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Isaq Mahboob And Oth... v. Vithalrao Nagorao Ke...
Factual and Procedural Background
The petitioners (accused) moved the High Court under Article 227 of the Constitution and Section 482 Cr.P.C. to quash an order dated 20 November 1974 in which the learned Judicial Magistrate, First Class, Latur, had framed charges against them in Criminal Case No. 898 of 1973 under Sections 447, 323/34 and 427/34 I.P.C.
The respondent-complainant alleged that he was in possession of Survey No. 1A at Latur pursuant to an agreement for sale dated 7 October 1972 executed in his favour by accused No. 3. On 22 July 1973, while at the land for irrigation, the complainant says about 15 accused arrived; accused Nos. 1 and 2 allegedly pushed the complainant aside and, with accused Nos. 4–9, uprooted standing maize in the adjacent field. The complainant's servant Laxman is alleged to have been pushed and beaten by some accused, while other accused stood on the well and threatened to murder the complainant if he did not vacate. The complainant claimed damage to the crop amounting to Rs. 200. Several passersby are alleged to have intervened.
The complainant gave evidence and called two witnesses who were cross-examined. On the basis of the material, the Magistrate framed charges under Sections 447, 323 and 427 read with Section 34 I.P.C. The Magistrate rejected various submissions advanced on behalf of the accused, including that no prima facie case was made out and that civil proceedings between the parties were pending.
The petitioners challenged the magistrate's order before the High Court, arguing among other things that (i) there was no prima facie case against them (and specifically against accused Nos. 10–15), and (ii) the impugned order was an interlocutory order rendering the High Court petition not maintainable.
Legal Issues Presented
- Whether the High Court can, by exercise of its powers under Article 227 of the Constitution or under Section 482 Cr.P.C., quash or interfere with an interlocutory order of a criminal court (specifically an order framing charges), given the bar introduced by sub‑section (2) of Section 397 Cr.P.C. against revision of interlocutory orders.
- Whether the inherent powers of the High Court under Section 482 Cr.P.C. may be invoked to secure ends of justice in respect of an interlocutory order when the Code (by sub‑section (2) of Section 397) specifically limits revisional intervention.
Arguments of the Parties
Petitioners' (Accused) Arguments
- The evidence on record does not disclose a prima facie case against the accused and, in particular, no case is made out against accused Nos. 10 to 15.
- The impugned order is interlocutory in nature and therefore the present application to quash is not maintainable.
- Before the Magistrate they also contended that a civil litigation was pending between the parties; accused No. 12 was in possession; the complainant had not been put in possession; the complainant (allegedly being an advocate for accused No. 3) had obtained signatures on blank papers to create the agreement for sale; and there were material contradictions in the complainant's and his witnesses' evidence.
Respondent-Complaint's Case / Evidence
- The complainant asserted possession pursuant to an agreement for sale dated 7 October 1972 and described the alleged incident of 22 July 1973 where multiple accused uprooted crop, assaulted his servant and threatened him, causing crop damage of Rs. 200.
- The complainant gave oral evidence and produced two witnesses who were cross-examined; he also relied on previous civil proceedings (a temporary injunction obtained against accused No. 1 and a rejected injunction application by others).
