Hon'ble Saurabh Lavania,J.
(Per - Rajan Roy, J.) Heard.
This is an application under Section 482 Cr.P.C. filed by the applicant challenging the entire proceedings with respect to the applicant/ accused pending before the court of Special Judge, Gangsters Act, Lucknow bearing Sessions Trial No. 199 of 2000 ( State of U.P. Versus Mukhtar Ansari) in Case Crime No. 428 of 1999, Police Station Hazratganj, District Lucknow.
This case has been placed before this Division Bench in view of a reference made by a learned Single Judge of this Court vide his order dated 12.12.2017 which reads as under:-
"Supplementary affidavit filed on behalf of the applicant is taken on record.
Heard counsel for the parties.
In continuation of Court's order dated 09.05.2017, it is hereby observed that applicant was required to show whether final report submitted by the police against the accused has been accepted by the Court or not. Vide annexure SA-2 there is prima-facie evidence that the final report submitted by the police has been accepted by the Court. Five cases shown to be registered against the present applicant. In four of them he has been acquitted and in one, final report submitted by the police, has been accepted.
Perusal of the order dated 14.06.2000 indicates that cognizance was taken in the year 2000, charge was framed on 27.08.2008 vide annexure 5 out of 19 witnesses 18 have been cross examined. The question is whether at this stage accused/applicant is entitled to move application under Section 482 Cr.P.C. During arguments, learned counsel for the applicant has referred annexure 7 to annexure 12 to show that similar applications under Section 482 Cr.P.C. moved on behalf of co-accused have been allowed by this Court. From annexure 7 to 10, the order have been passed on concession by learned AGA. However, orders annexure 11 and 12 have been passed even though on behalf of the State quashing of charge sheets was vehemently opposed. In both these cases, learned Single Judge has opined that when in all the 4 cases shown in the Gang Chart, the applicant has been acquitted, prosecution of the applicant under Gangster Act should not be continued. Thereafter he has quashed proceedings of Sessions Trial No.199 of 2000, under Section 2/3 UP Gangster Act going on against co-accused Ram Kumar Singh and Akhtar Husain alias Sarju.
In my opinion after framing of charge without supervening development in the form of judicial order, interference with the proceedings of the trial under Section 482 Cr.P.C. may not be permissible because prayer for quashing the entire proceeding initiated on charge sheet cannot be question as the trial court has already held by a judicial order passed under Section 228 Cr.P.C. that primafacie commission of offences is made out. Now without questioning the correctness of that order allowing an application for quashing of proceeding would amount to falsifying the record of that court where order directing charge to be framed stand unchallenged. In the present case, there is also legal hurdle invoking power under Section 482 Cr.P.C. due to provisions contained in Section 232 Cr.P.C. a remedy available to the applicant under Code of Criminal Procedure. Therefore, he cannot be prayed for invoking inherent jurisdiction of this Court.
Keeping in view the judicial discipline, I think this matter should be heard by a Larger Bench to decide as to whether after framing of charge and where substantial part of prosecution evidence has been adduced, an application under Section 482 Cr.P.C. for quashing entire proceedings of that Session Trial on the behest of the accused specially in Sessions Trial would be maintainable or not.
Office is directed to put up this matter before the Hon'ble Chief Justice/Hon'ble Senior Judge for nomination.
Till the next date of listing, proceedings of aforesaid Session Trial shall remain stayed against the present applicant. "
The applicant alongwith 24 others has been prosecuted under Section 2/3 of the U.P. Gangster and Anti Social Activities (Prevention) Act, 1986. A charge-sheet dated 14.06.2005 under the said Act, was filed by the Police, cognizance of which was taken by the court below sometime in 2000. The Sessions Court framed the charges on 27.08.2002. The said proceedings were not challenged initially as according to the Counsel for the applicant the cause did not arise earlier.
It is only when in four criminal cases out of the five criminal cases mentioned in the Gang Chart, the applicant was acquitted and a final report which was submitted in respect to Case Crime No. 390 of 1998 was allegedly accepted, that he filed this application under Section 482 Cr.P.C. before the High Court on 06.05.2017.
