By Siddharth Dalmia
Jindal Global Law School
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Some of the prominent confusions that have been prevailing within the Bar and the Bench pertain to the applicability of Sections 397 to 401 and 482 of the Cr.P.C. and Article 227 of the Constitution of India, include the confusion relating to the Court which can be approached first and after that. Is there any preferential judicial remedy amongst Sections 397 to 401 and 482 of the Cr.P.C. and Article 227? One thing, for sure, is that as of now, the Hon'ble Supreme Court of India has settled this issue in the case of Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs. CBI (MANU/SCOR/14976/2018) that the order framing charge is not purely an interlocutory order nor a final order, and Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution.
Since u/s 397 of Cr.P.C., both the Sessions as well as High Court has concurrent jurisdiction, one of the prominent question that has been haunting the Bench and the Judiciary is, which Court should be approached first? Another question is whether after exhausting the remedy u/s 397 of the Cr.P.C., can the remedy of 482 of Cr.P.C. be availed? The last but not the least important question is, can the High Court be approached u/s 482 despite the remedy being available u/s 397 of the Cr.P.C. It may be noted that all these queries are inter-related, and the answer is that the powers of the High Court u/s 482 and Article 227 of the Constitution of India are unfettered, which can be availed irrespective of availing the remedies u/s 397 of the Cr.P.C.
Section 397(1) of Cr.P.C.1 reads as under:
The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for 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 proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub- Section and of Section 398.
Section 397(2) of Cr.P.C. reads as under:
If an application under this 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.
The above statutory provisions show that there is no bar as to when the High Court can be approached. It is not imperative that the remedy from the lower court, i.e., the Court of Sessions must be exercised before the remedy through the High Court. The only bar in the Section pertains to the revision petition can only be exercised by the court under its jurisdiction. Where a petition lies against an order of the Court of Sessions, the revision petition can only be filed in a High Court with relevant jurisdiction. Also, it is an established fact if the revision petition is dismissed by the Sessions Court then such petition cannot be entertained again by the High Court.
For example, if X has filed a revision petition against Y under Section 397 of Cr.P.C. and it has been rejected by the Court of Sessions, he is barred from filing a revision petition again in the High Court. But if such petition is accepted and X gets relief, then a revision petition can still be filed by Y in the High Court of appropriate jurisdiction.
The same was held in the case of CBI vs. the State of Gujarat2, in which it was decided that there is no statutory limitation as to which court (Sessions Court or the High Court) can be approached first, and this judgement has been referred and reiterated in various High Court decisions.
The application of 482 when 397-401 are still applicable:
Section 397(2) of the Cr.P.C. provides that the powers of revision conferred by sub- Section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.3
The question of inherent powers of the court was decided by the apex court in the case of Madhu Limaye vs. State of Maharashtra4. In this case, it was held that the bar under Section 397(2) to entertain the revision application regarding the interlocutory orders cannot be said to be a bar under 482 of Cr.P.C., as Section 482 is independent of Section 397- 401 of Cr.P.C. which gives wide ambit of powers to the High Court which cannot be listed exhaustively.
In case of Raj Kapoor v. State5 it was reiterated that the Section 397 of Cr.P.C. could not be held as a bar on Section 482 of Cr.P.C. and therefore, the inherent powers of High Courts cannot be affected by other provisions of Cr.P.C., 1973.
But the ultimate question, i.e., whether the courts can be approached under 482 when the remedies under 397- 401 of Cr.P.C. are available has been a judicial hotchpotch. The matter was resolved and finally determined recently. Earlier there were two conflicting judgements regarding the same: Dhariwal Tobacco Products Ltd. v. State of Maharashtra6, and Mohit alias Sonu v. State of Uttar Pradesh7. In Dhariwal, it was established that even if you had a remedy under the Section 397- 401 of Cr.P.C., one could still invoke the inherent powers of the High Court through the Section 482 of Cr.P.C., but the ratio of Mohit vs. State of U.P. was completely opposite, i.e., you would be barred from invoking Section 482 of Cr.P.C. if the remedy can be sought after through the Sections 397- 401 of Cr.P.C.
