Bhiku Ram Jain Etc. Petitioners v. M.C.D & Others S

Prithvi Raj, J.:— Since a common question of law, namely whether in view of the provisions of sub-section (2) of section 397 of the Code of Criminal Procedure, 1973, is it open to the High Court in the exercise of its inherent powers under section 482 of the said code or in the exercise of its powers under Article 227 of the Constitution of India to quash a process issued against an accused-person or a charge framed against him, is involved in these cases it would be appropriate to dispose them of by a common judgment.

2. Municipal Corporation of Delhi filed a complaint against the petitioners in Cr. M. (M) 230 to 232, 240 of 1974, 80 and 218 of 1975 and others for offences under sections 7, 16 and 17 of the Prevention of Food Adulteration Act, 1954 (herein called ‘the Act’). The complaints were filed through the Assistant Municipal Prosecutor. He being a public servant his statement was not recorded by the Magistrate under section 200 of the Code of Criminal Procedure, 1973 (herein called ‘the Code’). The Magistrate after considering the averments made in the complaints, directed issue of summonses to the petitioners. The petitioners thereupon filed the above-said petitions in this Court under section 482 of the code and also under Article 227 of the Constitution of India, for quashing the complaints filed against them, amongst others, on the ground that some of them were not the directors of the Delhi Cloth and General Mills Company Limited on the date the alleged offences were stated to have been committed. Other contention raised is that there was no prima facie case against them under section 17 read with sections 7 and 16 of the Act in that they were not in charge of the day-to-day business of the Company and were not in any way responsible for the sale of articles which were allegedly found to be adulterated.

3. M.R.A Ansari J., (as he then was) before whom the said petitions came up for hearing, noticing that though in Sant Lal Nagrath v. Krishan Lal Suri and another, Cr. M. (M) 68 of 1975 (1-A), he had taken the view that the High Court cannot in exercise of its powers under section 482 of the code interfere with an interlocutory order passed by a Court in view of the prohibition contained in sub-section (2) of section 397 of the Code. A different view has been taken by V.D Misra, J. in Joginder Kumar Jain and others v. State, Cr. M. (M) No. 125 of 1975, decided on 23rd September, 1975 (1-B), placed the matter before the Hon'ble the Chief Justice for constituting a larger Bench stating that questions that arise for consideration in these cases were of sufficient importance and required to be examined by a larger Bench. This is how these matters have come up before us for consideration of the question set out earlier.

4. The other question arising in some of these petitions, namely, whether sub-section (1) of section 17 of the Act applies to the directors of a company who were alleged to be in charge of and responsible to the company for the conduct of the business of the company but against whom there is no allegation as provided under sub-section (2) of section 17 of the Act that the offence had been committed with their consent or connivance or was attributable to any neglect on their part, will be disposed of separately after hearing the parties in those cases.

5. In Cr. M. (M) 301 of 1975 Food Inspector of the Central Food Squad, Directorate General of Health Services, Government of India, on 31st July, 1973, lifted a sample of ‘Besin’ from the premises of Delhi Gram and Flour Mills for analysis, which, on analysis, was found to be adulterated. A complaint was accordingly filed against the salesman of the firm as also against Suman Kanodia petitioner in the said petition and other partners of the firm. The trial Court after examining the Food Inspector on the basis of his evidence came to the conclusion that a prima facie case under section 7/16 of the Act was made out against all the partners and that they be charged accordingly. The case was fixed for framing charge. Feeling aggrieved by the aforesaid order Smt. Suman Kanodia moved this Court under section 482 of the Code read with Article 227 of the Constitution of India for quashing the said order contending that there was no evidence to the effect that she was incharge and was responsible to the firm for the conduct of the business of the firm as envisaged under section 17 of the Act. This petition came up for hearing before V.D Misra, J. The judgment of Ansari, J., in Sant Lal Nagrath's case was cited to contend that this Court had no jurisdiction to exercise its inherent powers under section 482 of the code because of the specific bar envisaged by section 397 (2) of the Code prohibiting a revision petition being filed against an interlocutory order. V.D Misra, J., because of the apparent conflict in the two decisions, referred the question to be decided by a larger Bench.