Initially the learned Single Judge expressed a prima-facie opinion that the proceedings relating to the Sessions Trial in question could not be quashed as out of the five cases in one case final report, though it has been submitted, had not been accepted. Thereafter, the matter came up before a Co-ordinate Bench of this Court on 12.12.2017, when the aforesaid reference order was passed. The learned Single Judge referring to Annexure S.A.-2 to the supplementary affidavit which is a Questionnaire and not an order of the court below expressed a prima-facie opinion that there is prima-facie evidence that final report submitted by the police has been accepted by the Court in the 5th criminal case also. The learned Single Judge has noticed that cognizance of the charge-sheet which was filed in Sessions Trial in question was taken in 2000. Charge was framed on 27.08.2008 and 18 out of 19 witnesses had been examined. Then he posed a question as to whether at this stage accused/applicant is entitled to move an application under Section 482 Cr.P.C.? He has then noticed the argument advanced on behalf of the applicant with reference to certain documents on record that similar application under Section 482 Cr.P.C. moved by the co-accused had been allowed by this Court. The learned Single Judge then noticed the opposition on behalf of the State in quashing the charge-sheets in those proceedings.
He has then expressed a prima-facie opinion that after framing of charge without supervening development in the form of judicial order, interference with the proceedings of the Trial under Section 482 Cr.P.C. may not be permissible because prayer for quashing the entire proceedings initiated on charge-sheet cannot be questioned as the Trial Court has already held by judicial order passed under Section 228 Cr.P.C. that prima-facie commission of offences is made out. The learned Single Judge has then observed that without questioning the correctness of that order, allowing an application for quashing of proceedings would amount to falsifying the records of the Court where order directing charge to be framed stands unchallenged.
The learned Single Judge has then observed that there is a legal hurdle by virtue of Section 232 Cr.P.C. which provides a remedy to the applicant, in entertaining this application under Section 482 Cr.P.C.
He has for all these reasons referred the matter to be considered by a larger Bench.
It is against this backdrop that the matter has been placed before us.
The High Court has inherent powers in criminal matters not by virtue of Section 482 Cr.P.C. but because the powers inherent in High Court, as a superior Court of record by virtue of Article 215 of the Constitution of India and as it is a protector of fundamental rights of citizens. Section 482 Cr.P.C. merely makes explicit what is otherwise inherent in the High Court. Nevertheless, when we see the provision contained in Section 482 Cr.P.C. it says, "nothing in this Court shall be deemed to limit or effect the inherent powers of the High Court to make such orders, as may be necessary to give effect to any order under this Court, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice". Thus, the said provision merely clarifies that the provisions of Criminal Procedure Code shall not in any way limit or effect the inherent powers of the High Court.
Inherent powers of the High Court can be exercised to- (i) make such orders as may be necessary to give effect to any order under this Code, (ii) to prevent abuse of the process of any Court (iii) otherwise to secure the ends of justice.
The scope of inherent powers, the circumstances and manner in which they are to be exercised is no longer res-integera as it has been dealt with in a catena of decisions of Hon'ble Supreme Court of India as also this Court. We do not wish to burden our judgment by citing a number of precedents on this issue, suffice it to say that in a recent decision of the Hon'ble Supreme Court of India Ahmed Ali Quraishi Versus State of U.P. And Others reported in AIR 2020 SCC 788 the law in this regard has been discussed and explained at length. We may fruitfully refer paragraph nos. 10 to 16 of the said report, which are as under:-
"10. Before we enter into facts of the present case and submissions made by the learned counsel for the parties, it is necessary to look into the scope and ambit of inherent jurisdiction which is exercised by the High Court under Section 482 CrPC. This Court had the occasion to consider the scope and jurisdiction of Section 482 CrPC. This Court in State of Haryana v. Bhajan Lal[State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , had elaborately considered the scope and ambit of Section 482 CrPC/Article 226 of the Constitution in the context of quashing the criminal proceedings. In para 102, this Court enumerated seven categories of cases where power can be exercised under Article 226 of the Constitution/Section 482 CrPC by the High Court for quashing the criminal proceedings. Para 102 is as follows:-
"102. In the backdrop of the interpretation of the various relevant provisions of the Code under Chapter XIV and of the principles of law enunciated by this Court in a series of decisions relating to the exercise of the extraordinary power under Article 226 or the inherent powers under Section 482 of the Code which we have extracted and reproduced above, we give the following categories of cases by way of illustration wherein such power could be exercised either to prevent abuse of the process of any court or otherwise to secure the ends of justice, though it may not be possible to lay down any precise, clearly defined and sufficiently channelised and inflexible guidelines or rigid formulae and to give an exhaustive list of myriad kinds of cases wherein such power should be exercised.
