REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELALTE JURISDICTION

CRIMINAL APPEAL NO.  2055    OF 2007 (Arising out of SLP (Crl.) No. 2272 of 2007)

Dhariwal Tobaco Products Ltd. and others …. Appellants

Versus

Sate of Maharashtra and another …. Respondents

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Whether an application under Section 482 of the Code of Criminal

Procedure,  1973,  (for  short  ‘the  Code’)  can  be  dismissed  only  on  the

premise that  an  alternative  remedy of  filing  a  revision  application  under

Section 397 of the Code is available, is the question involved herein.  

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3. First  Appellant is  a company incorporated and registered under the

Companies  Act,  1956  and  is  engaged  in  the  business  of  manufacturing

Gutkha.  Appellant Nos. 2 and 3 are the Chairman and Managing Director

of the company.   It is said to be a large organization.  It has multi-locational

manufacturing  units  and  each  of  them  is  said  to  be  headed  by  senior

officials  of  the  company,  who  were  responsible  for  the  conduct  of  its

business.   Inter  alia  on  the  premise  that  the  samples  collected  from the

manufacturing unit of appellants at Solapur were found to be adulterated in

terms of Rule 62(1) of the Prevention of Food Adulteration Rules, 1955 (in

short ‘1955 Rules) providing for restriction on the use of anti-caking agents,

a criminal complaint was filed in the Court of the Judicial Magistrate, First

Class at Akkalkot, Solapur.  Cognizance was taken thereof and summons

were issued to the appellants.   

4. They filed an application under Section 482 of the Code, which by

reason of the impugned judgment and order dated 21st December, 2006 has

been dismissed, stating :-

“2. The  jurisdiction  under  section  482  of  the said Code has to be exercised sparingly and only in exceptional cases.  As held by this Court in the case  of  V.K.  Jain  and  others  (Supra)  the

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jurisdiction  under  section  482  of  the  said  Code will not be exercised if recourse can be taken by the Applicants to the remedy of filing a Revision Application under Section 397 of the  said Code. In  this  view  of  the  matter,  the  Application  is rejected.   Notwithstanding  the  rejection  of  this Application, it will be open for the Applicants to take  out  appropriate  proceedings  before  the appropriate  court.   All  contentions  on merits  are kept open.”  

5. By an order dated 30th April,  2007 a limited notice was issued.  It

reads :-

“ Issue  notice  limited  to  the  question  as  to whether  the  matter  should  be  directed  to  be considered  afresh  by the  High  Court  keeping  in view the  fact  that  other  matters  wherein  similar contentions  have been raised  are pending before the High Court.  

Dasti service, in addition is permitted.

Liberty  to  mention  after  service  is complete.”

6. Mr.  Siddhartha  Dave,  learned  counsel  appearing  on  behalf  of

appellants  would  urge  that  the  High  Court  committed  a  serious  error  in

rejecting the application filed by appellants under Section 482 of the Code

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without  entering  into  the  merit  of  the  matter.  It  was  urged  that  reliance

placed by the High Court on its earlier judgment in V.K. Jain and others  v.

Pratap  V. Padode and another,  [2005 (30)  Mh.L.J.  778] rendered  by the

learned Single Judge of that Court is contrary to various other decisions of

the same Court inter alia in Vishwanaath Ramkrishna Patil and another  v.

Ashok Murlidhar  Sonar and another,  [  2006 (5)  Mh.L.J.  671 ] and  Keki

Bomi Dadiseth and others  v.   State  of  Maharashtra,  [  2002 (3)  Mh.L.J.

246].   

7. Ms.  Madhavi  Diwan,  learned  counsel  appearing  on  behalf  of  the

respondents, on the other hand, contended that having regard to the conduct

of appellants, this Court should not exercise its extra-ordinary jurisdiction

under Article 136 of the Constitution of India, particularly when the power

under  Section  482  of  the  Code  should  not  be  used  mechanically  or

routinely.  

8. Indisputably issuance of summons is not an interlocutory order within

the meaning of Section 397 of the Code.  This Court in a large number of

decisions beginning from  R.P.        Kapur   v. State of Punjab, AIR 1960 SC 866

to Som Mittal  v. Govt. of Karnataka , [ (2008) 3 SCC 574 ] has laid down

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the  criterion  for  entertaining  an  application  under  Section  482.   Only

because  a  revision  petition  is  maintainable,  the  same  by  itself,  in  our

considered  opinion,  would  not  constitute  a  bar  for  entertaining  an

application under Section 482 of the Code.  

Even  where  a  revision  application  is  barred,  as  for  example  the

remedy by way of Section 115 of the Code of Civil Procedure, 1908 this

Court has held that the remedies under Articles 226/227 of the Constitution

of India would be available. (See Surya Dev Rai  v.  Ram Chander Rai and

others, [ (2003) 6 SCC 675 ] ).

. Even in cases where a second revision before the High Court after

dismissal of the first one by the Court of Sessions is barred under Section

397 (2) of the Code, the inherent power of the Court has been held to be

available.   

