http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6

PETITIONER:

KRISHNAN & ANR.

Vs.

RESPONDENT:

KRISHNAVENI & ANR.

DATE OF JUDGMENT: 24/01/1997

BENCH:

K. RAMASWAMY, S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:

J U D G M E N T

K. Ramaswamy, J.

Leave granted.

This appeal by special leave arises form the judgment

dated 26th March, 1992, passed by the Madras High Court in

Crl. O.P. No. 10678 of 1991 The Facts relevant for out

purpose are that in a litigation between Krishnaveni, the

first respondent and Tulasiammal , The Second wife of her

husband, Chinnikrishnan, the first appellant, Krishnan had

offered his services and promised to help the first

respondent in conducting the said litigation and asked her

to execute a power of attorney for that purpose in his

favour, It is the case of the first respondent that on

faith of the promise of the first appellant, she went to

sub-Registrar's office at Madurai where the first appellant

made her sign on some stamp papers in the presence of the

sub Registrar. Later it transpired the first appellant had

got her signature on an agreement to sell her land (which

indicated that she had received Rs. 20,000/- and not the

power of attorney as she was given to under stand. According

to the first respondent, when the appellants came to her

house on April 15 1989 and demanded money purported to have

been spent by the first appellant in the litigation and

wanted her to execute the sale deed in her favour, she made

enquiries and came to know that the first appellant had

played fraud upon her with dishonest intention to cheat her

and obtained her signatures on the purported agreement to

sell dated September 13, 1986, consequently, She lodged a

complaint with the police on April 24, 1989 and the crime

came to registered as Crime No. 31 of 1989 under Section 420

and 406 IPC, The Sub-Inspector after investigation submitted

a report stating that the case was essentially of civil

nature and no criminal case was made out. There upon the

first respondent feeling aggrieved, brought the matter to

the notice of superintendent of Police, Madurai and

requested him to assign the same to another officer to make

an honest investigation. Accordingly, the Inspector of

Police, Crime Branch was entrusted with the investigation

after through investigation, the inspector filed the charge-

sheet under Section 173 Crl P.C. on December 4, 1989 which

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6

disclosed commission of the offences under sections 420 and

406 IPC. On receipt thereof, the Judicial magistrate No.1,

Madurai had taken cognizance of the offences and issued

summons on February 22, 1990. Thereupon the appellants

filed an application to discharge them. The Magistrate on

the said application discharge them/. The magistrate on the

said application discharged the accused in Criminal M.P. NO.

262 OF 1990 by order dated 22nd February, 1990 The

respondents feeling aggrieved thereby, Filed Revision

Applications before the Sessions Judge and the matter was

transferred to the First Additional Sessions Judge who by

order dated March 26, 1991 dismissed the revision petition .

On a further Revision Filed by the first respondent in the

High Court, by Order dated March 26,1992 it allowed the

Revision by the impugned order and set aside the order of

the Magistrate and directed him to consider the facts on

merits at the trail, Thus this appeal buy special leave.

When the matter had come up for hearing upon

consideration of the decision cited by the learned counsel

for the appellants, in particular Dharampal & ORS. V/S

Ramshri (Smt.) & Ors. [(1993)] 1 SCC 435 and Rajan Kumar

Manchanda V/s State of Kerala {(1990 supp. SCC 132) the

matter was referred to a three-Judge Bench. Thus the

appeal has come up before us.

Shri Krishnamurthy, learned counsel for the appellants,

contended that the State as well as the respondents having

availed of the remedy of revision under Section 397 of the

code of Criminal Procedure, 1973 {for short, the "code"} the

high court was devoid of power sand jurisdiction to

entertain the second revision due to prohibition buy

section (3) of Section 397 of the Code, therefore the

impugned order is one without jurisdiction and vitiated by

manifest error of law warranting interference, In support

of his contention, the learned counsel placed strong

reliance on the abovesaid two decisions of this court. The

further contended that when there is prohibition under

section 3297 (3) of the code, the exercise of the power

being in violating thereof, is non est. he further placed

reliance on the decision of his court in Simrikhia V/S.

