TaxTMI 
TaxTMI 
1995 (1) TMI 418
X X X X Extracts X X X X
X X X X Extracts X X X X
....han, M. Chandrasekaran, V. Balakrishanan, K. Selvakumarasamy, S. Thiruvenkatasamy, M. Devaraj, D. Veerasekaran, L. Mohan, A. Selvaraj, K. Selvaraj, M.S. Sudharasanan, D. Rajagopal, R. Vijayaraghavan, G. Ramesh, R.N. Mohideen Basha, M. Karthikeyanarayanan, T.V. Ganesh, V. Balu, A.C. Jayalakshmi, K. Sumathy, C. Deivasynam, R. Sankara Subbu, S. Uthirasamy, P. Govindarajan, R. Shanmugasundaram, B.S. Gnanadesigan, K. Gomi Ganesan, T. Sudanthiram, C. Prasanna Venkatesh, K. Sellathurai, A. Thamizarasan, C. Kalaichalyam, P. Chandrasekaran, K. Jaganathan, R. Sankara Subbu, Mr. Samuvel Raj Pandian, S. Palani Velayutham, K. Gowri Ganesan, Mrs. Bhagirathi Rangarajan, K.S. Ramachandran, C. Prasanna Venkatesh, Calvin Jacob, E.M. Sundarasa Nachiappan, M. Nageswaran, A. Krishna Kumar, L. Mahendran, P. Rathinavel, C.V. Khan, B.K. Singh, G. Balachandran, P. Rathinavel, K. Ravichandran, R. Thiagarajan, V.S. Ramadoss, C.G. Narandran, J. Thiagarajan, A.C. Jayalakshmi, Radhakrishnan, Mohana Krishnan, C.V. Bakthavatchalam, V. Padmanabhan, Balakrishnan, K. Jaganathan, R. Subramanian, S. Jayakumar, K. Sampath, R. Rajan and A. Muralidharan, Advs. For the Respondents : B. Sriramulu, Public Prosecutor. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....for the guidance of the High Court in various Decisions has only imposed certain conditions for the guidance of the High Court for the exercise of the power and the same are only illustrative and not exhaustive. He further submitted that the said restrictions are self-imposed by the Court. In support of the above contentions, learned Counsel cited the following rulings. (a) In Raj Kapoor and Ors. v. State (Delhi) (Administration) (1980 L.W. (Crl.) 109 : A.I.R. 1980 S.C. 258 : CMRP-I-56), the Supreme Court observed as follows: The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482.... In short, there is no total ban on the exercise of inherent power where abuse of the process of the Court or other extraordinary situation exceeds the Court's jurisdiction. The limitation itself is self-restrained, nothing more. The Policy of the law is cle....
X X X X Extracts X X X X
X X X X Extracts X X X X
....upreme Court observed as follows: Section 482 which corresponds to Section 561-A of the old Code and to Section 151 of the Code of Civil Procedure proceeds on the same principle and deals with the inherent powers of the High Court. Such power though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex-debito justitiae to do real and substantial justice for the administration of which alone the Courts exist. The powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Courts must be careful to see that its decision in exercise of this power is based on sound principles." This inherent power conferred by Section 482 of the Code should not be exercised to stifle a legitimate prosecution the High Court being the highest Court of a State, should normally refrain from giving a premature decision in a case wherein the entire facts are extremely incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 not be exercised as against the express bar of law engrafted in any other provision of the 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 settling at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....in respect of any matter covered by the Specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the specific provisions of the Code that Section 561-A can come into operation. No legislative enactment dealing with procedure can provide for all cases that can possible arise and it is an established-principle that the courts should have inherent powers, apart from the express provision of law, which are necessary to their existence and for the proper discharge of the duties imposed upon them by law. This doctrine finds expression in Section 561-A which does not confer any new powers on the High Court but merely recognizes and preserves the inherent powers previously possessed by it. We are, therefore, of the opinion that in a proper case, the High Court has inherent power under S. 561-A, Code of Criminal Procedure to cancel the order or suspension of sentence and grant of bail to the Appellant made under Section 426, Code of Criminal Procedure and grant of bail to the Appellant made under Section 426, Code of Criminal Procedure and to order that the Appellant be re-arreste....
