Revision, Quashing, Inherent Power or Certiorari? Why the Chaos?

Revision of cases, quashing of FIRs and exercise of other inherent powers is one of the main functions of the High Court nowadays. If one visits a courtroom in any High Court s/he would notice that maxim number of cases which are put up on the cause list are with respect to these issues. Thus, it becomes important to discuss the relevant provisions at hand and compare them with constitutional remedies in order to determine their applicability. This article aims to do describe the same. I will begin by describing the relevant provisions in the first part, which will include Section 397 of The Code of Criminal Procedure, 1973 [hereinafter “CrPC”] and Section 482 of CrPC. Thereafter deal with the overlapping powers in the provisions and conclude by stating the actual position of law.

Section 397 –

Section 397 of CrPC[1] deals with the High Court’s power[2] to call for records for the purpose of revision. Exercise of such revisional power by the High Court under Section 397 is to call for the records of any inferior Criminal Court and to examine the correctness, legality or propriety of any finding, sentence or order passed and as to the regularity of proceedings of such inferior court.[3] The rationale behind this, as observed by the Hon’ble Supreme Court (SC), is that this revisional power of a superior court actually enables it to correct a grave error and it is a procedural facility for the High Court.[4] However, it must be kept in mind that the existence of that power does not confer any corresponding right on a litigant.[5]

Section 482 –

Section 482 of CrPC[6] preserves the inherent powers of the High Court. As has been held by the SC in State of Punjab v. Kasturi Lal[7], this section does not confer any (new) power on the High Court. It only preserves the powers already vested in the court.[8] It can be invoked to a) to give effect to an order under the code; b) to prevent abuse of the process of court and c) to secure the ends of justice.[9] However, there are certain limitation on the ambiguously drafted powers of the court viz, 1) this power cannot be reported if there is a specific section for redressal of the grievance[10]; 2) it should not be exercised if the exercise of such power would inconsistent with the specific provision of the code[11]; 3) it should be exercised sparingly[12].

The Confusion –

Having explained the provisions at hand briefly, in this part I’ll undertake to resolve some of the confusions related to these sections. There has been a catena of cases[13] where petitioners approach the High Court under writ jurisdiction to quash the FIR/order revision/redirect investigation instead of the available remedies under Section 397 and Section 482 of CrPC. In State of H.P v. Pirthi Chandra[14] it was held that –

“When the remedy under Section 482 is available, the High Court would be loath and circumspect to exercise its extraordinary power under Article 226 since efficacious remedy under Section 482 of the Code is available. When the Court exercises its inherent power under Section 482 the prime consideration should only be whether the exercise of the power would advance the cause of justice or it would be an abuse of the process of the Court.”

          (emphasis supplied)

In addition to this, it is also argued that the court should discourage the practice of filing a writ petition or petition under Section 482 CrPC simply because a person has a grievance that his FIR has not been registered by the police, or after being registered, a proper investigation has not been done by the police.[15] The reasons given by the court were that there are specific remedies available under the code.[16] The ambiguity here lies in the fact that availability of alternative remedies does not bar writ petition specifically. Although it can be barred for the purpose of Section 482 which in my opinion should not be construed in a strict sense so as to make the petitioner go all over the process.

Another argument in favour of the same would be the common ground of supervisory jurisdiction under Article 226/227 and inherent power under Section 482 of CrPC. Firstly, The powers under Article 226/227 provide for effective control of inferior courts and other government authority within the territorial jurisdiction.[17] The inherent power of the High Court serves the same purpose in the administration of the criminal justice system. Secondly, Equity is a companion of justice, the presence of once allows the performance of the other.[18] Any inherent power or power of wide amplitude serves the purpose of equity. Thus, equity is another common ground in this case.

Thus, if any proceeding can be quashed under Section 482 of CrPC, it can be quashed through certiorari writs as well. Revision of order can be called by following the path of Section 397 of CrPC or through certiorari. However, it has been held that in case of wrongful conviction the proper course is to move a competent criminal court in appeal or revision and not to invoke the extraordinary jurisdiction under Article 226 of the Constitution.[19]

Apart from this, there is uncertainty about the application of Section 482 when Section 397 remedy is still available. It has been held in the case of Raj Kapoor v. State[20] that Section 397 cannot be held as a bar on inherent powers under Section 482 of CrPC. This in pith and substance means that inherent powers are not affected by any other provision of CrPC.[21] The High Court is not precluded from treating a petition under Section 397 as a petition under Section 482 and grant the necessary relief.[22] It has been held by the SC that the label of the petition by the aggrieved party is immaterial.[23] This establishes that a High Court can treat a petition under Section 397 to be a petition under Section 482 and exercise its inherent powers. It is pertinent to note that reliefs for Section 482 are also granted under writ petition, which indicates that petition under Section 397 can be considered through writ petitions as well.

Chronology/bar between § 397 and § 482?