6. In Cr. M. (M) 166 of 1976 the grievance of the petitioner, Shri M.L Batle, is that the trial Court has framed the charge against him on the basis of a perfunctory order which indicates lack of application of judicial mind and further that the trial Court has acted illegally in taking cognisance on the report of police officer in a case in which the provisions of section 195 of the Code were applicable. The petitioner accordingly prays that the order dated 10th March, 1976, directing the framing of the charge against him and the charge framed be quashed.

7. In Cr. M. (M) 74 of 1975, the trial Court framed a charge under section 304-A of the Indian Penal Code against all the accused persons by its order dated 17th November, 1974. The petitioner impugnes the framing of the charge urging that there was no material on the file for framing a charge against him.

8. In Cr. R. No. 101 of 1976 the petitioner prays that the prosecution proceedings pending against him in the Court of Additional Metropolitan Magistrate, Shahdra, under the provisions of the Defence of India Rules be quashed on the ground that the proceedings instituted against him are illegal and invalid.

9. In Cr. M. (M) 379 of 1976 the petitioner seeks to have the charge framed against him in proceedings taken against him under sections 419, 170 and 120-B of the Indian Penal Code by the Additional Chief Metropolitan Magistrate, New Delhi, quashed.

10. In Cr. M. (M) 37 of 1975 the petitioner-company seeks to have the charge dated 6th October, 1975, framed against it quashed on various grounds set out in the petition which are not required to be noted for purposes of this judgment.

11. Section 397 (1) of the Code confers powers on the High Court to call for records of any proceedings before any inferior Criminal Court within its local jurisdiction for the purpose of satisfying itself 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. Sub-section (2) thereof envisages that 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. On the arguments addressed by the parties, apart from the questions referred, another question which arises for determination in the instant cases is:

Whether an order passed by a Metropolitan Magistrate framing a charge against an accused person or issuing a process against an accused person under section 204 of the code is an interlocutory order, or a final order ?

12. Taking up the above-stated point the learned counsel for the petitioners strenuously contended that framing of a charge or issuing of a process against an accused person in a case instituted on complaint was a serious matter affecting the liberty of a citizen and the Magistrate in exercising his judicial discretion in framing a charge or issuing a process finally decides the rights of the parties at that stage from which stage the hands of the clock could not be set back by the Magistrate himself by acquitting the accused person at any subsequent stage except by completing the whole process of law relating to trials. That being so, it was urged, the framing of a charge or issuing of a process under section 204 of the code against an accused person amounts to a final order. The argument appears to be specious but is without any merit. The Code does not defined what is a ‘final order’ or an ‘interlocutory order’. This aspect has been considered in a chain of authorities and it is now well-settled that an order which does not decide any matter in issue or put an end to the litigation between the parties cannot be said to be final order. In other words, an order which does not bind and affect the rights of the parties of its own force is not deprived of its interlocutory character. Framing of a charge cannot be said to be finally determining the matter in issue, setting at rest the controversy between the parties. It only formulates specifically as to what are the accusations against an accused person which he has to meet during the trial. In framing a charge a Magistrate only specifies the accusation against an accused person and communicates the same to him so that he may not be prejudiced in defending himself. In issuing of a process under section 204 of the code, the Magistrate does not decide the matter finally between the parties. By no stretch of imagination can it be said that while issuing the process an accused person is found guilty of the offence complained of. It only requires the accused person to appear before the Court and face and answer the allegations made by the aggrieved party.

13. An order framing a charge against or issuing summons to an accused person is simply procedural in nature and does not terminate the matter finally before the Court; such an order leases the rights of the parties to be determined by the Court on adducing evidence. Howsoever, important or vital issue may have been decided in framing a charge or issuing summons against an accused person as the main matter still remains to be decided, the order is an interlocutory order and the fact that the order decides an important or a viral issue is by itself not material. It is now beyond the pale of controversy that if after the order the cause is still a live cause in which the rights of the parties are yet to be determined, the order has the attribute of an interlocutory order because finality has to be a finality in relation to the cause and must terminate the proceedings and not keep it alive to be terminated by a subsequent final order.

14. In Prem Chand Satramdas v. The State of Bihar, AIR 1951 S.C 14 (1), it was held that an order which “does not of its own force bind or affect the rights of parties” is not a final order.

