21 Inherent Jurisdiction of High Court

Mr. Manwendra Kumar Tiwari

Introduction:

The Code of Criminal Procedure, (Cr.P.C.) 1973 seeks to achieve the objectives of substantive criminal law. But in the process of attaining these objectives the possibility of abuse of the process also exists and at times even the application of law as provided in the procedural law may not be able to secure the ends of justice. In certain cases, even in order to give effect to any of the orders under Cr.P.C. some kind of intervention at the higher level may be required. In order to address these concerns Cr.P.C. provides for section 482. The marginal note appended to section 482 says “ Saving of Inherent powers of High Court”; this clearly suggests that this provision is a saving clause meant to categorically stipulate that the provisions of Cr.P.C. are not in derogation to the inherent powers of the High Court to do justice. The fact that these are inherent powers meant to secure the ends of justice also suggests that these powers are not to be exercised frequently, in fact the same should be sparingly resorted to by the High Courts, if it is of this view that but for its intervention as sought by the petitioner ends of justice cannot be served. Section 482 is a specific provision providing for the inherent powers of the High Court related to affairs covered under Cr.P.C. only and therefore, this provision cannot be invoked for purposes other than what Cr.P.C. covers.

2. Learning Outcomes

After going through the contents of the module the reader will be able to comprehend the meaning of inherent powers of the High Court, particularly in the context of its application in criminal justice with a view to prevent the abuse of the process of court and with a view to secure the ends of justice. The same would also acquaint the reader with the dimension of section 482 Cr.P.C. and its varied application by the High Courts in the administration of the criminal justice system.

3. Inherent Powers of High Court

3.1. Meaning of Inherent Powers

The principle embodied in section 482 of Cr.P.C. is based on the maxim quando lex aliquid alicui concedit, concedere videtur ed it 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 unavailable1. The concept of inherent powers depends on a distinction between powers that are explicitly provided in the Constitution or in statutes, and those that a government, a constitutional functionary, or an individual officer of government; possesses implicitly, whether owing to the nature of sovereignty or because of the permissive reading of the language of the Constitution or the statutes. The Black’s law dictionary defines it as “ powers over and beyond those explicitly granted in the Constitution or reasonably to be implied from the express grants.” Webster’s new world dictionary defines the inherent power as “a power that must be deemed to exist in order for a particular responsibility to be carried out.”

3.2 Section 482 of Cr.P.C.

Section 482 Cr.P.C. envisages three conditions under which the inherent powers may be exercised by the High Court, namely (i) in order to give effect to an order under the code, (ii) to prevent abuse of the process of the court; and (iii) to otherwise secure the ends of justice. The three conditions are not mutually exclusive rather the application of these conditions would necessarily have overlap. For example, preventing the abuse of the process of the court cannot be distinguished as a category different from securing the ends of justice; in fact preventing such abuse would be with a view to secure the ends of justice only. Likewise to give effect to an order under the code also serves to secure the ends of justice. It is very clear though, that the ambit of “securing the ends of justice” is a very broad term, broader and inclusive of the first two conditions. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent powers of the court.2

Undoubtedly the power possessed by the High Court under the said provision is very wide and is not limited. It has to be exercised sparingly, cautiously and carefully, ex debito justitiae to do real and substantive justice for which only the court exists. 3 This section has not given additional powers to the High Court, which it did not possess before the section was inserted. It also gives no new powers. It only provides that the powers which the court already inherently possessed shall be preserved. Section 482 of the Cr.P.C. corresponds to section 561-A of the old Cr.P.C. of 1898. The 1973 Cr.P.C. has only altered the number of the section from 561-A to 482 without altering anything from what was provided in the old Cr.P.C. of 1898.

4. Dimensions of Section 482 Cr.P.C.

4. 1 Basic Principles

The Courts in India have consistently held that the ambit of the inherent powers of the High Court cannot caged, cabined or confined to some pre-decided instances for its application and same should therefore, be flexible not curbing the powers in any manner as contemplated by the Parliament. But the courts in India have also at the same cautioned against the use of this power too frequently by the courts. The Supreme Court speaking through Gajendragadkar, J. in R. P. Kapoor v. State of Punjab4 while referring to section 561-A of the old Code in a matter seeking to invoke the inherent powers of the High Court with a view to quash the criminal proceedings observed that ordinarily, a criminal proceeding against an accused person must be tried under the general provisions of the Code and therefore, the High Court should be reluctant to quash the proceeding at an interlocutory stage. This observation was made while asserting the fact that it is well settled that the High Court in its exercise of inherent powers can quash a criminal proceeding with a view to prevent the abuse of the process of any court or with a view to secure the ends of justice.

