Inherent Powers Under Section 482 code of Criminal Procedure

31. The inherent power under Section 482 code of Criminal Procedure. is intended to prevent the abuse of the process of the Court and to secure the ends of justice. Such power cannot be exercised to do something which is expressly barred under the code of Criminal Procedure. If any consideration of the facts by way of review is not permissible under the code of Criminal Procedure. 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 are 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 same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362 code of Criminal Procedure. (See: Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee and Anr. (1990) 2 SCC 437)

32. The inherent power of the court under Section 482 code of Criminal Procedure. is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court, amounts to abuse of the process of court. Therefore, such powers can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the court under the code of Criminal Procedure. Inherent powers cannot be exercised assuming that the statute conferred an unfettered and arbitrary jurisdiction, nor can the High Court act at its whim or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. (Vide: Kurukshetra University and Anr. v. State of Haryana and Anr., AIR 1977 SC 2229; and State of W.B. and Ors. v. Sujit Kumar Rana, (2004) 4 SCC 129).

33. The power under Section 482 code of Criminal Procedure. cannot be resorted to if there is a specific provision in the code of Criminal Procedure. for the redressal of the grievance of the aggrieved party or where alternative remedy is available. Such powers cannot be exercised as against the express bar of the law and engrafted in any other provision of the code of Criminal Procedure. Such powers can be exercised to secure the ends of justice and to prevent the abuse of the process of court. However, such expressions do not confer unlimited/unfettered jurisdiction on the High Court as the ‘ends of justice’ and ‘abuse of the process of the court’ have to be dealt with in accordance with law including the procedural law and not otherwise. Such powers can be exercised ex debito justitiae to do real and substantial justice as the courts have been conferred such inherent jurisdiction, in absence of any express provision, as inherent in their constitution, or such powers as are necessary to do the right and to undo a wrong in course of administration of justice as provided in the legal maxim ‘quando lex aliquid alique, concedit, conceditur et id sine quo res ipsa esse non potest’. However, the High Court has not been given nor does it possess any inherent power to make any order, which in the opinion of the court, could be in the interest of justice as the statutory provision is not intended to by-pass the procedure prescribed. (Vide: Lalit Mohan Mondal and Ors. v. Benoyendra Nath Chatterjee, AIR 1982 SC 785; Rameshchandra Nandlal Parikh v. State of Gujarat and Anr., AIR 2006 SC 915; Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS and Anr., AIR 2006 SC 2872; Inder Mohan Goswami and Anr. v. State of Uttaranchal and Ors., AIR 2008 SC 251; and Pankaj Kumar v. State of Maharashtra and Ors., AIR 2008 SC 3077).

34. The High Court can always issue appropriate direction in exercise of its power under Article 226 of the Constitution at the behest of an aggrieved person, if the court is convinced that the power of investigation has been exercised by an Investigating Officer malafide or the matter is not investigated at all. Even in such a case, the High Court cannot direct the police as to how the investigation is to be conducted but can insist only for the observance of process as provided for in the code of Criminal Procedure. Another remedy available to such an aggrieved person may be to file a complaint under Section 200 code of Criminal Procedure. and the court concerned will proceed as provided in Chapter XV of the code of Criminal Procedure. (See: Gangadhar Janardan Mhatre v. State of Maharashtra and Ors., (2004) 7 SCC 768; and Divine Retreat Centre v. State of Kerala and Ors., AIR 2008 SC 1614).

35. The provisions of Section 482 code of Criminal Procedure. closely resemble Section 151 of code of Civil Procedure, 1908, (hereinafter called the `code of code of Civil Procedure’), and, therefore, the restrictions which are there to use the inherent powers under Section 151 code of Civil Procedure are applicable in exercise of powers under Section 482 code of Criminal Procedure. and one such restriction is that there exists no other provision of law by which the party aggrieved could have sought relief. (Vide: The Janata Dal v. H.S. Chowdhary and Ors., AIR 1993 SC 892).

36. In Divisional Forest Officer and Anr. v. G.V. Sudhakar Rao and Ors., AIR 1986 SC 328, this Court held that High Court was not competent under Section 482 code of Criminal Procedure. to stay the operation of an order of confiscation under Section 44(IIA) of the Andhra Pradesh Forest Act as it is distinct from a trial before a court for the commission of an offence.

37. In Popular Muthiah v. State represented by Inspector of Police, (2006) 7 SCC 296, explaining the scope of Section 482 code of Criminal Procedure., this Court held:

The High Court cannot issue directions to investigate the case from a particular angle or by a particular agency.

(Emphasis added)

Thus, in case, the High Court in exercise of its inherent powers, issues directions contravening the statutory provisions laying down the procedure of investigation, it would be unwarranted in law.

38. In Rajan Kumar Machananda v. State of Karnataka, (1990) suppl. SCC 132, this Court examined a case as to whether the bar under Section 397(3) code of Criminal Procedure. can be circumvented by invoking inherent jurisdiction under Section 482 code of Criminal Procedure. by the High Court. The Court came to the conclusion that if such a course was permissible it would be possible that every application facing the bar of Section 397(3) code of Criminal Procedure. would be labelled as one under Section 482 code of Criminal Procedure. Thus, the statutory bar cannot be circumvented.