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Waryam Singh v. Amamath, AIR 1954 SC 215 | Explaining the scope of Article 227: the High Court's power of judicial superintendence must be exercised sparingly and to keep subordinate courts within authority, not to correct mere errors. | The court relied on this principle to underline that Article 227 is a limited supervisory power and should not be used liberally to interfere with interlocutory orders of criminal courts. |
| State of Bombay v. Nilkanth, AIR 1954 Bom 65 : (1954 Cri LJ 58) (FB) | Interpreting inherent powers (old Section 561‑A / Section 482): the High Court has wide jurisdiction to pass orders to secure the ends of justice and entertain applications not contemplated by the Code. | The court cited this authority to acknowledge the breadth of Section 482 but used it contextually to show that such inherent powers are subject to the limitation that they cannot be used in conflict with specific Code provisions. |
| Pampapathy v. State of Mysore, AIR 1967 SC 286 : (1967 Cri LJ 287) | Inherent powers under Section 482 cannot be invoked in respect of matters covered by specific provisions of the Code; they must not conflict with specific statutory provisions. | The court applied this principle to hold that Section 482 cannot be used to circumvent the specific bar contained in sub‑section (2) of Section 397 Cr.P.C. concerning interlocutory orders. |
Court's Reasoning and Analysis
The court analyzed the scheme of the Code of Criminal Procedure, 1973 with special reference to Section 397. It observed that Section 397(1) (formerly Section 435) permits the High Court or a Sessions Judge to call for and examine records of inferior criminal courts for correctness, legality or propriety and to exercise revisional powers, including suspending execution or directing release on bail pending such examination.
Crucially, the court emphasized the effect of newly introduced sub‑section (2) to Section 397, which provides that the revisional powers conferred by sub‑section (1) "shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding." The court explained that under the old Code there was no such limitation and interlocutory orders could be subject to revision; the new provision expressly removes that possibility to prevent abuse and delay in criminal proceedings.
Given this statutory bar, the court held that the High Court cannot, by invoking Article 227 of the Constitution, accomplish what Section 397(2) expressly prohibits — i.e., the High Court cannot use its writ jurisdiction under Article 227 to interfere with interlocutory orders of criminal courts in a manner that would circumvent the statutory restriction. The court allowed that in exceptional cases the High Court's supervisory power might be exercised, but stressed that such recourse should be very sparing in the context of interlocutory orders.
The petitioners also relied on the inherent powers of the High Court under Section 482 Cr.P.C. The court acknowledged that Section 482 confers wide powers to secure the ends of justice but reiterated settled law (citing Pampapathy) that those powers cannot be used where specific statutory provisions govern the matter and cannot be exercised in a way repugnant to such specific provisions. In the present codified scheme, the statutory bar in Section 397(2) operates to render Section 482 unavailable as a means to challenge interlocutory orders of subordinate criminal courts in ordinary cases.
On that basis, the court concluded that the present application, which sought to quash an interlocutory order framing charges, was not maintainable before the High Court under Article 227 or Section 482 given the express prohibition in Section 397(2).
Holding and Implications
Holding: APPLICATION DISMISSED.
The High Court dismissed the petition seeking to quash the magistrate's order. The rule (if any) was discharged and the court made no order as to costs.
Implications:
- Direct effect: The impugned order of the Magistrate framing charges remains in place; the petition to quash that interlocutory order is dismissed and the criminal prosecution proceeds in the subordinate court.
- Broader principle articulated: Where Parliament has expressly barred revision in respect of interlocutory orders by sub‑section (2) of Section 397 Cr.P.C., the High Court should not employ Article 227 or the inher ent powers under Section 482 to circumvent that bar; such supervisory or inherent powers may be exercised only very sparingly in exceptional cases.
- No novel precedent beyond these applications of established authorities was laid down; the court applied existing principles (Waryam Singh, State of Bombay v. Nilkanth, Pampapathy) to conclude that the petition was not maintainable.
Outcome recorded in the opinion: "In the result, the application is dismissed. Rule is discharged. There will be no order as to costs."
Aggarwal, J.:— In this criminal application under Article 227 of the Constitution of India and under Section 482 of the Criminal Procedure Code, 1973, the accused seek to quash the order dated 20th November 1974, whereby the learned Judicial Magistrate, First Class, Latur, framed charges against them for the offences under Sections 447, 323/34 and 427/34, I.P.C in Criminal Case No. 898 of 1973 at the instance of the respondent-complainant
2. The complainant alleges that he is in possession of Survey No. 1A situated at Latur on the basis of an agreement for sale dated 7th October 1972 executed in his favour by accused No. 3. On 22nd July 1973 at about 1 p.m, he had been to the said land for irrigation purposes along with others.