15. In case, State of U.P v. Colonel Sujan Singh and others AIR 1964 S.C 1897 (2), the contention of the Union Government claiming privilege in respect of certain documents was negatived. In seeking special leave under Article 134 (1) of the Constitution of India it was contended that the impugned order was a final order in that it decided against the right of the Union Government to withhold the production of documents. Negativing the contention their Lordships held that the order did not decide the rights of the parties in the cause, the order, accordingly, was held to be “not a final order”.

16. In M/s. Tarapore and Co., Madras v. M/s. Tractors Export, Moscow and another, AIR 1970 S.C 1168 (3), it was observed that “final order” means a final decision on the rights of the parties in dispute in a suit or proceedings; if the rights of the parties in dispute in the suit or proceeding remain to be tried after the order, the order is not final. Further, an order even if it decides an issue or issues, however, cardinal the issue may be without finally determining the rights and liabilities of the parties was not final order. It was accordingly held, that the order refusing to grant an interim injunction was not a final order, and order does not determine the rights and obligations of the parties in relation to the matter in suit.

17. The above-noted cases are civil cases but the principle for determining as to what is a “final order” or an “interlocutory order” is the same in both civil and criminal matters, as was held by their Lord ships of the Federal Court in case S. Kuppuswami Rao v. The King, AIR 1949 F.C.I (4).

18. Following the ratio of the above-cited cases a Division Bench of the Allahabad High Court in Bindbasni and others v. State of U.P, 1976 Cr. L.J 1660 (5), held that the test for determining a final or interlocutory nature of an order was one and the same both in civil as well as criminal cases. The test is whether or not the order in question finally disposed of the rights of the parties or left them to be determined by the Court in the ordinary way. In that case an order passed by a Magistrate under sections 110/111, Cr. P.C was challenged. Applying the above test the Bench held that order passed by the Magistrate under sections 110/111 was nothing but an interlocutory order because it was passed when neither the rights of the parties were decided at the stage when the order was passed nor the matter in dispute was finally disposed of. The order was held to be procedural in nature giving notice to the party concerned that there was such and such allegation against him requiring him to appear before the Magistrate to clarify his position.

19. In Biswanath Aggarwala and others v. The State, 1976 Cr. L.J 1901 (6), a Division Bench of the Calcutta High Court held that framing of charge was nothing but written formulation of specific accusation made with certainty and communicated to the accused so that he may defend himself. Formulation of the charge could not in any view of the matter be said to finally determine the matter in issue as the controversy between the parties was hardly set at rest. The framing of the charge was accordingly held to be an interlocutory order.

20. A Bench of our own Court in Amrik Singh v. State, ILR (1975) II Delhi 69 (7) held that when process is issued under section 204 of the code the proceedings commence by way of an interlocutory order requiring the attendance of the accused so that the Court on hearing both the parties may reach its ultimate decision. The issue of the process does not signify that the accused person had been found guilty of the offence complained of. It was also held that framing of a charge does not terminate the proceedings. In framing of a charge or in issuing a process the only consideration is that there exists a prima facie case on the assumption that what is stated can be true and that at that stage the grounds indicate the need for proceeding further in the matter in order to discover the truth after a full and proper investigation.

21. We are in respectful agreement with the above view, the same is in consonance with the judicial concensus on the question under consideration.

22. On behalf of the petitioners, however, it was urged that the view taken by the Bench in Amrik Singh's case (supra) stands over ruled by the decision of their Lordships of the Supreme Court in Smt. Nagawwa v. Veerahha Shivalingappa Konjalgi and others, 1976 Cr. L.J 1533 (8). We are unable to accept this submission. What was observed in Smt. Nagawwa's case (supra) was that at the stage of issuing process the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and that he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused. It has to be borne in mind that in the above-cited case their Lordships were not considering the question as to what constitutes an “interlocutory” or a “final” order. The mere fact that at the stage of issuing process or framing a charge, the Magistrate has to exercise his discretion judicially would not rob the order of its interlocutory character.

