TaxTMI 
TaxTMI 
1991 (1) TMI 466
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.... as adverted to earlier, would mean in the context that it is in relation to a proceeding in the High Court or any subordinate Court and that proceeding too must have a judicial character and not of an executive or administrative one Thus, Janarthanam, J., expressed his agreement with the view expressed by a learned Judge of this Court in Rajan R. v. State of Tamil Nadu (1987 L.W. Crl. 43) and his disagreement with the statement of law in Ramakrishnan v. The State of Tamil Nadu (1983 L.W. Crl. 181) by another learned single judge of this Court. 2. Chapter 32 of the Code contains provisions with respect to execution, suspension, remission and commutation of sentences and in Section 432, it states, "Power to suspend or remit sentences:(i) When any person has been sentenced to punishment for an offence, the appropriate Government may, at any time, without conditions or upon any conditions which the person sentenced accepts, suspend the execution of his sentence or remit the whole or any part of the punishment to which he has been sentenced. (2) Whenever an application is made to the appropriate Government for the suspension or remission of a sentence, the appropriate Go....
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....ion, at a glance, shows that, 'to make such orders as may be necessary' to give effect to any order' under the Code, or to prevent the abuse of process of any Court or otherwise to secure the ends of justice is intervened by the disjunctive 'or'. A closer look, however, shows that while the first 'to give effect to any order under this Code' is followed by a comma or closed by a comma, the latter 'to prevent the abuse of process of any Court or otherwise to secure the ends of justice are left without a comma to disjoin them. Thus viewed, the High Court's inherent power is, confined, (1) To make such orders as may be necessary to give effect to any order under the Code. (2) To make such orders as may be necessary to prevent the abuse of process of any Court or otherwise to secure the ends of justice. 5. The first part or the first clause, understood as above, conveys that the inherent power of the High Court can come into play when it is necessary to give effect to any order under the Code, if there is no express bar and if there is no other provision of the Act to ensure the implementation of the order. The second part or the clause will be av....
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....ld be noticed that it is only the High Courts whose inherent power is recognised by Section 561-A; and even in regard to High Court's inherent power definite salutary safeguards have been laid down as to its exercise. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any Court would be abused or that the ends of justice would not be secured that the High Court can and must exercise its inherent power under Section 561-A. There can thus be no dispute about the scope and nature of the inherent power of the High Courts and the extent of its exercise. 7. In Khushi Ram v. Hashim (A.I.R. 1959 S.C. 542), the Supreme Court considered a case where the matter as to the quashing of a committal proceedings was asked to which was directly covered by Section 215 of the Code of Criminal Procedure, 1898 and noticed: The judgment delivered by the learned Judge in exercising his jurisdiction under Section 561-A shows that Section 215 had been cited before him by the complainant and it was urged before him that it was not competent to the learned Judge to entertain the application for quashing t....
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....eeding so initiated by the first information report in question. Pending the hearing of the said petition in the said High Court, the police report was submitted under Section 173 of the Code on July 25, 1959. The High Court upon that held that no case had been made out for quashing the proceedings under Section 561-A. The Supreme Court dismissed the appeal, but stated about the scope of Section 561-A in the following words: Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under Section 561-A of the Code. The said section saves the inherent power 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. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code. In the present case the magistrate before whom the police report has been filed under Section 173 of the Code has yet not applied his mind to the merits of the said report and it may be assumed in favour of the Appell....
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....either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases, it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A, the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would no, be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. 9. The cases above however generally dealt with the scope of Section 561-A of the Code and suggested the limitations under which the High Court should exercise, its inherent power. These cases either related to proceedings in Court or brought before the Court as a police report, thus at the ....
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....des that those which the Court already inherently possesses shall be preserved and is inserted as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Code of Criminal Procedure and that no inherent powers had survived the passing of that Act. The Supreme Court recognized that the judiciary should not exercise the functions of the police and confine to its own functions when a charge is preferred before it and not until then. In this judgment, the Supreme Court thus recognized a rule that the Court's inherent powers are limited to the proceedings in Court and do not go beyond it. The Supreme Court reiterated this law in several other cases including Jehan Singh v. Delhi Administration (A.I.R. 1974 S.C. 1146) ((1974) 3 S.C.R. 794). 11. The cases of Sharda Prasad v. State of Bihar (A.I.R. 1977 S.C. 1754) and Bindeshwari Prasad v. Kali Singh (A.I.R. 1977 S.C. 2432) are not exactly on point, but they do say that the power of the High Court under Section 561-A of the Code should be sparingly used and that there is absolutely no provision in the Code of Criminal Procedure of 1898 empowering a Magist....