39. This Court has consistently emphasised that judges must enforce laws whatever they may be and decide the cases strictly in accordance with the law. ‘The laws are not always just and the lights are not always luminous. Nor, again, are judicial methods always adequate to secure justice’. But the courts ‘are bound by the penal code and code of Criminal Procedure’ by the very ‘oath’ of the office.

(See: Joseph Peter v. State of Goa, Daman and Diu AIR 1977 SC 1812).

40. It is evident from the above that inherent powers can be exercised only to prevent the abuse of the process of the court and to secure the ends of justice. However, powers can be used provided there is no prohibition for passing such an order under the provisions of code of Criminal Procedure. and there is no provision under which the party can seek redressal of its grievance. Under the garb of exercising inherent powers, the Criminal Court cannot review its judgment. Such powers are analogous to the provisions of Section 151 code of Civil Procedure and can be exercised only to do real and substantial justice. The rule of inherent powers has its source in the maxim ‘Quadolex aliquid alicui concedit, concedere videtur id sine quo ipsa, ess uon potest’ which means that when the law gives anything to anyone, it gives also all those things without which the thing itself could not exist. The order cannot be passed by-passing the procedure prescribed by law. The court in exercise of its power under Section 482 code of Criminal Procedure. cannot direct a particular agency to investigate the matter or to investigate a case from a particular angle or by a procedure not prescribed in code of Criminal Procedure. Such powers should be exercised very sparingly to prevent abuse of process of any court. Courts must be careful to see that its decision in exercise of this power is based on sound principles.

To inhere means that it forms a necessary part and belongs as an attribute in the nature of things. The High Court under Section 482 code of Criminal Procedure. is crowned with a statutory power to exercise control over the administration of justice in criminal proceedings within its territorial jurisdiction. This is to ensure that proceedings undertaken under the code of Criminal Procedure. are executed to secure the ends of justice. For this, the Legislature has empowered the High Court with an inherent authority which is repository under the Statute. The Legislature therefore clearly intended the existence of such power in the High Court to control proceedings initiated under the code of Criminal Procedure. Conferment of such inherent power might be necessary to prevent the miscarriage of justice and to prevent any form of injustice. However, it is to be understood that it is neither divine nor limitless. It is not to generate unnecessary indulgence. The power is to protect the system of justice from being polluted during the administration of justice under the code. The High Court can intervene where it finds the abuse of the process of any court which means, that wherever an attempt to secure something by abusing the process is located, the same can be rectified by invoking such power. There has to be a nexus and a direct co-relation to any existing proceeding, not foreclosed by any other form under the code, to the subject matter for which such power is to be exercised.

Application under Section 482 code of Criminal Procedure. lies before the High Court against an order passed by the court subordinate to it in a pending case/proceedings. Generally, such powers are used for quashing criminal proceedings in appropriate cases. Such an application does not lie to initiate criminal proceedings or set the criminal law in motion. Inherent jurisdiction can be exercised if the order of the Subordinate Court results in the abuse of the ‘process’ of the court and/or calls for interference to secure the ends of justice. The use of word ‘process’ implies that the proceedings are pending before the Subordinate Court. When reference is made to the phrase ‘to secure the ends of justice’, it is in fact in relation to the order passed by the Subordinate Court and it cannot be understood in a general connotation of the phrase. More so, while entertaining such application the proceedings should be pending in the Subordinate Court. In case it attained finality, the inherent powers cannot be exercised. Party aggrieved may approach the appellate/revisional forum. Inherent jurisdiction can be exercised if injustice done to a party, e.g., a clear mandatory provision of law is overlooked or where different accused in the same case are being treated differently by the Subordinate Court.

An inherent power is not an omnibus for opening a pandorabox, that too for issues that are foreign to the main context. The invoking of the power has to be for a purpose that is connected to a proceeding and not for sprouting an altogether new issue. A power cannot exceed its own authority beyond its own creation. It is not that a person is remediless. On the contrary, the constitutional remedy of writs are available. Here, the High Court enjoys wide powers of prerogative writs as compared to that under Section 482 code of Criminal Procedure. To secure the corpus of an individual, remedy by way of habeas corpus is available. For that the High Court should not resort to inherent powers under Section 482 code of Criminal Procedure. as the Legislature has conferred separate powers for the same. Needless to mention that Section 97 code of Criminal Procedure. empowers Magistrates to order the search of a person wrongfully confined. It is something different that the same court exercising authority can, in relation to the same subject matter, invoke its writ jurisdiction as well. Nevertheless, the inherent powers are not to provide universal remedies. The power cannot be and should not be used to belittle its own existence. One cannot concede anarchy to an inherent power for that was never the wisdom of the Legislature. To confer un-briddled inherent power would itself be trenching upon the authority of the Legislature.


SOURCE: State of Punjab Versus Davinder Pal Singh Bhullar and Others