?abuse of the process of the court or other extraordinary situation excites the Court?s jurisdiction. The limitation is self-restraint, nothing more?. (Raj Kapoor case, SCC p. 48, para 10) We venture to add a further reason in support. Since Section 397 CrPC is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 CrPC 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 para 28, in Mohit in respect of inherent power of the High Court in
Section 482 CrPC does not state the law correctly. We record our respectful disagreement.
8. In our considered opinion the learned Single Judge of the High Court should have followed the law laid down by this Court in Dhariwal Tobacco Products Ltd. and other earlier cases which were cited but wrongly ignored them in preference to a judgment of that Court in Sanjay Bhandari passed by another learned Single Judge on 5-2-2009 in SB 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 and others are allowed. The impugned common order dated 2-4-2009 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 CrPC 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.In yet another case, Punjab State Warehousing Corpn. v. Shree Durga Ji Traders, (2011) 14 SCC 615, the Hon?ble Supreme Court has categorically held that the inherent power of the High Court ought to be exercised to prevent miscarriage of justice or to prevent the abuse of the process of the Court or to otherwise secure the ends of justice. The Court possesses wide discretionary powers under the Section to secure these ends. The relevant portion of the judgment is extracted hereunder:-
?9. The short question that falls for consideration is whether in the fact situation the High Court was justified in declining to exercise its jurisdiction under
Section 482 of the Code?
10. It is trite law that the inherent power of the High Court ought to be exercised to prevent miscarriage of justice or to prevent the abuse of the process of the court or to otherwise secure the ends of justice. The Court possesses wide discretionary powers under the section to secure these ends. In this behalf it would be profitable to refer to the decision of this Court in Jeffrey J. Diermeier v. State of W.B. wherein one of us (D.K. Jain, J.), speaking for the Bench, explained the scope and ambit of inherent powers of the High Court under
Section 482 of the Code as follows: (SCC p. 251, paras 20 & 22)
20. ? The section itself 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. Nevertheless, it is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction of the Court. Undoubtedly, the power possessed by the High Court under the said provision is very wide but is not unlimited. It has to be exercised sparingly, carefully and cautiously, ex debito justitiae to do real and substantial justice for which alone the court exists. It needs little emphasis that the inherent jurisdiction does not confer an arbitrary power on the High Court to act according to whim or caprice. The power exists to prevent abuse of authority and not to produce injustice.
22. In Dinesh Dutt Joshi v. State of Rajasthan, while dealing with the inherent powers of the High Court, this Court has observed thus: (SCC p. 573, para 6) ?6. ? The principle embodied in the section is based upon the maxim: quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest i.e. when the law gives anything to anyone, it gives also all those things without which the thing itself would be unavailable. The section does not confer any new power, but only declares that the High Court possesses inherent powers for the purposes specified in the section. As lacunae are sometimes found in procedural law, the section has been embodied to cover such lacunae wherever they are discovered. The use of extraordinary powers conferred upon the High Court under this section are however required to be reserved, as far as possible, for extraordinary cases.?
11. Bearing in mind the aforestated legal position in regard to the scope and width of the power of the High Court under
Section 482 of the Code, we are of the opinion that the impugned decision is clearly indefensible. As noted above, the High Court has rejected the petition under
Section 482 of the Code on the ground of availability of an alternative remedy without considering the seriousness of the nature of the offences and the fact that the trial court had dismissed the complaint on a hypertechnical ground viz. since the complainant had been appearing in person, despite the order dated 16-4-1999, exempting him from personal appearance, the said exemption order became redundant and the complainant should have sought a fresh exemption from personal appearance. We feel that such a view defies any logic. An order of exemption from personal appearance continues to be in force till it is revoked or recalled.
12. We are convinced that in the instant case, rejection of the appellant?s petition under
Section 482 of the Code has resulted in miscarriage of justice. Availability of an alternative remedy of filing an appeal is not an absolute bar in entertaining a petition under
Section 482 of the Code. As aforesaid, one of the circumstances envisaged in the said section, for exercise of jurisdiction by the High Court is to secure the ends of justice. Undoubtedly, the trial court had dismissed the complaint on a technical ground and therefore, interests of justice required the High Court to exercise its jurisdiction to set aside such an order so that the trial court could proceed with the trial on merits.?
10.In Union of India v. Mangal Textile Mills (I) (P) Ltd., (2010) 14 SCC 553, at page 556, the Hon?ble Supreme Court has categorically held that availability of an alternative remedy does not operate as an absolute bar to entertaining a writ petition but is a rule of discretion to be exercised depending on the facts of each case. The relevant portion of judgment is extracted hereunder:-
?6. The learned counsel appearing for the appellants submits that since the issues, subject-matter of the writ petition, not only involved the valuation of plant and machinery, even the question of disclosure or non-inclusion of some of the machines like stenters, etc. was also required to be gone into for determining whether the assessee was entitled to the relief claimed and these being questions of fact, the High Court erred in exercising its jurisdiction under
Article 226 of the Constitution. According to the learned counsel, since an alternative statutory remedy by way of appeal before the Customs, Excise and Service Tax Appellate Tribunal (for short ?CESTAT?) was available to the assessee, the writ petition should have been dismissed at the threshold.