In Madhu Limaye v. State of Maharashtra5, the Supreme Court held that the following principles would govern the exercise of the inherent jurisdiction of a High Court given by section 4826:

(a) The power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;

(b) It should be exercised very sparingly to prevent abuse of the process of any court or otherwise to secure the ends of justice;

(c) It should not be exercised as against the express bar of the law engrafted in any other provision of the Code.

4.2 Writ Proceedings under Article 226/227

The main difference between Article 226 of the Constitution and section 482 of the Code is that Article 226 encapsulates wider powers to be exercised by the High Court than section 482 Cr.P.C. Writ can be issued against the State in any circumstances, whereas, section 482 can be used only to cases or procedures under the Code but not in other matters. Likewise, Article 227 is a similar provision for power of superintendence over all courts by the High Court within the territory over which it exercises jurisdiction. Under this article the power of superintendence is not only administrative but judicial also. This article therefore, givers wide powers to the High Court to see that the processes of the courts below it are not abused7. Direction which can be issued under section 482 can also be issued by way of a writ petition under Article 226/227. In numerous cases the High Court has taken the view that a writ proceeding is viable for any order without touching the inherent powers of the High Court.

4.3 Exercise of Inherent powers different from Appeal and Revision

Inherent jurisdiction of High Court is not part of the ordinary litigation process. While exercising powers under section 482 the court does not function as a court of appeal or revision. Appeal and revisions processes are creation of statutes and not contemplated to be the part of inherent powers of the court. The High Court while exercising its inherent powers would not enter into the appreciation or re-appreciation of evidence as it done if a case would reach the court by way of a statutory appeal. Where a Sessions Judge had dismissed the revision application against the order of the judicial magistrate, the High Court entertained the second revision application by the same party barred by section 397 (3) of Cr.P.C., it was held by the Supreme Court that the High Court clearly erred in admitting the second revision application under section 4828. The orders passed by the High Court in its exercise of inherent powers are not appealable by way of a provision for statutory appeal. Against the order of High Court the affected party can take up the matter to the Supreme Court by a special leave petition under Article 136 of the Constitution.

In Amit Kapoor v. Ramesh Chander9, the Supreme Court held that there may be some overlapping between the power of revision of High Court under section 397 Cr.P.C. and its inherent powers under section 482 Cr.P.C. because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent powers being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of Cr.P.C.

Instances of application of Section 482

Although, the application of section 482 cannot be reduced to some pre- decided issues, yet keeping in mind the practice by the High Courts in using this power the following areas could be highlighted as the main areas for the application of the inherent powers of the High Court:

(a) Quashing of a criminal proceeding

Quashing of FIR;

Quashing of complaint;

Quashing of Charge-sheet;

(d) Passing direction to register the case;

(e) Passing direction for reinvestigation;

(f) Quashing of any order passed by the courts below.

5.1 Quashing the Proceedings

The maximum cases involving the plea for the exercise of inherent powers are filed with a view to get the criminal proceedings at any stage quashed, and therefore the same requires to be understood very carefully. In R. P. Kapoor v. State of Punjab10 the Supreme Court summarised some of the categories of cases involving the demand for the quashing of the criminal proceedings, wherein, the exercise of inherent powers by the High Court to quash the criminal proceedings would be justified:

(i) If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding, the High Court would be justified in quashing the proceeding on that ground.

(ii) Absence of the requisite sanction may, for instance, furnish cases under this category.

(iii) Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not

Basically, the criminal complaint cannot be quashed, if allegations therein prima facie constitute offence11. In the absence of circumstances to hold prima facie that the complaint is frivolous, when the complaint does disclose the commission of an offence, there is no justification for the High Court to intervene12. Quashing of proceedings on the basis of affidavits filed by the parties is not proper13.

The Supreme Court has gathered broad guidelines for the exercise of inherent powers with a view to quash criminal proceedings under section 482 of Cr.P.C. and Article 226/227 of the Constitution in State of Haryana v. Bhajan Lal14 from the different legal provisions and the pronouncements made by the courts in India. Identifying those guidelines by way of illustration while saying that an exhaustive list is not possible or desirable, the Supreme Court stated as follows15:

(i) 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.

(ii) Where the allegations in the First Information Report and other materials, if any, accompanying the F.I.R. 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.

(iii) 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.

(iv) Where the allegations in the F.I.R. 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.

(v) 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.

(vi) Where there is an express legal bar engrafted in any of the provisions of the Code or the concerned Act (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 concerned Act, providing efficacious redress for the grievance of the aggrieved party.

(vii) 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.