Keeping the above two conflicting judgements in mind, the matter was finally resolved in Prabhu Chawla v. state of Rajasthan8. The three- judge bench held and clarified the law deciding that the available remedy under Cr.P.C. would not be held as a bar to make a petition under Section 482 of Cr.P.C. The rationale behind the judgement was that Section 482 begins with a non- obstante clause, i.e., "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." Therefore, it was held, that there cannot be a bar on the exercise of such wholesome jurisdiction. Justice Krishna Iyer reiterated the same by saying, "abuse of the process of the court or other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more." Another reasoning which was given regarding the same was that the Section 397 is only barred by the Section 397(2), i.e., regarding the interlocutory orders. But if held otherwise, the purview of the Section 482 would become limited to only interlocutory orders which cannot be the case and is an irrational finding.
Hence, it has now been decided that the remedy under Section 397 of Cr.P.C. does not bar the same remedy sought under Section 482 of Cr.P.C.
Now the question is, can Section 397- 401 be circumvented through Section 482 of Cr.P.C.? The earlier stand of the Supreme Court on this issue was determined by Rajan Kumar Machananda vs. State of Karnataka9, where it was held that once the revisional petition under the Section 397 of Cr.P.C., the remedy under Section 482 cannot be sought. The reasoning behind the same was if the opposite were true, it would render the Section 397- 401 redundant and every revision petition rejected and not giving the favorable judgement to the petitioner would be reopened using the Section 482 of Cr.P.C. In short, it was said that every application facing the bar of Section 397(3) Cr.P.C. would be labelled as one under Section 482 Cr.P.C. Thus, the statutory bar cannot be circumvented. Though this matter was referred to a higher bench and although it was subsequently overruled, the surprising fact is it was cited and used in State of Punjab Vs. Davinder Pal Singh Bhullar and others etc.10
The Section 482 of Cr.P.C. talks about the inherent powers of the High Court. The inherent powers of the High Court are not the one conferred by the code, but the ones which the High Court already has in it and the code merely preserves this power. Section 397(3) of Cr.P.C. is just a bar so as to result in a speedy trial and prevent unnecessary delays and multiplicity of the same proceedings. What happens if the High Court has made an error in the judgement which has resulted in grave injustice? Therefore, it was held in the case of Krishnan and Anr. v. Krishnaveni and Anr.11, as under:
"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 meet out justice or to correct irregularity of the procedure or to meet out justice.
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. "12
From above, it can be inferred that when there is a grave injustice or infringement of principles of justice and equity, the inherent powers of the High Court can still be invoked. Therefore, although the decision against the revision petition cannot be circumvented per say, if there is a grave injustice the remedy can still be sought after, and the decision under Sections 397- 401 of Cr.P.C. is no bar for that. The judgement of Rajan Kumar Machananda vs. the State of Karnataka13 stands overruled as the Krishnan judgement has been decided by the three- judge Supreme Court Bench and former was decided by the two judge Bench.
The findings of this case have been reiterated and used (and this case has been cited in many judgements) in many cases and in T. Sudhakar Prasad vs. Govt. of A.P. & Ors.14 It was again clarified that the decision under Sections 397- 401 of Cr.P.C. could only be circumvented/ appealed only if any serious prejudice has been caused to the petitioner, so as to enable him to overcome the statutory bar under Section 397(3) Cr.P.C. Proving grave injustice is a must if the petitioner wants to resort back to Section 482 of Cr.P.C. against a decision under Section 397 of Cr.P.C.
1 (Code of Criminal Procedure, 1973)
3 (Code of Criminal Procedure, 1973)
4 (1978) 1 SCR, 749
5 (1980) 1 SCC 43
6 AIR 2009 SC 1032
7 AIR 2013 SC 2248
8 AIR 2016 SC 4245
9 1990 (supp.) SCC 132
10 2012(1) RCR (Crl.) 126
11 (1997) 4 SCC 241
12 Krishnan and Anr. v. Krishnaveni and Anr.(1997) 4 SCC 241
14 Appeal (civil) 5089 1998
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