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....ernment. The executive which is charged with a duty to keep vigilance over law and order situation is all obliged to prevent crime and if an offence is alleged to have been committed, it is its bounden duty to investigate into the offence and bring the offender to book. Once it investigates and finds an offence having been committed it is its duty to collect evidence for the purpose of proving the offence. Once that is completed and the investigating officer submits report to the Court requesting the Court to take cognizance of the offence under Section 190 of the Code its duty comes to an end. On a cognizance of the offence being taken by the Court the police function of investigation comes to an end subject to the provision contained in Section 173(8), there commences the adjudicatory function of the judiciary to determine whether an offence has been committed and if so whether by the person or persons charged with the crime by the police in its report to the Court, and to award adequate punishment according to law for the offence proved to the satisfaction of the Court. There is thus a well defined and well demarcated function in the field of crime detection and its subsequent a....
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.... Committee in the case of King Emperor v. Khwaja Nizam Ahmed (A.I.R. 1945 P.C. 18) (supra) and this Court in R.P. Kapur v. State of Punjab (A.I.R. 1960 S.C. 866) (supra), Jehan Singh v. Delhi Administration (A.I.R. 1974 S.C. 1146) (supra), S.N. Sharma v. Bipen Kumar Tiwari (A.I.R. 1970 S.C. 786) (Supra) have clearly laid down that no investigation can be permitted and have made the observations which I have earlier quoted and which were relied on by Mr. Sen. As I have earlier observed this proposition is not only based on sound logic but is also based on fundamental principles of justice, as a person against whom no offence is disclosed, cannot be put to any harassment by the process of investigation which is likely to put his personal liberty and also property which are considered sacred and sacrosanct into peril and jeopardy. 17. The seven learned judges of the Bench of the Allahabad High Court in Ram Lal Yadav v. State of U.P. (1989 Cri. L.J. 1013) also said that the police investigation cannot be interfered with by the High Court in the exercise of its inherent powers under Section 482 of the Code and observed on the question whether there would be any remedy when the first ....
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....t cannot be invoked to override bar of review under Section 362. It is clearly stated in Sooraj Devi v. Pyare Lal ((1981) I SCC. 500 : (A.I.R. 1981 S.C. 756) 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 re-viewing 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. The Supreme Court came to the above conclusion in these circumstances. In a case instituted on a private complaint by the Appellant for offences under Sections 452 and 323, I.P.C., the Judicial Magistrate, First Class, Patna, in the exercise of power under Section 192(2) Code of Criminal Procedure, transferred the case for enquiry under Section 202 of the Code. The Court of....
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.... the Code preserved the inherent power of the High Court to make suitable orders (1) to give effect to any order under the Code, and (2) to prevent abuse of the process of the Court, but (3) it does not empower the High Court to interfere with executive authorities actions and (4) the order under the section to secure the ends of justice must be in relation to a proceeding in the High Court or any subordinate criminal Court and that proceeding too must have judicial character and not of an executive or administrative one. The Patna High Court in Kula Chandra Dutt v. Emperor (A.I.R. 1946 Pat 191) clearly said that Section 561-A (old Code) came into operation only when the impugned order was passed by a 'Court' and that if the order moved against in the High Court is one passed by an executive officer at the Crown in his administrative capacity, Section 561-A was not attracted. Coming to the question of parole, however, and the exercise of the power under Section 432(5), Code of Criminal Procedure, in K. Sudesthamma v. State of A.P. (1985 Cri.L.J. 1890), a learned Judge of the Andhra Pradesh High Court considered whether Section 482, Code of Criminal Procedure. enabled the Hi....