9. The power of the High Court can be exercised not only in terms of

Section 482 of the Code but also in terms of Section 483 thereof.  The said

provision reads thus :-

“483. Duty of High Court to exercise continuous superintendence  over  Courts  of  Judicial

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Magistrates:-  Every High Court  shall  so exercise its  superintendence  over  the  Courts  of  Judicial Magistrates subordinate to it as to ensure that there is an expeditious and proper disposal of cases by such Magistrates.”

10. Inherent power of the High Court is not conferred by statute but has

merely been  saved  thereunder.   It  is,  thus,  difficult  to  conceive  that  the

jurisdiction of the High Court would be held to be barred only because the

revisional jurisdiction could also be availed of.

(See  Krishnan and another  v.  Krishnaveni and another, [ (1997) 4

SCC 241 ] ).    

In fact in  Adalat Prasad  v.  Rooplal Jindal and others, [ (2004) (7)

SCC 338) ] to which reference has been made by the learned Single Judge

of the Bombay High Court in  V.K. Jain and others (supra) this Court has

clearly opined that when a process is issued, the provisions of Section 482

of the Code can be resorted to.  

11. It may be true, as has been noticed by the High Court that thereunder

availability of appellate or revisional jurisdiction of the High Court did not

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fall  for  its  consideration  but  in  our  considered  opinion  it  is  wholly

preposterous  to  hold that  Adalaat  Prasad  (supra),  so  far as  it  related  to

invoking the inherent jurisdiction of the High Court is concerned, did not

lay down good law.  The High Court in saying so did not only read the said

judgment in its proper perspective; it misdirected itself in saying so as it did

not pose unto itself a correct question.  

In Amar Nath and others  v.  State of Haryana and others,  [ AIR 1977

SC 2185 ] it was opined :-  

“….It was only with the passing of the impugned order that the proceedings started and the question of the appellants being put up for trial arose for the first time. This was undoubtedly a valuable right which  the  appellants  possessed  and  which  was being  denied  to  them by the  impugned  order.  It cannot, therefore, be said that the appellants were not  at  all  prejudiced,  or  that  any right  of  their’s was  not  involved  by  the  impugned  order.  It  is difficult  to  hold  that  the  impugned  order summoning  the  appellants  straightaway  was merely an interlocutory order which could not be revised by the High Court under sub-sections (1) and  (2)  of  Section  397  of  the  1973  Code.  The order  of  the  Judicial  Magistrate  summoning  the appellants in the circumstances of the present case, particularly having regard to what  had preceded, was  undoubtedly  a  matter  of  moment,  and  a valuable  right  of  the  appellants  had  been  taken away by the Magistrate in passing an order prima facie in sheer mechanical fashion without applying his mind. We are, therefore, satisfied that the order impugned was one which was a matter of moment and  which  did  involve  a  decision  regarding  the rights of the appellants. If the appellants were not summoned,  then  they  could  not  have  faced  the

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trial at all, but by compelling the appellants to face a trial without proper application of mind cannot be  held  to  be  an  interlocutory  matter  but  one which decided a serious question as to the rights of the appellants to be put on trial.”

12. We may notice that in G. Sagar Suri  v.  State of U.P., [ (2000) 2 SCC

636 ] this Court has held :-  

“7. It was submitted by Mr Lalit, learned counsel for the second respondent that the appellants have already  filed  an  application  in  the  Court  of Additional Judicial Magistrate for their discharge and  that  this  Court  should  not  interfere  in  the criminal  proceedings  which  are  at  the  threshold. We do not think that on filing of any application for discharge, the High Court cannot exercise its jurisdiction under Section 482 of the Code. In this connection,  reference  may  be  made  to  two decisions  of  this  Court  in  Pepsi  Foods  Ltd. v. Special Judicial Magistrate and Ashok Chaturvedi v.  Shitul  H.  Chanchani wherein  it  has  been specifically held that though the Magistrate trying a case has jurisdiction to discharge the accused at any stage of the trial if he considers the charge to be  groundless  but  that  does  not  mean  that  the accused  cannot  approach  the  High  Court  under Section  482  of  the  Code  or  Article  227  of  the Constitution  to  have  the  proceeding  quashed against them when no offence has been made out against them and still why must they undergo the agony of a criminal trial.

8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter  superficially.  It  is  to  be  seen  if  a  matter, which  is  essentially  of  a  civil  nature,  has  been given  a  cloak  of  criminal  offence.  Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid  certain  principles  on  the basis  of  which  the High  Court  is  to  exercise  its  jurisdiction  under

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Section  482 of  the Code.  Jurisdiction  under  this section has to be exercised to prevent abuse of the process  of  any  court  or  otherwise  to  secure  the ends of justice.”

This Court therein noticed a large number of decisions to opine that

whenever  the  High  Court  comes  to  the  conclusion  that  allowing  the

proceeding to continue would be an abuse of the process of court and that

the ends of justice require that the proceedings should be quashed, it would

not hesitate to do so.   