Dolley Mukherjee & Chhabi Mukherjee & Anr, [(1990) 2 SCC 437

] and Deepti @ Aarati Rai V/s Akhil Rai & Ors [JT 1995 (7)

SC 175]. The question therefore, is; whether the high court

has power to entertain a Revision under section 397 (10 in

respect of which the sessions judge has already exercised

revisional power and whether under the circumstances of the

present case, it could be considered to be one under section

482 of the Code?

Chapter XXX of the code relating to reference and

revisional powers of the High courts, consists of the

Section 395 to 405 Under the codes, the revisional power

of the High Court has concurrently been given by operation

of sub-section (1) of section 397 to Sessions judge, to call

for the records of any proceeding and to exercise powers of

revision . The power is given to examine the record of any

proceedings before nay inferior Criminal Court situated

within its or his local jurisdiction for the purpose of

satisfying itself or himself as to the correctness,

legality or propriety of any finding, sentence , or order,

recorded or passed, and as to the regularity of any

proceeding of such inferior Court. Sub-Section (3) thereof

provided that if an application under the said section has

been made by any person either to the high court or to the

Sessions judge no further application by the same Person

shall be entertained by the other of them.. This was brought

by way of amendment to section 435 of the predecessor Code

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6

i.e., Act V of 1898 .

Section 401 of the code gives to every High Court power

of revision Sub-Section (1) of the said section provides

that in the case of any proceeding the record of which has

been called for by itself or which otherwise comes to its

knowledges the High Court may in its discretion, exercise

any of the power conferred on a court of Appeal by Sections

386 389 and 391 and on a court of Sessions by section 307

Apart form the express power sunder section 397 (1) the High

Court has been invested with Suo motu power under Section

401 to exercise revisional power. In addition, section 482

saves inherent powers of the High Court Postulating that

"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 precess of any court or otherwise to

secure the ends of justice" Section 483 enjoins upon every

high Court to so exercise its continuous superintendence

over the courts of judicial magistrates subordinate to it

as to ensure that there is an expeditious and proper

disposal of cased by such magistrates. It is, therefore,

clear that the power of the High Court of continuous

supervisory jurisdiction is of paramount impotance to

examine correctness, legality or propriety of any finding,

sentence or order recorded or passed as also regularity of

the proceedings of all inferior criminal courts.

It is seen that exercises of the revisional power by

the high court under Section 397 read with Section 401 is to

call for the records of any inferior Criminal Court and to

examine the correctness, legality or propriety of any

finding, sentence or order recorded or passed, and as to the

regularity of any proceedings of such inferior Court and to

pass appropriate orders. The Court of Sessions and the

Magistrates are inferior criminal courts to the High Court

and Courts of judicial Magistrate are inferior criminal

courts to the sessions judge. ordinarily, in the matter of

exercise of power of revision by any High Court, Section 397

And section 401 are required to be read together. section

397 gives powers to the High Court to call for the records

as also suo motu power under section 401 to exercise the

revisional power on the grounds mentioned therein, i.e. to

examine the Correctness, legality or propriety of any

finding sentence or order, recorded or passed and as to the

regularity of any proceedings of such inferior court, and

to dispose of the revision in the manner indicated under

section 401 of the Code. The revisional. power of the high

Court merely conserves the power of the high Court to see

that justice is done is accordance with the recognised rules

of criminal jurisprudence and that its subordinates courts

do not exceed the jurisdiction or abuse the power vested in

them under the code or to prevent abuse of the process of

the inferior criminal courts or to prevent miscarriage of

justice.

The object of Section 483 and the purpose behind

conferring the revisional power under section 397 read with

section 401 upon the High court is to invest continuous

supervisory jurisdiction so as to prevent miscarriage of

justice or to correct irregularity of the procedure or to

met out justice or to correct irregularity of the procedure

or to met out justice. In addition, the inherent power of

the High Court is preserved by Section 462 . The Power of

the High court therefore is very wide, However , High Court

must exercise such power sparingly and cautiously when the

sessions judges has simultaneously exercised revisional

power under Section 397 (1) however, when the High Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6

notices that there has been failure of justice or misuse of

judicial mechanism or procedure, sentence or order is not

correct, it is but the salutary duty of the High Court to

prevent the abuse of the process or miscarriage of justice

or tow correct irregularities/incorrectness committed by

inferior criminal court in its juridical process or

illegality of sentence or order.

