supreme Court has laid down in respect of Section 482 vis-a-vis Section 397 (2) would apply with equal force to the exercise of inherent power under section 482 vis-a-vis S. 397 (3)." (9) Bichitra Singh v. The State of Rajasthan & anr. (R. C. C. 1979 page 245) : "From the decision of Madhu Limaye's case it would be quite obvious and clear that the provisions which bar the exercise of revisional jurisdiction would not in any way affect the exercise of inherent powers provided the case falls within the situations contemplated by section 482 Cr. P. C.";