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....cember, 1989 in S.D. Ashok Kumar v. State representative by the Sub Inspector of Police (1990 L.W. (Crl.) 10) a learned single Judge of this Court found that, although in the rarest of rare cases where the liberty of an individual so sacred and sacrosanct has to be protected zealously, this Court's jurisdiction under Section 482 of the Code can be invoked to quash a First Information Report. 23. On the question of parole also, it appears that the view of this Court has not been consistent. While one of the learned single Judges of this Court in Ramakrishnan v. The State of Tamil Nadu (1983 L.W. Crl. 181) and another in Masilamani v. State of Tamil Nadu (1987 L.W. Crl. 26) took the view that in extraordinary situations, the Court should relegate technical and procedural matters to the background and take human factors into consideration and give relief to the parties within the bounds of law and thus exercise power under Section 482 of the Code of Criminal Procedure, another learned single Judge in Rajan R. v. State of Tamil Nadu (1987 L.W. Crl. 43) took the view that the order of refusal to grant leave is final and that the Court should not sit in appeal over the decision of....
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.... v. State of Maharashtra (A.I.R. 1978 S.C. 47) that powers under Section 482, Code of Criminal Procedure cannot be exercised as against the express bar of law engrafted in any other provision of the Code. In this case, exercising the power of granting parole will amount to usurping the function of the Government under Section 482, Code of Criminal Procedure Hence the request of the Petitioner will have to be negatived and accordingly this petition is dismissed. 24. It will thus be a pertinent question to us to consider whether the words "otherwise to secure the ends of justice" in Section 482 of the Code as pointed out in Ramakrishnan's case (1983 L.W. (Crl.) 7 181) or in Vishwa Nath Verma's case (1986 Crl. L.J. 1800) have the content to extend the inherent jurisdiction of the Court to situations as in the case of a First Information Report taken up for investigation by the Police and jurisdiction for grant of parole exercisable under Section 432 of the Code would empower this Court to interfere or not. It has to be first understood that the inherent power of the Court under Section 482 of the Code of Criminal Procedure is a saving and not a grant of power by a statute. ....
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....ub-clause (a) of Clause (1) shall affect the power conferred by law on any officer of the Armed Forces of the Union to suspend, remit or commute a sentence passed by a Court Martial. (3) Nothing in Sub-clause (c) of Clause (1) shall affect the power to suspend, remit or commute a sentence of death exercisable by the Governor...of a State under any law for the time being in force. 26. Similarly Article 161 of the Constitution in Part VI Chapter I states, The Governor of a State shall have the power to grant pardons, reprieves, respites, or remissions of punishment or to suspend, remit or commute the sentence of any person convicted of any offence against any law relating to a matter to which the executive power of the State extends. 27. In K.M. Nanavati v. State of Bombay (A.I.R. 1961 S.C. 112), a Constitution Bench of the Supreme Court had the occasion to consider the Ambit of Article 161 of the Constitution and Sections 401 and 426 of the Code of Criminal Procedure, 1898. The matter had gone before the Supreme Court in connection with a case in which the Petitioner, who was Second in Command of I.N.S. Mysore had been arrested in connection with a charge of ....
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....tains in India since the Code of Criminal Procedure was enacted in 1898. Section 401 of the Code gives power to the executive to suspend the execution of the sentence or remit the whole or any part of the punishment without conditions or upon any conditions which the person sentenced accepts. Section 402 gives power to the executive without the consent of the person sentenced to commute a sentence of death into imprisonment for life and also other sentences into sentences less rigorous in nature. In addition the Governor General had been delegated the power to exercise the prerogative power vesting in His Majesty. Sub-section (5) of Section 401 also provides that nothing contained in it shall be deemed to interfere with the right of His Majesty, or the Governor General when such right is delegated to him, to grant pardons, reprieves, respites or remissions of punishment. This position continued till the Constitution came into force. Two provisions were introduced in the Constitution to cover the former royal prerogative relating to pardon, and they are Articles 72 and 161. Article 72 deals with the power of the President to grant pardons, reprieves, respites or remissions of punish....