(1) Where the allegations made in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety do not prima facie constitute any offence or make out a case against the accused.
(2) Where the allegations in the first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence, justifying an investigation by police officers under Section 156(1) of the Code except under an order of a Magistrate within the purview of Section 155(2) of the Code.
(3) Where the uncontroverted allegations made in the FIR or complaint and the evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.
(4) Where, the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under Section 155(2) of the Code.
(5) Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
(6) Where there is an express legal bar engrafted in any of the provisions of the Code or the Act concerned (under which a criminal proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the Code or the Act concerned, providing efficacious redress for the grievance of the aggrieved party.
(7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge."
11. This Court in Vineet Kumar v. State of U.P. [Vineet Kumar v. State of U.P., (2017) 13 SCC 369 : (2017) 4 SCC (Cri) 633] , had considered the jurisdiction of the High Court under Section 482 CrPC. In the above case also, the Additional Civil Judicial Magistrate had summoned the accused for offences under Sections 452, 376 and 323 IPC and the criminal revision against the said order was dismissed by the District Judge.
12. This Court time and again has examined the scope of jurisdiction of the High Court under Section 482 CrPC and laid down several principles which govern the exercise of jurisdiction of the High Court under Section 482 CrPC. A three-Judge Bench of this Court in State of Karnataka v. L. Muniswamy[State of Karnataka v. L. Muniswamy, (1977) 2 SCC 699 : 1977 SCC (Cri) 404] , held that the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. In para 7 of the judgment, the following has been stated: (SCC p. 703) "7. ... In the exercise of this wholesome power, the High Court is entitled to quash a proceeding if it comes to the conclusion that allowing the proceeding to continue would be an abuse of the process of the court or that the ends of justice require that the proceeding ought to be quashed. The saving of the High Court's inherent powers, both in civil and criminal matters, is designed to achieve a salutary public purpose which is that a court proceeding ought not to be permitted to degenerate into a weapon of harassment or persecution. In a criminal case, the veiled object behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceeding in the interest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administered according to laws made by the legislature. The compelling necessity for making these observations is that without a proper realisation of the object and purpose of the provision which seeks to save the inherent powers of the High Court to do justice, between the State and its subjects, it would be impossible to appreciate the width and contours of that salient jurisdiction."
13. A three-Judge Bench in State of Karnataka v. M. Devendrappa [State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri) 539] , had the occasion to consider the ambit of Section 482 CrPC. By analysing the scope of Section 482 CrPC, this Court laid down that 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 further held that 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. The following was laid down in para 6: (SCC p. 94) "6. ... 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 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 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 process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers 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. Further in para 8 the following was stated: (Devendrappa case [State of Karnataka v. M. Devendrappa, (2002) 3 SCC 89 : 2002 SCC (Cri) 539] , SCC p. 95) "8. ... Judicial process should not be an instrument of oppression, or, needless harassment. Court should be circumspect and judicious in exercising discretion and should take all relevant facts and circumstances into consideration before issuing process, lest it would be an instrument in the hands of a private complainant to unleash vendetta to harass any person needlessly. At the same time the section is not an instrument handed over to an accused to short-circuit a prosecution and bring about its sudden death. The scope of exercise of power under Section 482 of the Code and the categories of cases where the High Court may exercise its power under it relating to cognizable offences to prevent abuse of process of any court or otherwise to secure the ends of justice were set out in some detail by this Court in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] ."
15. In Sunder Babu v. State of T.N. [Sunder Babu v. State of T.N., (2009) 14 SCC 244 : (2010) 1 SCC (Cri) 1349] , this Court was considering the challenge to the order of the Madras High Court where application was under Section 482 CrPC to quash criminal proceedings under Section 498-A IPC and Section 4 of the Dowry Prohibition Act, 1961. It was contended before this Court that the complaint filed was nothing but an abuse of the process of law and allegations were unfounded. The prosecuting agency contested the petition filed under Section 482 CrPC taking the stand that a bare perusal of the complaint discloses commission of alleged offences and, therefore, it is not a case which needed to be allowed. The High Court accepted the case of the prosecution and dismissed the application. This Court referred to the judgment in Bhajan Lal case [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] and held that the case fell within Category 7. The Supreme Court relying on Category 7 has held that the application under Section 482 deserved to be allowed and it quashed the proceedings.