In Pepsi Food v. Special Judicial Magistrate16 the Supreme Court held that though the magistrate can discharge the accused at any stage of the trial if he considers the charges to be groundless, this does not mean that the accused cannot approach the High Court under section 482 to have the complaint quashed if the complaint does not disclose the commission of a cognizable offence against the accused person. The Court therefore, concluded that the order of the High Court refusing to quash the complaint on the ground that alternative remedy was available under the Code to the accused was not proper.

The principles relevant for the quashing of a criminal proceeding were again reiterated by the Supreme Court in Indian Oil Corpn. V. NEPC India Ltd.17, after analysing catena of past judgements delivered by the Supreme Court on this issue. The relevant principles so declared by the Court were as follows18:

(i) A complaint can be quashed where the allegation made in the complaint, even if they are taken at face value and accepted in their entirety, do not prima facie constitute any offence or make out the case alleged against the accused.

(ii) A complaint may also be quashed where it is clear abuse of the process of the court, as when the criminal proceeding is found to have to have been initiated with malafides/malice for wreaking vengeance or to cause harm, or where the allegations are absurd and inherently improbable.

(iii) The power to quash, shall not, however be used to stifle or scuttle a legitimate prosecution. The power should be used sparingly and with abundant caution.

(iv) The complaint is not required to verbatim reproduce the legal ingredients of the offence alleged. If the necessary factual foundation is laid in the complaint, merely on the ground that a few ingredients have not been stated in detail, the proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is so bereft of even the basic facts which are absolutely necessary for making out the offence.

(v) A given set of facts may make out: (a) purely a civil wrong; or (b) purely a criminal offence; or (c) a civil wrong as also a criminal offence. A commercial transaction or a contractual dispute, apart from furnishing a cause of action for seeking remedy in civil law, may also involve a criminal offence. As the nature and scope of civil proceedings are different from a criminal proceeding, the mere fact that the complaint relates to a commercial transaction or breach of contract, for which a civil remedy is available or has been availed, is not by itself a ground to quash the criminal proceedings. The test is whether the allegations in the complaint disclose a criminal offence or not.

In Amit Kapoor v. Ramesh Chander 19, the Supreme Court examined the question as to when inherent powers can be invoked by the High Court to quash the charges framed as per section 228 Cr.P.C. by the court below. The Court held that the power of quashing criminal proceedings, particularly, the charge framed under section 228 should be exercised very sparingly and with circumspection and that too in the rarest of rare cases. If the allegations are so patently absurd and inherently improbable that no prudent person can ever reach such a conclusion and where basic ingredients of criminal offence are not satisfied then the court may interfere. No meticulous examination of evidence is needed whether the case would result in conviction or not at the stage of framing of charges.

5.2 Direction to register the complaint

On many occasions, if the police failed to register the case, the complainant would approach the High Court under section 482 for directions to the State to register the case. The Apex Court however, has expressed its unhappiness over this practice. In Zakir Vasu v. State of U.P.20, it ruled that the High Court should not encourage this practice and should ordinarily refuse to interfere in such matters, and relegate the petitioner to his alternative remedies, firstly under section 154(3) and section 36 Cr.P.C. before the concerned police officers, and if that is of no avail, by approaching the concerned magistrate under section 156(3). This is keeping in mind the fact that inherent powers must be used sparingly and by way of abundant caution.

5.3 Inherent Powers not to be used as measure of appeal after conviction

In Arun Shankar Shukla v. State of U.P.21, the Supreme Court took very serious view of the fact that after conviction and awaiting the order of sentence to be passed on the accused the High Court in a petition under section 482 stayed further proceedings and also stayed the non-bailable warrant issued against the accused by the trial court which was issued by the trial court on account of the absence of the accused on the day of verdict in the court. The Supreme Court declared the orders passed by the High Court illegal and expressed unhappiness that instead of ordering the convict to be present at the court for further proceedings and ignoring that the accused even after sentencing will have a right to appeal such an order was passed by the High Court under section 482.

5.4 No Power to review its judgement under section 482

The Supreme Court in Hari Singh Mann v. Harbhajan Singh Bajwa22, held that there is no provision in Cr.P.C. authorising the High Court to review its judgement passed either in exercise of appellate, revisional or original jurisdiction. Such a power cannot be exercised with the aid of or under the cloak of section 482 of Cr.P.C.

5.5 The order passed must be necessary for the disposal of the case as per law

In State of Rajasthan v. Ravi Shankar Srivastava23, The Supreme Court deleted the part of the order passed by the High Court under section 482 Cr.P.C. prohibiting the State from taking any adverse or punitive action against the petitioner in pursuance of the FIR filed. The Supreme Court stated that passing such an order was wholly unnecessary for the disposal of the case.