X X X X Extracts X X X X
X X X X Extracts X X X X
....o other particular provision in the Criminal Procedure Code, for the cancellation of the non-bailable warrant and it has been the recent practice of this Court to exercise power under Section 482 Code of Criminal Procedure to recall or cancel the non-bailable warrant and direct the accused to appear before the Magistrate/trial court on a particular date and the same has been misused by the accused. The learned Public Prosecutor pointed out that invariably the accused persons failed to appear before the Court on the date of the trial and then file applications under Section 482 Code of Criminal Procedure and when non-bailable warrants were issued by the Magistrate/trial court, immediately the petitions under Section 482 Code of Criminal Procedure were filed and stay of the proceedings were obtained with the result, the trials before the Courts have been unduly delayed. It has been held by the Supreme Court in several rulings that speedy trial is guaranteed under Article 21 of the Constitution. He further submitted that the Magistrates/trial courts, when they see that the accused person is present for trial on the date fixed, issue non-bailable warrant to make it sure that the accuse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....arned Public prosecutor has also pointed out that as per Section 70(2) of the Criminal Procedure Code, there is a specific provision under the Code for the redressal of the grievance of the Petitioner by filing a separate petition for cancellation of the non-bailable warrant before the Court which issued the same. In view of the same, learned Public Prosecutor submitted that the petitions filed by the various Petitioners before this Court under Section 482 Code of Criminal Procedure are not maintainable and that they are liable to be dismissed, in limine. 5. In support of the said contention, learned Public Prosecutor has also cited the following decision: (a) In R.P. Kapur v. State of Punjab (A.I.R. 1960 S.C. 866), the Supreme Court held as follows: The inherent powers of High Court, under Section 561 - A, Criminal Procedure Code, cannot be exercised in regard to matters specifically covered by the other provisions of the Code. The inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. (b) in Ratilal Bhan....
X X X X Extracts X X X X
X X X X Extracts X X X X
....urt or otherwise to secure the ends of justice. It is thus patently clear that the inherent power is capable of being exercised either 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. Re-call' of a warrant can, by no stretch of imagination, be stated to come under the former clause, to give effect to any order under this Code, which would mean that this Court has power to see whether the warrant that has been issued by Magistrate under Section 70 had been executed by the issuance of a proper direction to the Police Officer, or any other person, to whom the same had been issued, if such an officer is keeping the warrant, without executing it, thereby hampering the progress of speedy trial. In view of specific provision engrafted under Sub-Clause(2) of Section 70 of the code for the redress of the grievance of an aggrieved accused and further remedy by way of revision either under Section 397 or 401 of the Code, simpliciter re-call warrant cannot be stated to attract the latter clause also, namely, to prevent the abuse of the process of any Court or otherwise to secure the ends of jus....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ice in the Court, including any power to make rules of Court and to regulate the sitting of the Court and the members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of Part-III of this Act. The Section enacted that the jurisdiction of the existing High Courts and the powers of the Judges thereof in relation to the administration of justice 'shall be' the same as immediately before the commencement of Part-III of the Act. The statute confirmed and revested in the High Court all its existing powers and jurisdiction including its inherent powers. Then came the Constitution. Article 225 of the Constitution provides: Art. 225. Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any po....
X X X X Extracts X X X X
X X X X Extracts X X X X
....de. However the various rulings of the Supreme Court have imposed certain self-imposed restrictions in exercise of such inherent powers. 9. In R.P. Kapur v. State of Punjab (A.I.R. 1960 S.C. 866), Gajendragadkar, J, (as he then was), has considered the power of this Court, under Section 561-A of the old Code of Criminal Procedure in the following terms: It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings, at an interlocutory stage it is not possible or desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ction 561-A in the matter of quashing criminal proceedings and that is the effect of the judicial decisions on the point (vide in Re : Shripad G. Chandavarkar, AIR 1928 Bom 184) Jagat Chandra Mozumdar v. Queen Empress, ILR Cal. 786, Dr. Shankar Singh v. State of Punjab 56 P.H LR54) (AIR 1954 P.H 193), Nripendra Bhushan Roy v. Gobinda Bandhu Majumadar, AIR 1924 Cal. 1018 and Rama-nathan Chettiyar v. Sivarama Subramania, ILR Mad. 722 (AIR 1925 Mad. 38). 10. In State of Karnataka v. Munisamy (AIR 1977 S.C. 1489 : 1977 L.W. (Crl.) 39 (S.N.) : CMRP 3 23), a reference is made to the earlier decision of the Supreme Court in R.P. Kapur v. The State of Punjab (AIR. 1960 SC 866) and it is observed a follows: Gajendragadkar, J., who spoke for the Court in Kapur's case observes in his judgment that it was not possible, desirable or expedient to law down any inflexible rule which would govern the exercise of the High Court's inherent jurisdiction. The three instances cited in the judgment as to when the High Court would be justified in exercising its inherent jurisdiction are only illustrative and can in the very nature of things not to be regarded as exhaustive. 11. In M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....order assailed in purely of an interlocutory character which could be correct in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise 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 a criminal proceedings initiated illegally, vexatiously or as being without jurisdiction. In short, there is no total ban on the exercise of inherent power where abuse of the process of the Court or other extraordinary situation excites the Court's jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. ....