3. Some time thereafer, 15 accused came at the well in the land. According to the complainant, accused No. 3 abused him and stated that he would not allow the complainant to install an engine on the well. There was standing crop of maize in the field adjacent to the well on the eastern side. Accused Nos. 1 and 2 pushed him aside and they along with accused Nos. 4 to 9 started uprooting the standing crop of maize. At that time, the complainant's servant Laxman prevented them from doing so. Accused Nos. 1 and 2 pushed Laxman and accused Nos. 4 to 9 beat him with slaps, kicks and fist blows. Accused Nos. 3 and 10 to 15 were standing on the well. The complainant alleged that they threatened him to murder if he did not vacate from the said land. According to the complainant, the accused have caused damage to the crop in his field worth Rs. 200/-. The complainant further alleged that 4 to 5 persons passing by the road including Sudam Mali, Shrinivas Deshpande, Raosaheb of Khulgapur and Harzu came there and intervened. The complainant also alleged that he filed a civil suit for injunction against accused No. 1 as he had obstructed his agricultural operations in April 1973 and as a result temporary injunction was granted in his favour against accused No. 1. The complainant further alleged that accused Nos. 3, 4 and 6 have leased the same land for a period of five years on 4th April 1973 to accused No. 9 and they in turn have filed a suit for injunction against him. However, their application for temporary injunction was rejected on 16th July 1973.
4. In support of his case, the complainant examined himself and his two witnesses. They were cross-examined at length on behalf of the accused. On the basis of the evidence before him, the learned Magistrate framed charges under Sections 447, 323 and 427 read with Section 34 I.P.C The learned Magistrate was not impressed by the submission on behalf of the accused that the complainant had failed to make out a prima facie case against the accused. The other submissions that a civil litigation is pending between the parties, accused No. 12 is in possession, the complainant was not put in possession, the complainant being an Advocate for accused No. 3 had obtained the signatures of accused No. 3 on blank papers and then used the same for the purpose of creating the alleged agreement for sale, and that there were material contradictions in the evidence of the complainant and his witnesses did not find favour with the learned Magistrate and he proceeded to frame the charges against the accused as indicated above.
5. Mr. Mandlik for the petitioners accused submitted that the evidence on record does not disclose a prima facie case against the accused and in any event at least against accused Nos. 10 to 15 no case is made out and, therefore, the impugned order is liable to be quashed as against all the accused or accused Nos. 10 to 15. On the other hand, it is submitted that the impugned order is an interlocutory order and the present application is not maintainable. This contention is well founded and the petition is liable to be dismissed.
6. The history of Article 227 of the Constitution of India and its scope were considered by their Lordships of the Supreme Court in Waryam Singh v. Amamath, AIR 1954 SC 215. This decision confirms the view that the power of judicial superintendence was to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. Again, under Article 227 the power of judicial interference of the High Court is limited to seeing that the Courts and Tribunals function within the limits of their authority. The powers are independently of the provisions of other laws conferring revisional jurisdiction on the High Court. Now, Section 397(1) of the Code of Criminal Procedure, 1973 (old Section 435) provides that the High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court within its jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety 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 may be released on bail or on his own bond pending the examination of the record. This sub-section is essentially a measure to correct by revision what may be incorrect or illegal or improper in the finding recorded or sentence passed or order made which the record on examination discloses. Another purpose is to examine the irregularity of any proceedings before an inferior Court. The scope of sub-section (1) now stands curtailed by the introduction of sub-section (2) with regard to interlocutory orders. Sub-section (2) says:—