There are two contradictory judgments to be considered here. The first one being Dhariwal Tobacco Products Ltd. v. State of Maharashtra[24] wherein it was held that remedy under Section 482 can be invoked even if remedy under Section 397 is not exhausted. The difference between this and Madhu Limaye[25] is that the language used there does not vest this right on the aggrieved party, it is the prerogative of the High Court to consider it under inherent power. The other is Mohit alias Sonu v. State of Uttar Pradesh[26] where the court held that once the remedy under Section 397 is exhausted the aggrieved party would be barred from exercising remedy under Section 482.

This issue was solved in 2016 in Prabhu Chawla v. State of Rajasthan[27], where the SC held that availability of a remedy under CrPC would not bar a petition under Section 482 and cannot interfere or preclude the inherent power of the High Court, which are not granted by CrPC but existed before it was enacted are only preserved by the code. The court gave a two-pronged decision.  Firstly, Section 482 starts with a ‘non-obstante’ clause (“nothing in this code….”) therefore there cannot be any bar on this jurisdiction by any way of interpretation of CrPC.[28] Secondly, Section 397 is only barred by Section 397(2), i.e., regarding the interlocutory orders.[29] Thus, it is well settled that remedy under Section 397 will not bar remedy under Section 482.

With respect to which remedy to approach first, there is no hard and fast rule. However, it is my humble and firm opinion that since Section 482 is the power of wide amplitude exercised by the High Court it should be opted once remedy under Section 397 is exhausted. I hold this opinion for two reasons viz, firstly, it is the ideal way to approaching for any remedy and Secondly, it might appear to be an attempt to stifle or delay the process of the court.

Conclusion –

Through this discussion one can draw four primary conclusions, a) remedies under Section 397 or Section 482 can be availed through writ petition; b) High Court can convert petitions under Section 397 to Section 482; c) Exhausting remedy under Section 397 does not exhaust remedy under Section 482; and d) there is no chronological aspect for approaching remedies under Section 397 or Section 482.

Although the blur picture we started with seems to be clearer now but there one can easily call it stretch of imagination or interpretation. There is a wide scope for improvements in the settled position which does not fall in the grey area, but that is the beauty of the law. In the words of Justice Murlidhar[30]

“The colour that the judge of many years best identifies with is grey.”

[1] § 397  –  Calling for records to exercise powers of revision –

  • The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order,- recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation.—All Magistrates, whether Executive or Judicial, and whether exercising

original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for

the purposes of this sub-section and of section 398.

  • The powers of revision conferred by sub-section (1) shall not be exercised in relation to any

interlocutory order passed in any appeal, inquiry, trial or other proceeding.

  • If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the either of them.

[2] § 397 also talks about Sessions Judge however, the discussion here is restricted to High Courts only.

[3] Krishnan v. Krishnaveni, A.I.R. 1997 S.C. 987.

[4] Kamlesh Kumar v. State of Jharkhand, (2013) 15 S.C.C. 460.

[5] Ibid.

[6] § 482 – Saving of inherent powers of the 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 under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

[7] 2004 Cr. L.J. 3866 (3868) (S.C.).

[8] Ibid.

[9] Ibid.

[10] Hamida v. Rashid, (2008) 1 S.C.C. 474 (478)

[11] Arun Shanker Shukla v. State of UP, A.I.R. 1999 S.C. 2554.

[12] supra note 10.

[13] Indrani Chakraborty v. State of West Bengal, 2014 S.C.C. OnLine Cal. 17573; State of Himachal Pradesh v. Pirthi Chandra, (1996) 2 S.C.C. 37; T.T. Antony v. State of Kerala, (2001) 6 S.C.C. 181.

[14] Ibid.

[15] Sahil Kumar v. State of Haryana, Criminal Misc. No.M-47157 of 2017.

[16] Ibid.

[17] Waryam v. Amar, A.I.R. 1954 S.C. 215.

[18] Dwaraka v. Union of India, A.I.R. 1990 S.C. 428.

[19] Chinubhai Keshavlal Nanawati v. KJ Metha, 1978 Cr. L.J. 1040 (Guj-DB).

[20] (1980) 1 S.C.C. 43.

[21] Ibid.

[22] Otin Panging v. Nambor Kaman, 1991 (1) Crimes 509 , 511 (Gau).

[23] Madhu Limaye v. State, A.I.R. 1978 S.C. 47.

[24] A.I.R. 2009 S.C. 1032.

[25] supra note 23.

[26] A.I.R. 2013 S.C. 2248.

[27] A.I.R. 2016 S.C. 4245.

[28] Ibid.

[29] Ibid.

[30] S. Murlidhar, Justice Muralidhar on the Distinction Between Neutrality and Impartiality available at : https://thewire.in/law/justice-muralidhar-farewell-speech-full (accessed on 23 March 2020).


ABOUT THE AUTHOR

Prakhar Raghuvanshi

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Prakhar Raghuvanshi is a second-year law undergraduate at National Law University Jodhpur.

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