16. After considering the earlier several judgments of this Court including the case of State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , in Vineet Kumar [Vineet Kumar v. State of U.P., (2017) 13 SCC 369 : (2017) 4 SCC (Cri) 633] , this Court laid down following in para 41: (Vineet Kumar case [Vineet Kumar v.State of U.P., (2017) 13 SCC 369 : (2017) 4 SCC (Cri) 633] , SCC p. 387) "41. Inherent power given to the High Court under Section 482 CrPC is with the purpose and object of advancement of justice. In case solemn process of Court is sought to be abused by a person with some oblique motive, the Court has to thwart the attempt at the very threshold. The Court cannot permit a prosecution to go on if the case falls in one of the categories as illustratively enumerated by this Court in State of Haryana v.Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] . Judicial process is a solemn proceeding which cannot be allowed to be converted into an instrument of operation or harassment. When there are materials to indicate that a criminal proceeding is manifestly attended with mala fide and proceeding is maliciously instituted with an ulterior motive, the High Court will not hesitate in exercise of its jurisdiction under Section 482 CrPC to quash the proceeding under Category 7 as enumerated in State of Haryana v. Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , which is to the following effect: (SCC p. 379, para 102) ''102. ... (7) Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.' Above Category 7 is clearly attracted in the facts of the present case. Although, the High Court [Vineet Kumar v. State of U.P., 2016 SCC OnLine All 1445] has noted the judgment of State of Haryana v.Bhajan Lal [State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335 : 1992 SCC (Cri) 426] , but did not advert to the relevant facts of the present case, materials on which final report was submitted by the IO. We, thus, are fully satisfied that the present is a fit case where the High Court ought to have exercised its jurisdiction under Section 482 CrPC and quashed the criminal proceedings."
The aforesaid exposition of law in our humble opinion, provides sufficient guidance to the exercise of inherent powers by the High Court under Section 482 Cr.P.C..
The case of Asian Resurfacing of Road Agency Private Ltd. Versus C.B.I. reported in (2018) 16 SCC 299 also acts as a guidance to the High Court in exercise of its power under Section 482 Cr.P.C. and helps us in answering the question referred to us by the learned Single Judge. We may in this context refer to paragraphs 27, 28 and 37 of the judgment. The said paragraphs are as under:-
"27. Thus, even though in dealing with different situations, seemingly conflicting observations may have been made while holding that the order framing charge was interlocutory order and was not liable to be interfered with under Section 397(2) or even under Section 482 CrPC, the principle laid down in Madhu Limaye [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] still holds the field. Order framing charge may not be held to be purely an interlocutory order and can in a given situation be interfered with under Section 397(2) CrPC or 482 CrPC or Article 227 of the Constitution which is a constitutional provision but the power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in an exceptional situation.
28. We have thus no hesitation in concluding that the High Court has jurisdiction in an appropriate case to consider the challenge against an order framing charge and also to grant stay but how such power is to be exercised and when stay ought to be granted needs to be considered further............
37. Thus, we declare the law to be that order framing charge is not purely an interlocutory order nor a final order. Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 CrPC or Article 227 of the Constitution. However, the said jurisdiction is to be exercised consistent with the legislative policy to ensure expeditious disposal of a trial without the same being in any manner hampered. Thus considered, the challenge to an order of charge should be entertained in a rarest of rare case only to correct a patent error of jurisdiction and not to reappreciate the matter. Even where such challenge is entertained and stay is granted, the matter must be decided on day-to-day basis so that stay does not operate for an unduly long period. Though no mandatory time-limit may be fixed, the decision may not exceed two-three months normally. If it remains pending longer, duration of stay should not exceed six months, unless extension is granted by a specific speaking order, as already indicated.
It has been categorically held in the aforesaid case that order framing charge may not be held purely interlocutory order and can in a given situation be interfered with under Section 397(2) Cr.P.C. or 482 Cr.P.C. or Article 227 of the Constitution of India, but the power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in an exceptional situation. Jurisdiction of the High Court is not barred in a challenge to an order framing charge irrespective of the label of a petition be it under Section 397 or 482 Cr.P.C. or Article 227 of Constitution of India. However, the challenge to an order of charge should be entertained in rarest of rare case only to correct the patent error of jurisdiction and not to re-appreciate the matter.
