http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: MOSTT. SIMRIKHIA

       Vs.

RESPONDENT: SMT. DOLLEY MUKHERJEE @ SMT. CHHABIMUKHERJEE & ANR.

DATE OF JUDGMENT02/03/1990

BENCH: FATHIMA BEEVI, M. (J) BENCH: FATHIMA BEEVI, M. (J) AHMADI, A.M. (J)

CITATION:  1990 AIR 1605            1990 SCR  (1) 788  1990 SCC  (2) 437        JT 1990 (3)    79  1990 SCALE  (1)455

ACT:     Code  of  Criminal Procedure,  1973:  Sections  362  and 482Inherent  power  of  High Court--To be  invoked  only  to prevent  abuse  of process of Court and to  secure  ends  of justice----Not  to override express provisions  barring  re- view.

HEADNOTE:     A  case  was instituted on a private  complaint  by  the appellant for offences under Sections 323 and 452 IPC before the  Judicial  Magistrate First Class, who  transferred  the case  to  Second Class Magistrate for  enquiry.  The  Second Class  Magistrate issued process to the  respondents,  which was challenged under Section 482 Cr.P.C., on the ground that the  First  Class Magistrate transferred  the  case  without taking  cognizance and that the subsequent proceedings  were illegal.  The High Court dismissed the petition.  Again  the respondents  approached  the High Court  under  Section  482 Cr.P.C. alleging that the case had not been taken cognizance of,  before  it was transferred. This time  the  High  Court accepted the plea and quashed the proceedings.     This  appeal,  by  special leave,  challenges  the  High Court’s  order  on the grounds that the  second  application under Section 482 Cr.P.C. ought not to have been entertained as  it  amounted to review of the earlier order and  it  was contrary to the spirit of section 362 Cr.P.C. Allowing the appeal, this Court,     HELD:  1.1 The inherent power under Section 482  Cr.P.C. is intended to prevent the abuse of the process of the Court and  to secure ends of justice. Such power cannot  be  exer- cised  to do something which is expressly barred  under  the Code. If any consideration of the facts by way of review  is not  permissible under the Code and is expressly barred,  it is  not  for  the Court to exercise its  inherent  power  to reconsider the matter and record a conflicting decision.  If there  had been change in the circumstances of the case,  it would be in order for the High Court to exercise its  inher- ent power in the prevailing circumstances and pass appropri- ate orders to secure the ends of justice or to 789 prevent  the abuse of the process of the Court. Where  there

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

is  no such changed circumstance and the decision has to  be arrived  at  on  the facts that existed as on  the  date  of earlier  order, the exercise of the power to reconsider  the same  materials  to  arrive at different  conclusion  is  in effect  a  review, which is expressly barred  under  section 362. [790F-H; 791A]     1.2  Ira matter is covered by an express letter of  law, the  court cannot give a go-by to the  statutory  provisions and  instead evolve a new provision in the garb of  inherent jurisdiction.  The inherent jurisdiction of the  High  Court cannot  be invoked to override bar of review  under  Section 362 Cr.P.C. [791E-H] Sooraj Devi v. Pyare Lal, [1981] 1 SCC 500, relied on.     Superintendent & Rememberancer of Legal Affairs v. Mohan Singh, [1975] 3 SCC 706, referred to.     2. In the instant case, there had been a definite  find- ing that the complaint was taken cognizance of by the Magis- trate  before he transferred the proceedings  under  section 192(2)  Cr.P.C. for enquiry under section 202  Cr.P.C.  This finding  has been arrived at after perusal of the record  of the proceedings before the Magistrate and on a consideration of the report of the concerned Magistrate. A reappraisal  of the facts on record to determine whether such cognizance had been  taken  in a subsequent proceeding is  not,  therefore, warranted.  It was not open to the parties to reagitate  the question by a fresh application nor was the court  empowered under section 482 to reconsider the matter. [791 B-C]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 128 of 1990.     From the Judgment and Order dated 19.8.1989 of the Patna High Court in Criminal Miscellaneous No. 2314 of 1989.     A.D.  Sikri, Ranjan Mukherjee and D. Goburdhan  for  the Appellant. R.K. Garg and A. Sharan for the Respondents. The Judgment of the Court was delivered by FATHIMA BEEVI, J. Special leave granted. 790     The legality of the order of the High Court dated  19.8. 1989 passed on an application made under section 482 Cr.P.C. is  challenged  in this appeal. In a case  instituted  on  a private  complaint by the appellant for offences under  sec- tions  452  and 323 I.P.C., the  Judicial  Magistrate  First Class,  Patna,  in exercise of power  under  section  192(2) Cr.P.C.  transferred the case for enquiry under section  202 of the Code. The Court of the Second Class Magistrate, after examining witnesses, by order dated 22.3. 1985 issued  proc- ess to the two accused, the respondents herein. The order of the  Magistrate  issuing process was challenged by  the  re- spondents under section 482 before the High Court. The  main ground urged before the High Court was that the First  Class Magistrate  had transferred the case without  taking  cogni- zance  of the offence and the subsequent  proceedings  were, therefore,  illegal.  The  High Court, by  its  order  dated 20.8.88, dismissed the petition. It was found that there was no  such illegality. The respondents again made  Crl.  Misc. Petition  2314/89 under section 482 Cr.P.C. before the  High Court alleging, inter alia, that the record of the  proceed- ings on close scrutiny would indicate that the case had  not been  taken cognizance of before the transfer.  The  learned Single  Judge  accepted  the case  of  the  respondents  and quashed the proceedings by the impugned order.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