23. Strong reliance on behalf of the petitioners was placed on case, Century Spinning & Manufacturing Co. Ltd. and others v. The State of Maharashtra, AIR 1972 SC 545 (9), to contend that framing of a charge or issuing process under section 204 of the code was conclusive of the rights of the parties at that stage and substantially affected the liberty of the person concerned. The said case is of no assistance to the petitions. The question under consideration in that case was whether on the institution of a case by the prosecuting authority by relying on documents referred to in section 173 of the Code, charge was to be framed automatically or whether the Court in framing the charge has to judicially consider the question of doing so. It was in that context that it was observed that, “The argument that the Court at the stage of framing the charges has not to apply its judicial mind for considering whether or not there is a ground for presuming the commission of the offence by the accused is not supportable either on the plain language of the section or on any other recognised principle of law. Further as the order framing the charge substantially affects a person's liberty their Lordships held that it was not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in section 173 of the Code, consider it proper to institute the case. It was accordingly observed that the responsibility of framing the charge was that of the Court and it has to judicially consider the question of doing so.

24. Lastly placing strong reliance on case Mohanlal Maganlal Thakkar v. State of Gujarat, AIR 1968 SC 733 (10), it was urged on behalf of the petitioners that their Lordships by taking note of the tests usually applied in English decisions approved those tests as the yardstick for determining the question as to what is a “final” or interlocutory order. The said tests, it was submitted were as under: —

“ (1) Was the order made upon an application such that a decision in favour of either party would determine the main dispute ?

(2) Was it made upon an application upon which the main dispute could have been decided ?

(3) Does the order as made determine the dispute ?

(4) If the order in question is reversed, would the action have to go on ?”

25. Applying the fourth test, it was strenuously submitted, the impugned orders, namely, framing of the charge or issuing of the process under section 204 of the code, if reversed, would put an end to the matter being further probed. The impugned orders, therefore, the learned counsel for the petitioners urged, have to be held to be final orders and if so the bar envisaged by sub-section (2) of section 397 of the Code would not apply. The argument appears to be specious but without merit.

26. A perusal of the above-cited judgment shows that their Lordships of the Supreme Court did not observe that either of these tests individually was determinative of the controversy. On the contrary they held that generally speaking a judgment or order which determines the principal matter in question is termed final. The test for determining the question of the final or interlocutory nature of the order was held to be whether the order finally determined the principal matter or not. The test No. 4 set out above as enumerated by the Supreme Court being one of the four tests adopted in some of the English decisions was not commented upon or approved. Reliance by learned counsel of the petitioners is misplaced. Indeed this aspect has been clarified by the Supreme Court in Criminal Appeal No. 44 of 1977, Parmeshwari Devi v. State, decided on 23rd November, 1976 (11).

27. In view of our discussion above we hold that an order framing a charge or issuing a process against an accused is an interlocutory order being a procedural step and does not determine the principal matter in dispute.

28. This brings us to the other and the main question under consideration, namely, whether in view of the provisions of sub-section 2 of section 397 of the Code High Court is precluded from quashing a charge framed or process issued against an accused in the exercise of its inherent power preserved by section 482 of the code.

29. Section 397 (1) of the Code envisages that the High Court or any Sessions Judge may call for an 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 property 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.

30. Sub-section (2) of this section puts an embargo on the exercise of the revisional power by the High Court in that 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. The learned counsel for the respondents contend that because of the specific embargo placed on High Court by sub section (2) of section 397 the High Court in the exercise of its inherent power cannot interfere with an interlocutory order and thus frustrate the provision of law by passing an order in an indirect manner which it is forbidden to pass directly. Reliance for this submission was placed on a Division Bench judgment of the Orissa High Court in Bhima Naik and others v. State, 1975 Cr. L.J 1923 (12), wherein it was held that in view of the specific provision of the Code under section 397 (2) the inherent power under section 482 cannot be invoked, even in respect of the instances illustratively given by the Supreme Court in case, R.P Kapur v. The State, AIR 1960 SC 866 (13). It may bear mention here that though the Bench concluded the matter as noted above, it, however further observed that interlocutory orders passed without jurisdiction were nullities and as such exercise of power by the High Court under sections 401 or 482 of the Code could not be ousted. It would, therefore, be seen that despite the specific bar envisaged by section 397 (2) the Bench of the Orissa High Court held that in cases where the interlocutory order was a nullity in the eye of law the said section would not-bar the exercise of inherent power by the High Court in a deserving case.