As would evident from the concurring judgment of Justice Rohinton Fali Nariman in the said case (Paragraph 54 of the Report) the inherent power of the High Court referred in Section 482 Cr.P.C. is not conferred by the Code of Criminal Procedure. The said provision only saves the already existing inherent powers, which in fact is vested upon the High Court by the Constitution itself, inter-alia under Article 215 of the Constitution of India. Also as, such High Court have the power, nay, the duty to protect fundamental rights of the citizen under Article 226 of Constitution of India, the inherent power to do justice in cases involving the liberty of the citizen would also sound in Article 21 of the Constitution of India. It has been held in the said case that Section 19(3) (c) of the Prevention of Corruption Act, 1988 cannot be read as a ban on maintainability of a petition filed before a High Court under Section 482 Cr.P.C. The non obstante clause in Section 19(3) applies only to the Code of Criminal Procedure, meaning thereby, it does not apply to the inherent powers of the High Court which flow from the Constitution. Paragraph 54 of the judgment reads as under:-
"54. It is thus clear that the inherent power of a court set up by the Constitution is a power that inheres in such court because it is a superior court of record, and not because it is conferred by the Code of Criminal Procedure. This is a power vested by the Constitution itself, inter alia, under Article 215 as aforestated. Also, as such High Courts have the power, nay, the duty to protect the fundamental rights of citizens under Article 226 of the Constitution, the inherent power to do justice in cases involving the liberty of the citizen would also sound in Article 21 of the Constitution. This being the constitutional position, it is clear that Section 19 (3)(c) cannot be read as a ban on the maintainability of a petition filed before the High Court under Section 482 of the Code of Criminal Procedure, the non-obstante clause in Section 19 (3) applying only to the Code of Criminal Procedure. The judgment of this Court in Satya Narayan Sharma Vs. State of Rajasthan, Paras 14 and 15 does not, therefore, lay down the correct position in law. Equally, in Para 17 of the said judgment, despite the clarification that proceedings can be "adapted" in appropriate cases, the Court went on to hold that there is a blanket ban of stay of trials and that, therefore, Section 482, even as adapted, cannot be used for the aforesaid purpose. This again is contrary to the position in law as laid down hereinabove. This case, therefore, stands overruled."
Availability of an alternative remedy under the Cr.P.C. does not put an absolute bar on the exercise of power under Section 482 Cr.P.C., nevertheless while exercising such powers the High Court would be loathe to bypass the remedies available under the Code and exercise its inherent powers unless there is a compelling and exceptional necessity of preventing abuse of process of Court or to secure the ends of justice, that too, sparingly and for good reasons. The legal position in this regard has been recapitulated by the Supreme Court of India in the case of Prabhu Chawla Vs. State of Rajasthan and Another reported in (2016) 16 SCC 30. Paragraph 4 to 6 of the said judgment reads as under:-
"4. Mr. P.K. Goswami, learned Senior Advocate for the appellants supported the view taken by this Court in Dhariwal Tobacco Products Ltd. He pointed out that in para 6 of this judgment S.B. Sinha, J. took note of several earlier judgments of this Court including that in R.P. Kapur Vs. State of Punjab and Som Mittal Vs. State of Karnataka for coming to the conclusion that :
"6. .... 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."
5. Mr Goswami also placed strong reliance upon the judgment of Krishna Iyer, J. in a Division Bench in Raj Kapoor V. State Relying upon the judgment of a Bench of three judges in Madhu Limaye Vs. State of Maharashtra and quoting therefrom, Krishna Iyer, J. in his inimitable style made the law crystal clear in para 10 which runs as follows:
"10. The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397, affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. in Madhu Limaye Vs. State of Maharashtra this Court has exhaustively and if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397(2). Apparent conflict may arise in some situations between the two provisions and a happy solution. 'would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order. Then in accordance with one of the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then, if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397 (2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction'.
In short, there is not total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the Court's jurisdiction. The limitation is self-restraint, nothing more The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring justice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the Court's process. Can we state that in this third category the inherent power can be exercised? In the words of Untawalia, J.:
'10. ... The answer is obvious that the bar will not operate to prevent the abuse of the process of the court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in any appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.' I am, therefore clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this Court's time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified."
6. In our considered view any attempt to explain the law further as regards the issue relating to inherent power of the High Court under Section 482 CrPC is unwarranted. We would simply reiterate that Section 482 begins with a non obstante clause to state:
"482. Saving of inherent powers of High Court.- 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 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 wholsesome 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 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"
The exercise of inherent powers is hedged by certain self imposed restrictions as has been noticed in the decisions of the Hon'ble Supreme Court quoted hereinabove. Whether in the facts of a particular case such power is to be exercised or not is a discretion to be exercised by the High Court in the light of the law discussed hereinabove.