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....161 is also contained in Article 142, namely, the power of suspension of sentence during the period when the matter is sub judice in this Courts Therefore on the principle of harmonious construction and to avoid a conflict between the two powers it must be held that Article 161 does not deal with the suspension of sentence during the time that Article 142 is in operation and the matter is sub judice in this Court.... when we compare the language of Articles 72 and 161 with the language of Section 295(2) of the Government of India Act, we find no words like Nothing in this Constitution" or "Notwithstanding anything contained in this Constitution" in them. Such words have been used in many articles of the Constitution: (See for example, Article 262(2) which provides specifically for taking away by Parliament by law the power of this Court in disputes relating to water and begins with words "Notwithstanding anything in this Constitution"). The absence thereof of any such qualifying words in Article 161 makes the power of this Court under Article 142 of the same vide amplitude within its sphere as the power conferred on the Governor under Article 161. Therefore, if there is any field w....
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....ndra v. Khagendranath (A.I.R. 1961 S.C. 334) speaking about the effect of order of revision under Section 401 of the Code of Criminal Procedure, 1898, the Supreme Court said, Now it is not disputed that in England and India the effect of a pardon or what is sometimes called a free pardon is to clear the person from all infamy and from all consequences of the offence for which it is granted and from all statutory or other disqualifications following upon conviction. It makes him, as it were, a new man: (see Halsbury's Laws of England, Vol. VII Third Edition p. 244 para 529). But the same effect does not follow on a mere remission which stands on a different footing altogether. In the first place, an order of remission does not wipe out the conviction. All that it does is to have an effect on the execution of the sentence; though ordinarily a convicted person would have to serve out the full sentence imposed by a court, he need not do so with respect to that part of the sentence which has been ordered to be remitted. An order of remission thus does not in any way interfere with the order of the court; it affects only the execution of the sentence passed by the court and ....
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....6 of the Constitution of India. The Punjab Court has said, From what has been stated above, it is clear that the powers vested in the President of India under Article 72; in the Governor under Article 161 of the Constitution and in the State Government under Section 401 of the Code of Criminal Procedure are essentially executive powers of mercy which operate in a completely different field. The trial of criminals and the passing of sentences is purely in the domain of the judiciary whereas the execution of sentences is purely with the Executive Government. Thus it is clear that the order passed by the State Government under Section 401 of the Code of Criminal Procedure in this case is essentially and basically an executive order and the same has to operate in a completely different field and thereafter said, From the above discussion, I therefore, conclude that an order passed under Articles 72 and 161 of the Constitution of India and under Section 401 of the Code of Criminal Procedure, is justiciable on any of the following grounds: 1. That the authority, which purported to have exercised the power, had no jurisdiction to exercise the same. ....
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....istence The deprivation of personal liberty and the threat of the deprivation of life by the action of the State is in most civilised societies regarded seriously, and recourse, either under express constitutional provisions or through legislative enactment is provided to the judicial organ. But, the fallibility of human judgment being undeniable even in the most trained mind, a mind resourced by a harvest experience, it has been considered appropriate that in the matter of life and personal liberty, the protection should be extended by entrusting power further to some high authority to scrutinise the validity of the threatened denial of life or the threatened of continued denial of personal liberty. The power so entrusted is a power belonging to the people and reposed in the highest dignitary of the State. In England, the power is regarded as the royal prerogative of pardon exercised by the Sovereign, generally through the Home Secretary. It is a power which is capable of exercise on a variety of grounds, for reasons of State as well as the desire to safeguard against judicial error. It is an act of grace issuing from the Sovereign. In the United States, however, after the foundin....
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.... In U.S. v. Bens (1930) 75 Lawed 354 at p. 358, Sutherland J, observed: The judicial power and the executive power over sentences are readily distinguishable. To render judgment is a judicial function. To carry the judgment into effect is an executive function. To cut short a sentence by an act of clemency is an exercise of executive power which abridges the enforcement of the judgment but does not alter it qua a judgment. To reduce a sentence by amendment alters the terms of the judgment itself and is a judicial act as much as the imposition of the sentence in the first instance. 32. The law abovesaid thus leaves no manner of doubt that the provisions in Chapter XXXII of the Code of Criminal Procedure, 1973, which includes Section 432 are like powers under Articles 72 and 161 of the Constitution exclusively for the Executive and operate in a field which does not either affect or embrace the judicial functions of the Courts. Howsoever extended meaning the Court may intend to give to the words in Section 482 of the Code, one must always remember that any order to secure the ends of justice or to give effect to the order under the Code does not and cannot mean a superviso....