High Court’s inherent power

This article is written by Amardeep Kumar. Amardeep is a student of Law, pursuing his BA.LLB (Hons) course from School of Law, KIIT University, Bhubaneswar.

 

 

“The CrPC has obviously tried to make itself exhaustive and complete in every respect; and it has generally succeeded in every attempt. However, if the court finds that the Code has not made specific provision to meet the exigencies of any situation, the court has inherent power to mould the procedure to enable it to pass such orders as the ends of justice require.”[1]

 

The power to quash FIR is among the inherent powers of the High Courts of India. Courts possessed this power even before the CrPC was enacted. Added as Section 482 by an amendment in 1923, it is a reproduction of section 561(A) of the 1898 code. Since High Courts could not render justice even in cases in which the illegal was apparent, the section was created as a reminder to prevent injustice done by a subordinate court. Section 482 deals with inherent powers of the Court. It is under the 37th Chapter of the Code titled miscellaneous. It comes into action when the courts act judicially and pass an order. If the order is passed by Executive Officer of State in administrative capacity it has no application. Therefore persons aggrieved by such order cannot approach High Court to exercise its inherent power under this section. As the inherent powers are vested in High Court by law within the meaning of Article. 21 of Constitution consequently any order of High Court in violation of any right under Article 21 is not ultra vires. Cancelling of bail bond by High Court thereby depriving a person’s personal liberty is one of such instance.

Section 482 of CrPC is being read as follows:-

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 under this code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.

The bare reading of the section itself makes it clear that the provisions of the code are not intended to limit or affect the inherent powers of the High Courts. The inherent power can be exercised only for either of the three purposes mentioned in the section i.e.

  1. To give effect to an order under the code.
  2. To prevent abuse of the process of the Court.
  3. To otherwise secure the ends of justice.

This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the code. The question then crops up is that when this section will be used?

The section can be used only if   the matter in question is not covered by any specific provision of the code that section 482 can come into operation, subject further to the requirement that the exercise of such power must serve either of the abovementioned three purposes mentioned in the said section. In prescribing the rules of procedure, legislature has undoubtedly attempted to provide for all cases that are likely to arise; but it is not possible that any legislative enactment dealing with the procedure, however carefully it may be drafted, would succeed in providing for all cases that may possibly arise in future. Lacunae are sometimes discovered in procedural law and it is to cover such lacunae and to deal with cases where such lacunae are discovered that procedural law invariably recognises the existence of inherent power in courts. It would be noticed that it is only where the High Court’s inherent power has been recognised by section 482, and even in regard to the high court’s inherent power definite salutary safeguards have been laid down as to its exercise. It is only where the High Court is satisfied either that an order passed under the code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured that the High Court can and must exercise its inherent power under section 482 of the Code.[2] It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. It has been held that Section 482 cannot be invoked in non-criminal proceedings such as those under the customs act.[3] Inherent jurisdiction is a term which is incapable of definition or enumeration, and capable at the most of the test, according to well established principles of criminal jurisprudence. The framers of the Code could not have provided which all cases should be covered as abuse of the process of Court. It is for the court to take a decision in particular cases.[4] The inherent power contemplated by section 482 has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself.[5]

The following cases (summarised) have been stated by the Supreme Court, by way of illustration wherein the extraordinary power under Article 226 or inherent power under Section 482 can be exercised by the High Court to prevent abuse of process of any court or to secure justice.[6]

  1. Where the allegations in the FIR/ Complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused.
  2. Where the allegations in the FIR or other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except an order of a Magistrate within the purview of Section 155(2).
  3. Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence.
  4. Where the allegations in the FIR/complaint do not constitute any cognizable offence but constitute only non-cognizable offence to which no investigation is permitted by the police without the order of a Magistrate under Section 155(2).
  5. Where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is a 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 Statute concerned (under which the proceedings is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute 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 with a view to spite him due to private and personal vengeance.

The Hon’ble Supreme Court in Madhu Limaye v. Maharshtra[7] has held that the following principles would govern the exercise of inherent jurisdiction of the High Court:-

  1. That the power is not to be resorted to it, if there is a specific provision in the Code itself for the redress of the grievance of the aggrieved party;
  2. That it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice.
  3. That it should to be exercised as against the express bar of law engrafted in any other provision of the Code.

In Pepsi Foods Ltd. v. Judicial Magistrate[8] it was held that

“The power conferred on the High Court under Articles 226 and of the Constitution and under Section 482 of the Code have no limits but more the power more due care and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this court laying down principles for the exercise of powers by the High Court under Articles 226 and 227 may be referred to.”

In most of the cases decided during several decades the inherent power of the High Court has been invoked for the quashing of a criminal proceeding on one ground or another.

Therefore, while applying Section. 482 of the CrPC the Court has to keep in mind that it should not ordinary embark upon an enquiry whether the evidence in question is reliable or not or whether on a reasonable appreciation of it accusation would not be sustained because it is a function of  a Trial Court and if it is not used wisely then it will become an instrument in the hands of accused persons and it will lead to differential treatment which will in furtherance of it give a chance to the accused to use it as an instrument and as a matter of time it will short circuit a prosecution and bring about its sudden death.

[1] R.V. Kelkar’s Criminal Procedure, Sixth Edition

[2] Dhirendra Kumar Banerjee v. State of Bihar, 2005 Cri LJ 4791 (Jhar)

[3] P.O Thomas v. Union of India, 1990 Cri Lj 1028 (Ker)

[4] State of Orissa v. Saroj Kumar Sahoo, 2005 13 SCC 540: (2006) 2 SCC (Cri) 272

[5] Talab Haji Hussain v. Madhukar Purshottam Mondkar, 1958 Cri LJ 701, 706-07 : AIR 1958 SC 376

[6] State of Haryana v. Bhajan Lal, 1992 Supp (I) SCC 335: 1992 SCC Cri) 426: 1992 Cri LJ 527

[7] (1977) 4 SCC 551: 1978 SCC (cri) 10, 14; 1978 Cri LJ 165

[8] (1998) 5 SCC 749, 758: 1998 SCC (Cri) 1400

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