The inherent power of the High Court si not one

conferred by the code but one which the high Court already

has in it and which is preserved by the Code, the object of

Section 397 (3) is to put a bar on simultaneous revisional

applications to the High Court and the court of Sessions so

as to prevent unnecessary delay and multiplicity of

proceeding as seen , under sub-section (3) of section 397

revisional jurisdiction can be invoked by" any person" but

the code has not defined the word 'person', However, under

section 11 of the IPC, 'PERSON' INCLUDES ANY COMPANY OR

ASSOCIATION or body of person whether incorporated or not.

The word 'person' would, therefore include not only the

natural person but also juridical person in whatever form

designated and whether incorporated or not By implication

the State stands excluded form the purview of the word

'person' for the purposes of the limiting its right to avail

the revisional power of the High Court under Section 397 (!)

of the code for the reason that the Sate, being the

prosecutor of the offender, is enjoined to conduct

prosecution on behalf of the society and to take such

remedial steps as it deems proper. The Object behind

criminal law is to maintain law, public order, stability as

also peace and progress in the society, Generally, Private

complaint under section 202 of the code are laid in respect

of non-cognizance offences or when it is found that police

has failed to perform its duty under Chapter XII of Code

or to report as mistake of fact. In view of the principle

laid down in the maxim Ex debito justitiae i.e. in

accordance with the requirements of justice, the prohibition

under section 397 (3) on revisional power given to the High

Court would not apply when the state seek s revision under

section 401 . So the state is not prohibited to avail the

revisional power of the high Court under section 397 (1)

read with section 401 of the code.

Ordinarily, when revision has been barred by Section

397(3) of the Code, a person accused/complainant - cannot be

allowed to take recourse to the revision to the High Court

under Section 397 (1) or under inherent power of the High

Court under Section 482 of the Code since it may amount to

circumvention of the provisions of Section 397 (3) or

section 397(2) of the Code. It is seen that the High Court

has suo motu power under Section 401 and continuous

supervisory jurisdiction under Section 483 of the Code. So,

when the High Court on examination of the record finds that

there is grave miscarriage of justice or abuse of process of

the courts or the required statutory procedure has not been

complied with or there is failure of justice or order passed

or sentence imposed by the Magistrate requires correction,

it is but the duty of the High Court to have it corrected at

the inception lest grave miscarriage of justice would ensue.

It is, therefore, to meet the ends of justice or to prevent

abuse of the process that the High Court is preserved with

inherent power and would be justified, under such

circumstance, to exercise the inherent power and in an

appropriate case even revisional power and in appropriate

case even revisional power under Section 397 (1) read with

Section 401 of the Code. As stated earlier, it may be

exercised sparingly so as to avoid needless multiplicity or

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6

procedure, unnecessary delay in trial and protraction of

proceedings. The object of criminal trial is to render

public justice, to punish the criminal and to see that the

trial is concluded expeditiously before the memory of the

witness fades out. The recent trend is to delay the trial

and threaten the witness or to win over the witness by

promise or inducement. These malpractices need to be curbed

and public justices can be ensured only when expeditious

trial is conducted.

In Madhu Limaye V/s. The State of Maharashtra [(1977) 4

SCC 551], a three-Judge Bench was to consider the scope of

the power of the High Court under Section 482 and Section

397 (2) of the Code. This Court held that the bar on the

power of revision was put in order to facilitate expedient

disposal of the case but in Section 482 it is provided that

nothing in the Code which would include Section 397 (2)

also, shall be deemed to limit or affect the inherent powers

of the High Court. On an harmonious construction of said two

provisions in this behalf, it was held that though the High

Court has no power of revision in an interlocutory order,

still the inherent power will come into play when there is

no provision for redressal of the grievance of the aggrieved

party. In that case, when allegation of defamatory

statements were published in the newspapers against the Law

Minister, the State Government had decided to prosecute the

appellant for offence under Section 500, IPC. After

obtaining the sanction, on a complaint made by the public

prosecutor, cognisance of the commission of the offence by

the appellant was taken to take trial in the Sessions Court.

