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PETITIONER:

MOSTT. SIMRIKHIA

Vs.

RESPONDENT:

SMT. DOLLEY MUKHERJEE @ SMT. CHHABIMUKHERJEE & ANR.

DATE OF JUDGMENT02/03/1990

BENCH:

FATHIMA BEEVI, M. (J)

BENCH:

FATHIMA BEEVI, M. (J)

AHMADI, A.M. (J)

CITATION:

1990 AIR 1605 1990 SCR (1) 788

1990 SCC (2) 437 JT 1990 (3) 79

1990 SCALE (1)455

ACT:

Code of Criminal Procedure, 1973: Sections 362 and

482Inherent power of High Court--To be invoked only to

prevent abuse of process of Court and to secure ends of

justice----Not to override express provisions barring re-

view.

HEADNOTE:

A case was instituted on a private complaint by the

appellant for offences under Sections 323 and 452 IPC before

the Judicial Magistrate First Class, who transferred the

case to Second Class Magistrate for enquiry. The Second

Class Magistrate issued process to the respondents, which

was challenged under Section 482 Cr.P.C., on the ground that

the First Class Magistrate transferred the case without

taking cognizance and that the subsequent proceedings were

illegal. The High Court dismissed the petition. Again the

respondents approached the High Court under Section 482

Cr.P.C. alleging that the case had not been taken cognizance

of, before it was transferred. This time the High Court

accepted the plea and quashed the proceedings.

This appeal, by special leave, challenges the High

Court's order on the grounds that the second application

under Section 482 Cr.P.C. ought not to have been entertained

as it amounted to review of the earlier order and it was

contrary to the spirit of section 362 Cr.P.C.

Allowing the appeal, this Court,

HELD: 1.1 The inherent power under Section 482 Cr.P.C.

is intended to prevent the abuse of the process of the Court

and to secure ends of justice. Such power cannot be exer-

cised 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 case, it

would be in order for the High Court to exercise its inher-

ent power in the prevailing circumstances and pass appropri-

ate orders to secure the ends of justice or to

789

prevent the abuse of the process of the Court. Where there

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is no such changed circumstance and the decision has to be

arrived at on the facts that existed as on the date of

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. [790F-H; 791A]

1.2 Ira matter is covered by an express letter of law,

the court cannot give a go-by to the statutory provisions

and instead evolve a new provision in the garb of inherent

jurisdiction. The inherent jurisdiction of the High Court

cannot be invoked to override bar of review under Section

362 Cr.P.C. [791E-H]

Sooraj Devi v. Pyare Lal, [1981] 1 SCC 500, relied on.

Superintendent & Rememberancer of Legal Affairs v. Mohan

Singh, [1975] 3 SCC 706, referred to.

2. In the instant case, there had been a definite find-

ing that the complaint was taken cognizance of by the Magis-

trate before he transferred the proceedings under section

192(2) Cr.P.C. 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 in a subsequent proceeding is not, therefore,

warranted. 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. [791 B-C]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 128

of 1990.

From the Judgment and Order dated 19.8.1989 of the Patna

High Court in Criminal Miscellaneous No. 2314 of 1989.

A.D. Sikri, Ranjan Mukherjee and D. Goburdhan for the

Appellant.

R.K. Garg and A. Sharan for the Respondents.

The Judgment of the Court was delivered by

FATHIMA BEEVI, J. Special leave granted.

790

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 sec-

tions 452 and 323 I.P.C., the Judicial Magistrate First

Class, Patna, in exercise of power under section 192(2)

Cr.P.C. transferred the case for enquiry under section 202

of the Code. The Court of the Second Class Magistrate, after

examining witnesses, by order dated 22.3. 1985 issued proc-

ess to the two accused, the respondents herein. The order of

the Magistrate issuing process was challenged by the re-

spondents 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 cogni-

zance 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.

Petition 2314/89 under section 482 Cr.P.C. before the High

Court alleging, inter alia, that the record of the proceed-

ings 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.

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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 Cr.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 considera-

tion 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 case, 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

791

same materials to arrive at different conclusion is in

effect a review, which is expressly barred under section

362.

In the present case, there had been a definite finding

that the complaint was taken cognizance 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.

Section 362 of the Code expressly provides that no court

when it has signed its judgment or final order disposing of

a case, shall alter or review the same except to correct a

clerical or arithmetical error save as otherwise provided by

the Code. Section 482 enables the High Court to make such

order 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. The inherent pow-

ers, however, as much are controlled by principle and prece-

dent as are its express powers by statute. If a matter is

covered by an express letter of law, the court cannot give a

go-by to the statutory provisions and instead evolve a new

provision in the garb of inherent jurisdiction.

In Superintendent & Remembrancer of Legal Affairs v.

Mohan Singh, [1975] 3 SCC 706, this Court held that section

561A preserves the inherent power of the High Court to make

such orders as it deemed fit to prevent abuse of the process

of the Court or to secure the ends of justice and the High

Court must therefore exercise its inherent powers having

regard to the situation prevailing at the particular point

of time when its inherent jurisdiction is sought to be

invoked. In that case the facts and circumstances obtaining

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at the time of the subsequent application were clearly

different from what they were at the time of the earlier

application. The question as to the scope and ambit of the

inherent power of the High Court vis-a-vis an earlier order

made by it was, therefore, not concluded by this decision.

The inherent jurisdiction of the High Court cannot be

invoked to override bar of review under section 362. It is

clearly stated in Sooraj

792

Devi v. Pyare Lal, [1981] 1 SCC 500 that the inherent power

of the court cannot be exercised for doing that which is

specifically prohibited by the Code. The law is therefore

clear that the inherent power cannot be exercised for doing

that which cannot be done on account of the bar under other

provisions of the Code. The court is not empowered to review

its own decision under the purported exercise of inherent

power. We find that the impugned order in this case is in

effect one reviewing the earlier order on a reconsideration

of the same materials. The High Court has grievously erred

in doing so. Even on merits, we do not find any compelling

reasons to quash the proceedings at that stage.

We allow the appeal and set aside the order of the High

Court.

G.N. Appeal

allowed.

793