The applicant cannot as a matter of right, seek quashing of the proceedings, if there are good reasons on which the High Court could decline to exercise its inherent powers. In the given facts of a case where the High Court finds that the application under Section 482 Cr.P.C. has itself been moved to abuse the process of the Court and delay the trial or there are otherwise malafides on the part of the applicant, or considering his conduct or that he had an occasion to approach the Court earlier but had been sitting over the matter, then these aspects can be looked into based on the particular facts of a case and appropriate decision can be taken accordingly, as per law.
Even after framing of charge under Section 228 by the Sessions Court, an application under Section 482 can lie in the facts of a case if there is a cause which has arisen and it is not possible to hold as a general preposition that no such application under Section 482 will lie after framing of charge. It all depends upon facts of the case and whether the parameters required in Section 482 are attracted or not. Likewise it cannot be said that in no circumstances such an application under Section 482 will lie if substantial evidence has been adduced by the prosecution, in view of Section 232.
Section 232 Cr.P.C. provides that if, after taking the evidence for the prosecution, examining the accused and hearing the prosecution and the defence on the point, the Judge considers that there is no evidence that the accused committed the offence, the Judge shall record an order of acquittal. No doubt at the stage of Section 232 Cr.P.C. the court would have an opportunity to acquit the accused but only after the evidence has been taken for the prosecution, but this provision would not give opportunity to the accused to seek quashing of the proceedings prior to the eventualities mentioned in Section 232 being satisfied i.e. prior to the evidence having been led by the prosecution etc. What if, prior to the said stage, may be immediately prior to it, a case is made out by the accused that given the facts and evidence, continuance of proceedings any further would lead to unnecessary harassment and abuse of the process of the Court or that the facts of the case require interference at that stage to prevent injustice? It will all depend on the assessment of facts of a case to be undertaken by the Court exercising powers under Section 482.
No such general proposition of law can be laid down ousting the jurisdiction of this Court from exercising inherent power under Section 482 Cr.P.C. merely because the charge had been framed under Section 228 or because of Section 232 Cr.P.C. Each case is to be dealt with on its own facts based on the parameters of Section 482 Cr.P.C.
One needs to understand the distinction between the proceedings 'being not maintainable' and 'not liable to be entertained'. Not being maintainable would mean it will not lie in the first place. Whereas not liable to be entertained would mean, the application, though it can lie, is not liable to be entertained in the facts of the case. The distinction may seem fine and at times blurred but nevertheless it does exist and has to be understood and kept in mind. Of course it can be also said that an application is not maintainable hence not liable to be entertained but that would be the same as the first proportion about non-maintainablity. The distinction with the second proportion remains. We can not say that, in the eventualities mentioned in the referred order, in no circumstances would an application under Section 482 Cr.P.C. be maintainable i.e. it will not lie. Whether such an application is to be entertained or not is a question to be considered and answered in the facts of each case and no general proposition or straight jacket formula can be laid down/provided in this regard. The guiding principle is as to whether in the facts of a case continuance of proceedings amount to abuse of the process of the Court and/or whether interference of the High Court is necessary to secure the ends of justice or not? Based on these two principles the facts of each case are required to be assessed by the High Court when the power and jurisdiction under Section 482 Cr.P.C. is invoked.
We answer the reference accordingly and direct that the case be placed before the learned Single Judge who has been assigned applications under Section 482 Cr.P.C. for admission and disposal, as the case may be.
Before parting we would like to mention that we had asked the learned Counsel for the applicant to show the order by which a final report allegedly submitted by the Police on 30.06.1999 in one of the 5 cases i.e. Crime Case no. 390 of 1998 under Section 392 IPC has been accepted by the Court below. The learned Counsel could not show any such order, instead he referred to a questionnaire submitted by the applicant and answers by the office of the Court concerned and stated that as the file was not traceable, therefore, the order was not available.
List this case before the learned Single Judge on 09.03.2021 amongst first five cases of the day.
We request the learned Single Judge to dispose of the proceedings at the earliest, if possible, within one month of its listing as aforesaid.
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(Saurabh Lavania,J.) (Rajan Roy,J.) Order Date :- 23.02.2021 Jyoti/-