7. We find substance in the contention of the learned counsel for the appellants. It is true that power of the High Court to issue prerogative writs under
Article 226 of the Constitution is plenary in nature and cannot be curtailed by other provision of the Constitution or a statute but the High Courts have imposed upon themselves certain restrictions on the exercise of such power. One of such restrictions is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction under
Article 226 of the Constitution. But again, this rule of exclusion of writ jurisdiction on account of availability of an alternative remedy does not operate as an absolute bar to entertaining a writ petition but is a rule of discretion to be exercised depending on the facts of each case.
8. On this aspect, the following observations by the Constitution Bench of this Court in Collector of Customs v. Ramchand Sobhraj Wadhwani, which still holds the field, are quite apposite: (AIR pp. 1509-10, para 10) ?10. The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre-eminently one of the discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.?
9. In Harbanslal Sahnia v. Indian Oil Corpn. Ltd.3, enumerating the contingencies in which the High Court could exercise its writ jurisdiction in spite of availability of the alternative remedy, this Court observed thus: (SCC p. 110, para 7) ?7. ? that the rule of exclusion of writ jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged.?
10. We are of the opinion that on the facts of the present case, exercise of writ jurisdiction by the High Court was unwarranted. As rightly pointed out by the learned counsel appearing on behalf of the Revenue, the controversy in the instant case centred around valuation of plant and machinery as also inclusion or non-inclusion of certain machines, in use or not or in working condition or not, which are primarily questions of fact.
11. Faced with the situation, Mr Bagaria, learned Senior Counsel appearing on behalf of the assessees, prays that the respondents may be permitted to file appeals before CESTAT against the aforenoted orders passed by the Commissioner.
12. Having regard to the facts and circumstances of the case, we are inclined to accede to the prayer made on behalf of the assessees. Accordingly, we allow the appeals; set aside the impugned orders and direct that if the assesses prefer appeals to CESTAT, within six weeks from today, the Tribunal shall entertain the appeals after condoning the delay in filing the said appeals and dispose of the same on merits in accordance with law as expeditiously as possible.?
11.The aforesaid judgments clearly declared the law that there cannot be a total ban for entertaining the petition even though there is an alternative remedy and the same has to be tested depends upon the facts of each case by the Court while hearing the petition on merits.
12.Therefore, this Court is of the considered view that to verify the veracity of the particular complaint whether the same makes out any cognizable offence or not would also come within the ambit of the inherent power of the High Court as contemplated under
Section 482 of the Code. Further, it to be borne in mind that as far as Subordinate Courts are concerned, they have not vested with any inherent power as provided to the High Court. The perspective thinking of the framing of the legislation here, the Code of Criminal Procedure, must have been for the ends of justice and to secure the ends of justice. Under these premises and with the foregoing discussions, this Court has no hesitation to hold that the inherent power as contemplated in the code must be utilized with its true spirit not for mere formality with an intention to disown the true responsibility.
13.It is well settled in the judgment of the Hon'ble Supreme Court in Lalita Kumari Vs. Government of Uttar Pradesh and others [2013 (6) CTC 353], that registration of an FIR is mandatory under
Section 154 of the Code of Criminal Procedure if an information furnished to the police officer disclose commission of a cognizable offence and in cases where the information does not disclose a cognizable offence, a preliminary enquiry has to be conducted. As such the respondent is not justified in having received the complaint and keeping it unattended without any further action. In view of the same, the petitioners are made out case for this Court to invoke its inherent powers under
Section 482 of the Criminal Procedure Code.
14.Therefore with these observations all the Criminal Original Petitions are liable to be allowed with the following directions and the same should be completed within a stipulated period of time, since in all the cases though the respondents in respective Criminal Original Petitions were received complaints, but till date it is pending without any further progress, either to register the First Information Report or conducting enquiry.
15.In the result, the respondents are directed as follows:
a) If the information received by the respondent discloses commission of a cognizable offence, then, the same shall be forthwith registered.
b) If an information received does not disclose a cognizable offence, the respondent shall conduct a preliminary inquiry to ascertain whether cognizable offence is disclosed therein or not and such inquiry shall be completed within a period of seven days from the date of information.
c) If the inquiry discloses the commission of a cognizable offence, the FIR must be registered, if not already registered or closed.
d) If the preliminary inquiry ends in closing the complaint, the disclosure report must be recorded along with the reasoning and a copy of the same shall be furnished to the complainant within one week.
e) All information relating to cognizable offences whether resulting in registration of FIR or leading an inquiry must be reflected in the general diary/station diary/daily diary of the respondent's police station.
f) The police officer cannot avoid his duty of registering offence if cognizable offence is disclosed in the complaint. On failure of taking the swift action by the police in a case where cognizable offence is clearly made out the Judicial Magistrate concerned apart from ordering direction to register the case, also recommend for taking action against erring officers who do not register the FIR if information received by him discloses a cognizable offence.
g) The Aggrieved person can also approach the superior authority or the Judicial Magistrate Court concerned for taking appropriate action against the erring officials.
16.Accordingly, all the Criminal Original Petitions are allowed with the above direction. No costs.
To
1.The Superintendent of Police, Pudukkottai District, Pudukkottai.
2.State, rep. by the Inspector of Police, Thirumayam Police Station, Pudukkottai District.
3.The Additional Public Prosecutor, Madurai Bench of Madras High Court, Madurai.
.