13. We may furthermore notice that in Central Bureau of Investigation  v.

Ravi Shankar Srivastava, [ (2006) 7 SCC 188 ] this Court while opining that

the High Court in  exercise of its jurisdiction under Section 482 of the Code

does not function either as a court of appeal or revision, held :-   

“7. Exercise  of  power  under  Section  482  of  the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers  on  the  High  Court.  It  only  saves  the inherent power which the Court possessed before the  enactment  of  the  Code.  It  envisages  three circumstances  under  which  the  inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable  to  lay  down  any  inflexible  rule  which would govern the exercise of inherent jurisdiction. No legislative  enactment  dealing  with  procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from  express  provisions  of  law  which  are necessary  for  proper  discharge  of  functions  and

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duties  imposed  upon  them  by  law.  That  is  the doctrine  which  finds  expression  in  the  section which  merely  recognises  and  preserves  inherent powers  of  the  High  Courts.  All  courts,  whether civil  or  criminal  possess,  in  the  absence  of  any express provision, as inherent in their constitution, all  such powers  as  are necessary to  do the  right and  to  undo  a  wrong  in  the  course  of administration of justice on the principle “quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest” (when the law gives a person anything it gives him that without which  it  cannot  exist).  While  exercising  powers under the section, the court does not function as a court  of  appeal  or  revision.  Inherent  jurisdiction under the section though wide has to be exercised sparingly,  carefully  and  with  caution  and  only when  such  exercise  is  justified  by  the  tests specifically laid down in the section itself. It is to be  exercised  ex  debito  justitiae  to  do  real  and substantial justice for the administration of which alone the courts exist. Authority of the court exists for  advancement  of justice  and if  any attempt is made  to  abuse  that  authority  so  as  to  produce injustice, the court has power to prevent abuse. It would be an abuse of the process of the court to allow any action which  would result  in  injustice and prevent  promotion  of  justice.  In  exercise  of the powers the court  would be justified to quash any  proceeding  if  it  finds  that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may  examine  the  question  of  fact.  When  a complaint is sought to be quashed, it is permissible to  look  into  the  materials  to  assess  what  the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.”

14. It is interesting to note that the Bombay High Court itself has taken a

different  view.   In  a decision  rendered  by the  Aurangabad Bench of  the

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Bombay High  Court,  a  learned  Single  Judge  in  Vishwanath  Ramkrishna

Patil (supra), where a similar question was raised, opined as under :-   

“It  is  difficult  to  curtail  this  remedy  merely because there is a revisional remedy available. The alternate remedy is no bar to invoke power under Article 227.  What is  required as to see the facts and circumstances of the  case while  entertaining such petition under Article 227 of the Constitution and/or  under  Section  482  of  Criminal  Procedure Code.  The  view  therefore,  as  taken  in  both  the cases V.K. Jain and Saket Gore, no way expressed total bar. If no case is made out by the petitioner or the  party  to  invoke  the  inherent  power  as contemplated  under  Section  482  of  Criminal Procedure  Code  and/or  the  discretionary  or  the supervisory  power  under  Article  227  of  the Constitution  of  India  they  may  approach  to  the revisional Court,  against the order of issuance of process.

11.  Taking  into  consideration  the  facts  and circumstances  of  those  cases,  the  learned  Judge has observed in V.K. Jain and Saket Gore (supra) that it would be appropriate for the parties to file revision application against the order of issuance of  process.  There  is  nothing  mentioned  and/or even observed that there is total bar to file petition under  Section  482  of  Criminal  Procedure  Code and/or  petition  under  Article  227  of  the Constitution of India.

12.  The  Apex  Court's  decision  already  referred above, nowhere prohibited or expressly barred to invoke Section 482 of Criminal Procedure Code or Article 227 of the Constitution of India against the order of issuance of process.”

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In  Keki Bomi Dadiseth (supra), another learned Single Judge of the

Nagpur Bench of the Bombay High Court entertained an application under

Section 482 of the Code, where summons have been served for commission

of offence under the Prevention of Food Adulteration Act, 1954, holding:-

“33.  In view of the ratio laid down by the Apex Court in the above referred cases, it is well settled that  inherent  power  under  Section  482  can  be invoked  by  the  accused  in  the  appropriate  case irrespective  of  other  factors  and  this  Court  can exercise  the  same  in  a  deserving  case  within parametres of law and, therefore, the contentions canvassed  by  the  learned  Additional  Public Prosecutor  in  this  regard  are  misconceived  and same are rejected.”

15. In our considered opinion V.K. Jain (supra) does not lay down a good

law.  It is over-ruled accordingly.

16. For  the  reasons  aforementioned  the  impugned  judgment  cannot  be

sustained which is  set  aside accordingly.   The High Court  is  directed to

consider the matter afresh on merits.   The appeal is allowed.   

……………………….J.

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      [ S.B. Sinha ]

……………………….J.      [ Cyriac Joseph ]

New Delhi December 17, 2008

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