Holding

The inherent power under Section 482 cannot be exercised to review a prior order where Section 362 expressly bars such review.

Summary

The appellant filed a private complaint for offences under IPC sections 323 and 452 before a Judicial Magistrate First Class, who transferred the case to a Second Class Magistrate for enquiry under CrPC sections 192(2) and 202. The Second Class Magistrate issued process against the respondents, who challenged the issuance under Section 482 of the CrPC, alleging that the transfer was made without the magistrate first taking cognizance of the offence. The High Court dismissed the first application but entertained a second application under the same provision and quashed the proceedings. The appellant appealed, contending that the second application amounted to a review of the High Court’s earlier order, which is barred by Section 362 of the CrPC. The Supreme Court held that the inherent power under Section 482 cannot be used to override the express bar on review contained in Section 362, and that the High Court’s order was a prohibited review. Consequently, the appeal was allowed and the High Court’s order set aside.

Issues considered

Whether a second application under Section 482 CrPC can be entertained to review a prior order of the High Court.
Whether the inherent jurisdiction of the High Court under Section 482 can override the bar on review provided by Section 362 CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 192(2), s. 202, s. 362, s. 482
Indian Penal Code, 1860s. 323, s. 452

Subjects

inherent jurisdictionSection 482 CrPCSection 362 CrPCreview of judgmentabuse of processcriminal procedure

Judgment

A MOSTI. SIMRIKHIA
v.
SMT. DOLLEY MUKHERJEE@ SMT. CHHABI
MUKHERJEE & ANR.

MARCH 2, 1990
B
[A.M. AHMADI AND M. FATHIMA BEEVJ, JJ.)

Code of Criminal Procedure, 1973: Sections 362 and 482-
lnherent 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
C provisions barring review.

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 respon-
D dents, 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
E 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.
F
Allowing the appeal, this Court,

HELD: I.I 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. Suell power cannot be exercised to do something which
G 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 recon-
sider the matter and record a conflicting decisio.n., If there had been )
change in the circumstances of the case, it would be in order for the
High Court to exercise its inherent power in the prevailing circum-
H stances and pass appropriate orders to secure the ends of justice or to

788
MOSTI. SIMRIKHIA v. SMT. DOLEY [FATHIMA BEEVJ, J.] 789

\ prevent the abuse of the process of the Court. Where there is no such A
'r'" 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 mxler section 362. [790F-H; 791A]
B
1.2 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. 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, I1981] l SCC 500, relied on. c
Superintendent & Rememberancer of Legal Affairs. v. Mohan
~ Singh, [1975] 3 SCC 706, referred to.

2. In the instant case, there had been a definite finding that the
complaint was taken cognizance of by the Magistrate before he trans-
D
ferred 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 bad been taken in a subse-
quent proceeding is not, therefore, warranted. It was not open to the E
parties to reagitate the question by a fresh application nor was the court
empowered under section 482 to reconsider the matter. [7918-C]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 128 of 1990.
F
FrQm 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.
G
R.K. Garg and A. Sharan for the Respondents.

The Judgment of the Court was delivered by

FATHIMA BEEVI, J. Special leave granted.
H
790 SUPREME COURT REPORTS [ 1990] 1 S.C.R.

A 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 -1
in this appeal. In a case instituted on a private complaint by .the appel-
lant for offences under sections 452 and 3231.P.C., the Judicial Magis-
trate First Class, Patna, in exercise of power under section 192(2)
Cr.P.C. transferred the case for enquiry under section 202 of the
B Code. The Court of the Second Class Magistrate, after examining
witn.esses, by order dated 22.3.1985 issued process to the two accused,
the respondents herein. The order of the Magistrate issuing process
was challenged by the respondents 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-
C 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 respon-
dents again made Cr!. Misc. Petition 2314/89 under section 482 >--.
Cr.P .C. before the High Court alleging, inter alia, that the record of
the proceedings on close scrutiny would indicate that the case had not
D been taken cognizance of before the transfer. The learned Single
Judge accepted the case of the responrlents and quashed the proceed-
ings by the impugned order.

The learned counsel for the appellant contended before us that ',_.-
the second application under section 482 Cr.P.C. was not entertain-
E able, 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 consider-
able force in the contention of the learned counsel. The inherent
F 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 consideration of the facts by way of review is not per-
missible 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
G 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
H date of the earlier order, the exercise of the power to reconsider the
MOSIT. SIMRIKHIA v. SMT. DOLLEY [FATHIMA BEEVI, J.J 791

\ same materials to arrive at different conclusion is in effect a review,
y which is expressly barred under section 362.
A

In the present case, there had been a definite finding that the
complaint was taken cognizance of by the Magistrate before he trans-
ferred 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 B
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 ques-
tion by a fresh application nor was the court empowered under section c
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 D
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 powers,
however, as much are controlled by principle and precedent as are its
express powers by statute. If a matter is covered by an express letter of E
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
1 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
F

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 at the time of the subse-

~'
quent application were clearly different from what they were at the G
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 H
792 SUPREME COURT REPORTS , [ 1990] l S,C,R,

A Devi v. Pyare Lal, [1981] 1 SCC 500 that the inherent power of the
court cannot be exercised for doing that which is specifically prohi- ·-II
bited 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
B 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 proceed-
ings at that stage.

C We allow the appeal and set aside the order of the High Court

G.N. Appeal allowed,