“(2) 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.” Under the old Code, the nature of the order and the stage of the proceedings were not relevant and important. The correctness or legality or propriety of an interlocutory order or finding could be scrutinized. There were no limitations on the revisional powers of the High Court or Sessions Court in respect of interlocutory orders. The new provision specifically takes away the power of revision of the High Court or the Sessions Court in the case of interlocutory orders passed in any appeal, inquiry, trial or other proceedings. In other words, the revisional power of the High Court or the Sessions Court is now intended to be confined to matters which are concluded and final so far as the inferior Criminal Court whose finding or order is questioned is concerned. The newly added sub-section (2) is in the nature of a prohibitory injunction, prohibiting the High Court or the Sessions Court from exercising the powers of revision conferred under sub-section (1) in respect of interlocutory orders. The Legislature has taken care to clarify that such interlocutory orders might arise from any appeal, inquiry, trial or other proceedings. The High Court or the Sessions Judge is clearly barred from exercising revisional powers touching interlocutory orders. The considerations leading to the introduction of sub-section (2) are:
“At present, the High Court can interfere in revision in respect of interlocutory orders also. When petitions are filed in this regard, the proceedings in the lower court are in most cases stayed in the lower court and this holds up matters until the disposal of the revision petition. It may be that at one stage it was considered that the facility of having a wrong or unjust order struck down by the High Court was a guarantee against even the slightest injustice at any stage of a criminal proceeding. But experience has shown, particularly during recent years, that this facility has been so extensively abused that it has become a major factor delaying disposal of criminal cases not only for months but for years. There are instances where cases have been held up for as long as five years by reason of the stay order during the pendency of a revision petition against some interlocutory order or the other. This facility is availed of mostly by the rich men, industrialists, corrupt officials and the like, who are able to delay disposal of cases against them almost indefinitely. Meanwhile, some of the witnesses die or lose interest in the case and sometimes even the prosecution loses its keenness. These revision petitions against interlocutory orders, therefore, not only delay justice but sometimes defeat it.” (See the Gazette of India Extraordinary, Part II, Section 2 dated 10-12-1970, page 1327).
7. In our judgment, under the new scheme of the Code of Criminal Procedure, 1973, when the High Court is specifically debarred from exercising revisional jurisdiction in respect of interlocutory orders, it cannot by resorting to Article 227 of the Constitution of India, do what it is prohibited from by sub-section (2) of Section. 397. It may be that in exceptional cases the High Court, in exercise of its power of superintendence under Article 227 over Subordinate Courts to keep them within the limits of their authority, may issue its writ, order or direction under Article 227, but nonetheless a little use is to be made of that power in the context of interlocutory orders of Criminal Courts.
8. The petitioners have also invoked the inherent powers of this Court to quash the impugned order. Section 482 Cr.P.C 1973 (old Section 561-A) says that 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 the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. This section emphasizes that the High Court has the widest jurisdiction to pass orders to secure the ends of justice and for that purpose to entertain applications not contemplated by the Code. (See State of Bombay v. Nilkanth, AIR 1954 Bom 65 : (1954 Cri LJ 58) (FB) It is also settled that it cannot be invoked in respect of any matter covered by the specific provisions of the Code. It cannot be used if its exercise would be repugnant or conflicting with any of the specific provisions of the Code. (See Pampapathy v. State of Mysore, AIR 1967 SC 286 : (1967 Cri LJ 287)). The powers under Section 482 are nevertheless to be exercised sparingly, carefully and with caution only unless the ends of justice are put in jeopardy and where its exercise is justified by the tests laid down in the section itself. In the present scheme of codification and amendment of the law relating to Criminal Procedure in the light of the introduction of sub-section (2) of Section 397, it would not be unsafe to take a positive view that in so far as interlocutory orders are concerned, the remedial measure provided by Section 561-A of the old Code (Section 482 of the new Code) is rendered ineffective. By involving the jurisdiction of this Court under Article 227 of the Constitution of India or the powers of, this Court under Section 482 Cr.P.C 1973, the provisions of Section 397 Cr.P.C, 1973 cannot be circumvented or bypassed. We are of the opinion that the present application is not maintainable for the reasons indicated above.
9. In the result, the application is dismissed. Rule is discharged. There will be no order as to costs.
10. Application dismissed.
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