5.6 Quashing of criminal proceedings in matrimonial criminal cases involving non-compoundable offence on the ground of settlement between the parties

In B.S. Joshi v. State of Haryana24, the Supreme Court held that under section 482 the High Court can quash a criminal proceeding initiated under section 498-A of the Indian Penal Code if parties to the matrimonial dispute have reached a settlement. The fact that under section 320 Cr.P.C. section 498-A of the Indian Penal Code is not listed as a compoundable offence cannot come in the way of High Court quashing the criminal proceedings with a view to secure the ends of justice.

But, in Gian Singh v. State of Punjab25, a two judge bench of the Supreme Court comprising of Markandey Katju and Gyan Sudha Misra JJ. recorded its reservations for the kind of approach adopted by the Supreme Court in B.S. Joshi and some other cases,26 indirectly allowing compounding of non-compoundable offences. The bench was of the view that this amounts to amending the law and therefore recommended that the papers of this case should be placed before the Chief Justice of India for him to constitute a larger bench to settle this issue.27

The controversy was finally resolved by a three judge bench of the Supreme Court in Gian Singh v. State of Punjab28. The Court in its judgement speaking through R. M. Lodha J. (as he then was) held that power of High Court under section 482 Cr.P.C. and the power of a criminal court under section 320 Cr.P.C. dealing with the compounding of offences are very different. Therefore, the power to quash the criminal proceedings in the exercise of inherent powers on the ground that parties have reached a compromise cannot be read subject to section 320 Cr.P.C. However, such an exercise must take into account the nature and gravity of the crime and its social impact. Criminal proceedings related to offences involving mental depravity like Murder, Rape, Dacoity etc. or offences under specific laws like an act of corruption by the public servant under the Prevention of Corruption Act or offences committed by public servants while acting as public servants cannot be quashed on the basis of a compromise as these offences are not of private nature and have serious impact on the society. But offences arising from commercial, financial, mercantile, civil partnership or matrimonial offences related to dowry or family disputes are primarily of personal and private nature and therefore criminal proceedings involving these offences may be quashed by the High Court in the exercise of inherent powers.29

5.7 Interim order while the petition under section 482 is still pending cannot declare the accused to be innocent

In State of U.P. v. Ram Ashrey30, the Supreme Court held that the finding of the High Court in its interim order while the petition under section 482 was still pending before it, recording the innocence of the accused was wholly unnecessary and without any justification. The Court made it clear that such a finding could not have been recorded at the interim stage.

5.8 Awarding Cost

In Mary Angels v. State of Tamil Nadu31, the Supreme Court held that under section 482 High Courts are empowered to impose costs even if there is nothing in Cr.P.C. enabling the court to do so expressly. Therefore, the Supreme Court held that the High Court was right in imposing costs upon persons who despite there being a High Court order to frame charges against them filed a revision application in the High Court against the framing of charges by the trial court in pursuance of the High Court’s order hiding the previous order of the High Court of framing of charges against them.

6. Conclusion

Inherent jurisdiction of High Court in criminal justice system is a tool to insure that substantive justice is not forsaken at the altar of procedural compliance, as the procedure is ultimately meant to secure substantive justice only. Therefore, it is only fair that High Court be given such a power. At the same time the High Courts must always keep in mind that, generally, procedure has been deemed sufficient to address the cause of justice and therefore, an inference to this effect that procedure in a given case is being abused or that the application of general procedure would result in miscarriage of justice must be arrived at with due caution by particularly guarding against any subjective preference for a particular result.

7. Summary

Section 482 of Cr.P.C. provides for saving of the inherent power of the High Court. This section does not give High Courts the inherent powers to do justice but only identifies that the High Court continue to enjoy inherent powers on account of it being a court of record and for it being the court having both judicial and administrative supervision over the courts below it. Section 482 stipulates that this power is to be used in order to give effect to an order under the court, to prevent the abuse of the process of the court and to otherwise secure the ends of justice. The nature of inherent power under section 482 is such that it cannot be reduced to pre-decided cases, wherein, it can only apply. Giving an exhaustive list of pre-decided instances for the application of inherent powers would mean that all the future instances of abuse of the process of the court and measures required for securing the ends of justice can be categorically envisaged by way of pigeon holes, which is not possible. Therefore, an examination of the application of inherent powers of the court with a view to understand its dynamics shall always be illustrative and not exhaustive. By observing the application of section 482, one can definitely infer in categorical terms that the resort to inherent powers must not be frequent rather it should be used sparingly and with abundant caution. The High Court must not consider this to be an appellate or revisional jurisdiction and therefore, the exercise of this power must be with a view to attain the objectives for which it is carved out.