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PETITIONER: ARUN SHANKAR SHUKLA

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH & ORS.

DATE OF JUDGMENT:       23/07/1999

BENCH: K.T.Thomas, M.B.Shah

JUDGMENT:

Shah, J.

       Leave granted.

     It  appears  that  unfortunately  the  High  Court  by exercising  its  inherent jurisdiction under Section 482  of the  Criminal  Procedure  Code (for short  the  Code)  has prevented  the flow of justice on the alleged contention  of the  convicted  accused  that it was polluted by  so  called misconduct  of the judicial officer.  It is true that  under Section  482 of the Code, the High Court has inherent powers 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. But  the  expressions abuse of the process of law  or  to secure  the  ends  of  justice   do  not  confer  unlimited jurisdiction  on the High Court and the alleged abuse of the process  of law or the ends of justice could only be secured in  accordance  with  law including procedural law  and  not otherwise.   Further,  inherent powers are in the nature  of extraordinary  powers to be used sparingly for achieving the object  mentioned in Section 482 of the Code in cases  where there  is no express provision empowering the High Court  to achieve  the  said  object.  It is well neigh  settled  that inherent power is not to be invoked in respect of any matter covered  by  specific  provisions  of the  Code  or  if  its exercise  would infringe any specific provision of the Code. In  the  present  case,  the   High  Court  overlooked   the procedural  law  which  empowered the convicted  accused  to prefer  statutory appeal against conviction of the  offence. High  Court  has  intervened at an uncalled  for  stage  and soft-pedaled  the course of justice at a very crucial  stage of the trial.

     In  the present case, accused-respondents were charged for the offences punishable under Sections 148, 302, 149 and also under Section 307/149 of the IPC for the incident which took  place  at about 1.30 P.M.  on 26th July, 1981  at  the village in Jhahirpur District, Lucknow.  It appears that for one  or the other reason, the trial dragged on till the  end of  November  1997.   The  proceedings  as  minuted  by  the Sessions   Judge  show  that  on  20.11.1997  judgment   was pronounced convicting Ram Gopal Misra, Ram Naresh and Radhey Sham  Mishra under Section 302 and 307 read with Section 149

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of  IPC.  Accused Ram Gopal Misra was absent, but the  other two  accused went outside the court and did not return.   So the case was posted to the succeeding days and since none of the   accused   turned  up   the  sessions   court   ordered non-bailable warrants of arrest to be issued against them on 25.11.1997.

     Instead  of  appearing  before  the  trial  court  the accused filed a petition under Section 482 of the Code which was  numbered  as Criminal Miscellanous Case No.743 of  1997 before  the  Lucknow Bench of the High Court  of  Allahabad. The  matter was placed before Virendra Saran J.  The learned judge  called  for  the  comments   of  the  Sessions  Judge concerned.   The  court also directed the Sessions Judge  to send  the  record including the shorthand book in  a  sealed cover.   Thereafter  on  6th January, 1998  the  High  Court stayed  the  execution of warrants of arrest issued  against the accused.  It appears that from 6th January, 1998 to 29th January,   1999   the  High   Court  posted   the   Criminal Miscellaneous  Case  to a large number of days for  hearing, but  unfortunately on every such day the hearing was  merely adjourned,  with  a  direction   that  interim  order  shall continue.

     From  the  facts  stated  above,   it  is  seen   that Additional  Sessions Judge pronounced judgment dated  20-11- 1997  convicting the accused-respondents and as the  accused were  required to be heard on the question of sentence,  the matter  was  kept on 21st, 22nd and 25th of November,  1997. But  as the accused failed to appear, the trial judge issued non-bailable warrants returnable by 2nd December, 1997.

     When   the   informant-injured    witness   moved   an application  in the High Court for modification of the order dated  9th  December,  1997  that  was  placed  before  I.P. Vashishth, J.  who observed that it was contended by counsel for  the  private  respondent   that  since  the  convicting judgment  was already pronounced by the trial court and  the matter  was  fixed for hearing, the petition was  no  longer maintainable, however, as the application seeks modification of  the  Order,  the same may be placed before  the  Honble Judge  whose  order is sought to be  modified.   Thereafter, Virendra  Saran,  J.  on 6-1-1998 directed the matter to  be placed  before  the appropriate bench on 20th January,  1998 and  till that date the execution of the warrants of  arrest and the process issued under Section 82 and 83 CR.P.C.  were stayed.   From  that date onwards, the matter was  adjourned for one or the other reason, as stated above.

     The  informant-injured  witness filed this  appeal  by Special  Leave  and  contended  that the  accused  who  were convicted  of  the  offence of murder of  two  persons  have succeeded  in  evading  the  arrest till that  date  and  it amounts  to  abuse  of  the process of  the  Court  and  the judicial  system.  It was submitted that accused have misled the  High  Court  by  their  misrepresentations  and  having obtained  an interim order of stay of arrest, accused on one pretext  or the other, succeeded in getting adjournments and thus  delayed  hearing  of the matter.  It  was,  therefore, prayed  that the proceedings in the High Court be quashed or the  High  Court be directed to dispose of  the  application under  Section 482 filed by the accused.  On 1st April, 1999 this Court has directed as under:-

     Issue  notice.   The order passed by the  High  Court

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staying  the arrest of respondent Nos.2,3 & 4 in  connection with  their  conviction under Section 302/34 IPC is  put  in abeyance.   In other words, the said respondents are  liable to  surrender or it is open to the authority to put them  in prison.

     On  12th  May,  1999  we  directed  that  all  further proceedings  in  the Criminal Miscellaneous Case  No.743  of 1997  of  the Allahabad High Court, Lucknow Bench be  stayed until further orders from this Court.

     In  our  view,  the  order passed by  the  High  Court entertaining  the  petition of the convicted  accused  under Section  482  of  the Code is, on the face of  it,  illegal, erroneous  and to say the least, unfortunate.  It was  known to the High Court that the trial court passed proceedings to the  effect  that  final judgment and order  convicting  the accused  were  pronounced by the trial court.  It  was  also recorded by the trial court that as the accused were absent, the  court  had  issued non-bailable warrants.   In  such  a situation,  instead  of  directing  the  accused  to  remain present  before  the  Court  for   resorting  to  the  steps contemplated  by the law for passing the sentence, the  High Court has stayed further proceedings including the operation of  the non-bailable warrants issued by the trial court.  It is  disquieting  that  the  High Court  has  overlooked  the important  legal aspect that accused have a right of  appeal against  the  order  of conviction purported  to  have  been passed  by the trial court.  In such circumstances the  High Court ought not to have entertained a petition under Section 482  of  the  Code  and  stonewalled  the  very  efficacious alternative  remedy  of  appeal  as provided  in  the  Code. Merely  because the accused made certain allegations against the trial judge the substantive law cannot be bypassed.

     In this view of the matter, this appeal is allowed and the order passed by the High Court entertaining the petition under  Section  482  and  the other  interim  orders  passed thereunder  are  quashed.   The learned  Sessions  Judge  is directed to hear the accused on the question of sentence and pass  appropriate  orders according to law.  Till  then  the accused  shall remain in jail.  This appeal stands  disposed of accordingly.

     We  make it clear that it is open to the High Court to consider  all  the contentions which the accused  may  raise against  the said conviction either in the appeal which they may  file,  or administratively, untrammeled by any  of  the observations made by us in the judgment.