Prabhu Chawla v. State of Rajasthan

1. Leave granted.

2. First we take up appeals of Prabhu Chawla and Jagdish Upasane and ors. as these two criminal appeals seek to assail a common order dated 02.04.2009 whereby the High Court of Judicature for Rajasthan at Jodhpur dismissed the petitions preferred by the appellants under Section 482 of the Code of Criminal Page 2 Procedure (for brevity ‘Cr.P.C.’). High Court held the petitions to be not maintainable in view of judgment of Rajasthan High Court in the case of Sanjay Bhandari v. State of Rajasthan[1] (impugned in the other connected appeal) holding that availability of remedy under Section 397 Cr.P.C. would make a petition under Section 482 Cr.P.C. not maintainable.

3. While considering all these matters at the SLP stage, on 05.07.2013, a Division Bench found the impugned order of the High Court to be against the law stated in Dhariwal Tobacco Products Ltd. and Ors. v. State of Maharashtra and another[2]. In that case the Division Bench concurred with the proposition of law that availability of alternative remedy of criminal revision under Section 397 Cr.P.C. by itself cannot be a good ground to dismiss an application under Section 482 of Cr.P.C. But it noticed that a later Division Bench judgment of this Court in the case of Mohit alias Sonu and another v. State of Uttar Pradesh and another[3] apparently held to the contrary that when an order under assail is not interlocutory in nature and is amenable to the revisional jurisdiction of the High Court then there should be a bar in invoking the inherent jurisdiction of the High Court. In view of such conflict, these cases were directed to be placed before the Hon’ble Chief Justice for reference to a larger Bench and that is how the matters are before this Bench for resolving the conflict.

4. The facts of these appeals need not detain us because in our considered opinion the view taken by the Rajasthan High Court in the impugned order is contrary to law and therefore matters will have to be remanded back to the High Court for fresh consideration on merits within the scope of inherent powers available to the 2009 (1) CrLR (Raj.) 282

Page 3 High Court under Section 482 Cr.P.C. It would suffice to note that in both these appeals, the miscellaneous petitions before the High Court arose out of an order dated 30.11.2006 passed by learned Judicial Magistrate No. 3, Jodhpur in the complaint no. 1669 of 2006, whereby it took cognizance against the appellants under Section 228A of the Indian Penal Code and summoned them through bailable warrants to face further proceedings in the case.

5. Mr. P.K. Goswami learned senior advocate for the appellants supported the view taken by this Court in the case Dhariwal Tobacco Products Ltd. (supra). He pointed out that in paragraph 6 of this judgment Justice S. B. Sinha took note of several earlier judgments of this Court including that in R.P. Kapur v. State of Punjab[4] and Som Mittal v. Govt. of Karnataka[5] for coming to the conclusion that “only because a revision petition is maintainable, the same by itself, ………, would not constitute a bar for entertaining an application under Section 482 of the Code.” Mr. Goswami also placed strong reliance upon judgment of Krishna Iyer, J. in a Division Bench in the case of Raj Kapoor and Ors v. State and Ors[6]. Relying upon judgment of a Bench of three Judges in the case of Madhu Limaye v. The State of Maharashtra[7] and quoting therefrom, Krishna Iyer, J. in his inimitable style made the law crystal clear in paragraph 10 which runs as follows:

6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of High Court under Section 482 Cr.P.C. is unwarranted. We would simply reiterate that Section 482 begins with a non-obstante clause to state: “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.” A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. “abuse of the process of the Court or other extraordinary situation excites the court’s jurisdiction. The limitation is self-restraint, nothing more.” We venture to add a further reason in support. Since Section 397 Cr.P.C. is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 Cr.P.C. only to petty interlocutory orders! A situation wholly unwarranted and undesirable.

7. As a sequel, we are constrained to hold that the Division Bench, particularly in paragraph 28, in the case of Mohit alias Sonu and another (supra) in respect of inherent power of the High Court in Section 482 of the Cr.P.C. does not state the law correctly. We record our respectful disagreement. Page 6

8. In our considered opinion the learned Single Judge of the High Court should have followed the law laid down by this Court in the case of Dhariwal Tobacco Products Ltd. (supra) and other earlier cases which were cited but wrongly ignored them in preference to a judgment of that Court in the case of Sanjay Bhandari (supra) passed by another learned Single Judge on 05.02.2009 in S.B. Criminal Miscellaneous Petition No. 289 of 2006 which is impugned in the connected Criminal Appeal arising out of Special Leave Petition No. 4744 of 2009. As a result, both the appeals, one preferred by Prabhu Chawla and the other by Jagdish Upasane & Ors. are allowed. The impugned common order dated 02.04.2009 passed by the High Court of Rajasthan is set aside and the matters are remitted back to the High Court for fresh hearing of the petitions under Section 482 of the Cr.P.C. in the light of law explained above and for disposal in accordance with law. Since the matters have remained pending for long, the High Court is requested to hear and decide the matters expeditiously, preferably within six months.

9. The impugned order in the third appeal, dated 05.02.2009 passed by the High Court of Judicature for Rajasthan at Jodhpur has been relied upon and followed while passing the order dated 02.04.2009 impugned in the other two appeals. Since that order has been set aside while allowing those appeals hence the order impugned in this appeal also has to be set aside for the same very reasons and for the view taken by us in respect of scope and Page 7 ambit of Section 482 of the Cr.P.C. Accordingly this appeal is also allowed and impugned order is set aside with the same directions as in the other two appeals. …………………………………….J. [J. CHELAMESWAR] ……………………………………..J. [SHIVA KIRTI SINGH] ……………………………………..J. [ABHAY MANOHAR SAPRE] New Delhi. September 05, 2016.