Thereafter, the appellant filed an application to dismiss

the complaint on the ground that Court had no jurisdiction

to entertain the complaint. The Sessions Judge rejected all

the contentions and framed the charges under Section 406.

The Order of the Sessions Judge was challenged in revision

in the High Court. On a preliminary objection raised on the

maintainability, this Court held that power of the High

Court to entertain the revision was not taken away under

Section 397 or inherent power under Section 482 of the Code.

In V.C. Shukla V/s. State through C.B.I. (1980) 2 SCR

380 at 393], a four-Judge Bench per majority had held that

sub-section (3) of Section 397, however, does not limit at

all the inherent powers of the High Court contained in

Section 482. It merely curbs the revisional power given to

the High Court or the Session Court under Section 397 (1) of

the Code. In Rajan Kumar Manchanda case (supra), the case

relating to release of a truck from attachment, obviously on

filing of an interlocutory application. It was contended

that there was prohibition on the revision by operation of

Section 397 (2) of the Code. In that context it was held

that it was not revisable under section 482 in exercise of

inherent powers by operation of sub-section (3) of Section

397. On the facts in that case, it was held that by virtue

of provisions contained in section 397 (3), the revision is

not maintainable. In Dharam Pal case (supra) which related

to the exercise of power to issue an order of attachment

under Section 146 of the Code, it was held that the inherent

power under Section 482 was prohibited. On the facts in that

case it could be said that the learned Judges would be

justified in holding that it was not revisable since it was

prohibitory interim order of attachment covered under

Section 397 (2) of the Code but the observations of the

learned Judges that the High Court had no power under

Section 482 of the Code were not correct in view of the

ratio of this Court in Madhu Limaye's case (supra) as upheld

in V.C. Shukla's case (supra) and also in view of our

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6

observations stated earlier. The ration in Deepti's case

(supra) is also not apposite to the facts in the present

case. To the contrary, in that case an application for

discharge of the accused was filed in the Court of

Magistrate for an offence under Section 498A, IPC. The

learned Magistrate and the Sessions Judge dismissed the

petition. In the revision at the instance of the accused, on

a wrong concession made by the counsel appearing for the

State that the record did not contain allegation

constituting the offence under Section 498-A, the High Court

without applying its mind had discharged the accused. On

appeal, this Court after going through the record noted that

the concession made by the counsel was wrong. The record did

contain the allegations to prove the charge under Section

498A, IPC. The High Court, since it failed to apply its

mind, has committed an error or law in discharging the

accused leading to the miscarriage of justice. In that

context, this Court held that the order of the Sessions

Judge operated as a bar to entertain the application under

Section 482 of the Code. In view of the fact that the order

of the High Court had led to the miscarriage of justice,

this Court has set aside the order of the High Court and

confirmed that of the Magistrate.

The ratio of Simrikhia's case (supra) has no

application to the facts in this case. Therein, on a private

complaint filed under Section 452 and 323, IPC the Judicial

Magistrate, First Class had taken cognisance of the

offence. He transferred the case for inquiry under Section

202 of the Code to the Second Class Magistrate who after

examining the witnesses issued process to the accused. The

High Court exercising the power under Section 482 dismissed

the revision. But subsequently on an application filed under

Section 482 of the Code, the High Court corrected it. The

question whether the High Court could was right in

reviewing its order. In that factual backdrop, this Court

held that the High Court could not exercise inherent power

for the second time. The ration therein as stated above, has

no application to the facts in this case.

In view of the above discussion, we hold that through

the revision before the High Court under sub-section (1) of

Section 397 is prohibited by sub-section (3) thereof,

inherent power of the High Court is still available under

Section 482 of the Code and as it is paramount power of

continuous superintendence of the High Court under Section

483, the High is justified in interfering with the order

leading to miscarriage of justice and in setting aside the

order of the courts below. It remitted the case to the

Magistrate for decision on merits after consideration of the

evidence. We make it clear that we have not gone into the

merits of the case. Since the High Court has left the matter

to be considered by the Magistrate, it would be in

appropriate at this stage to go into that question. We have

only considered the issue of power and jurisdiction of the

High Court in the in the context of the revisional power

under Section 397 (1) read with Section 397(3) and the

inherent powers. We do not find any justification warranting

interference in the appeal.

The appeal is accordingly dismissed.