   The  learned counsel for the appellant contended  before us that the second application under section 482 Cr.P.C. was not entertainable, the exercise of power under section  482, on a second application by the same party on the same ground virtually amounts to the review of the earlier order and  is contrary to the spirit of section 362 of the Cr.P.C. and the High  Court  was,  therefore, clearly  in  error  in  having quashed  the  proceedings by adopting that course.  We  find considerable force in the contention of the learned counsel. The inherent power under section 482 is intended to  prevent the abuse of the process of the Court and to secure ends  of justice.  Such  power cannot be exercised  to  do  something which is expressly barred under the Code. If any  considera- tion of the facts by way of review is not permissible  under the Code and is expressly barred, it is not for the Court to exercise  its  inherent power to reconsider the  matter  and record  a conflicting decision. If there had been change  in the circumstances of the case, it would be in order for  the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of  justice  or to prevent the abuse of the process  of  the Court. Where there is no such changed circumstances and  the decision  has to be arrived at on the facts that existed  as on the date of the earlier order, the exercise of the  power to reconsider the 791 same  materials  to  arrive at different  conclusion  is  in effect  a  review, which is expressly barred  under  section 362.     In  the present case, there had been a definite  finding that the complaint was taken cognizance of by the Magistrate before  he transferred the proceedings under section  192(2) for enquiry under section 202 Cr.P.C. This finding has  been arrived  at after perusal of the record of  the  proceedings before  the Magistrate and on a consideration of the  report of  the concerned Magistrate. A reappraisal of the facts  on record  to determine whether such cognizance had been  taken of in a subsequent proceeding is not, therefore,  warranted. The  only ground on which relief was claimed is the  alleged irregularity in the transfer of the proceedings. It was  not open  to  the parties to reagitate the question by  a  fresh application nor was the court empowered under section 482 to reconsider the matter.     Section 362 of the Code expressly provides that no court when it has signed its judgment or final order disposing  of a  case, shall alter or review the same except to correct  a clerical or arithmetical error save as otherwise provided by the  Code. Section 482 enables the High Court to  make  such order as may be necessary to give effect to any order  under the Code or to prevent abuse of the process of any Court  or otherwise  to secure the ends of justice. The inherent  pow- ers, however, as much are controlled by principle and prece- dent  as are its express powers by statute. If a  matter  is covered by an express letter of law, the court cannot give a go-by  to the statutory provisions and instead evolve a  new provision in the garb of inherent jurisdiction.     In  Superintendent  & Remembrancer of Legal  Affairs  v. Mohan Singh, [1975] 3 SCC 706, this Court held that  section 561A preserves the inherent power of the High Court to  make such orders as it deemed fit to prevent abuse of the process of  the Court or to secure the ends of justice and the  High Court  must  therefore exercise its inherent  powers  having regard  to the situation prevailing at the particular  point of  time  when  its inherent jurisdiction is  sought  to  be invoked. In that case the facts and circumstances  obtaining

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

at  the  time  of the subsequent  application  were  clearly different  from  what they were at the time of  the  earlier application.  The question as to the scope and ambit of  the inherent power of the High Court vis-a-vis an earlier  order made by it was, therefore, not concluded by this decision.     The  inherent jurisdiction of the High Court  cannot  be invoked  to override bar of review under section 362. It  is clearly stated in Sooraj 792 Devi v. Pyare Lal, [1981] 1 SCC 500 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 reviewing 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. We  allow  the appeal and set aside the order  of  the  High Court. G.N.                                                  Appeal allowed. 793