31. Reliance was next placed on case, Changdeo Kishan Jadhav v. Chindya Jain and others, 1976 Cr. L.J 1293 (14), decided by a Division Bench of the Bombay High Court. In that case on the report of the police the trial Court passed an order under section 145 of the code. The petitioner feeling dis-satisfied with the order challenged the same before the High Court invoking the exercise of its inherent power. The High Court declined to interfere on the ground that it was prima facie a finding of fact which did not involve any question of abuse of any process of Court or mis-carriage of justice and held that High Court will not ordinarily interfere with such an order in exercise of its powers under section 482 of the code. It was in this view of the matter that the Court observed that it was not proper to construe section 482 of the code in such a way as to nullify the legislative bar to the entertainment of revision applications against the interlocutory orders in criminal proceedings and that the inherent powers were not meant to defeat the mandatory provisions contained elsewhere in the Code. The Bench however observed that the inherent powers could be exercised “to make such orders as may be necessary to give effect to any order” passed under the Code or “to prevent abuse of the process of the Court or otherwise to secure the ends of justice”.

32. It is evident from the ratio of the above-noted case that the Bench did not held that provisions of section 397 (2) were in the nature of a prohibitory injunction disabling the High Court from exercising its inherent power in a suitable case where exercise of the power is called for to make such orders as may be necessary to give effect to any order passed under the Code or to prevent abuse of the process of the Court or otherwise to secure the ends of justice.

33. The learned counsel for the respondents then relied upon case, Dassu v. Smt. Manitra, 1976 Cr. L.J 1221 (15). In that case a revision petition filed by the petitioner challenging the maintenance granted to the respondent under section 448 of the Cr. P.C, 1898 on the ground that there was no valid marriage, had already been dismissed. No second petition being competent, the petitioner challenged the finding of the Courts below that marriage between the parties was a valid marriage in a petition under section 482 of the code. The High Court dismissed the petition holding that the provisions of section 482 could not be invoked for the purpose of circumventing the express provisions under the Code. The question whether the proceedings which are in abuse of the process of the Court can be quashed under section 482 of the code was not under consideration in that case.

34. In Isaq Mahboob and others v. Vithalrao Nagorao Kelgaonkar and another, 1976 Cr. L.J 1856 (16), a Division Bench of the Bombay High Court observed that in the exercise of its inherent power under section 482 the High Court has the widest jurisdiction to pass orders to secure the ends of justice but it cannot be used if its exercise would be repugnant or conflicting with any of the specific provisions of the Code. Further, “in the light of the introduction of section 397 (2) 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 482 of the code is rendered ineffective” and that by invoking the jurisdiction of the High Court under Article 227 of the Constitution of India or under section 482 of the Code the provisions of section 397 (2) of the Code cannot be circumvented or by-passed.

35. A similar view was taken by a Division Bench of the Orissa High Court in case Rajnikanta Meheta v. State of Orissa, 1976 Crl. L.J 1674 (17). In that case the petitioner had been committed to the Court of Session to stand trial for an offence under section 395 Indian Penal Code read with section 115, Indian Penal Code. The petitioner filed a petition in the High Court praying that the High Court in the exercise of its inherent powers under section 482 of the code or the extraordinary powers under Article 226 or its supervisory powers under Article 227 of the Constitution of India should quash the proceedings. Rejecting the prayer it was observed that the inherent powers could not be invoked to do what the law on the subject otherwise expressly prohibits and that the inherent power was not intended to be exercised for the purpose of doing something which would be in conflict with the express provisions of the law envisaged by section 397 (2) as such a step would defeat the intention of the legislature.

36. The above-cited two cases no doubt support the contention advanced on behalf of the learned counsel for the respondents but with great respect to the learned Judges in the said cases we express our inability to accept the view taken by them as such as view is not supported on a plain reading of section 397 (2) and the scope and ambit of the inherent power of the High Court preserved by section 482 of the code. We shall give our reasons for our view in a subsequent part of this judgment.

37. It is settled-law that inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code (See R.P Kapur v. The State of Punjab, AIR 1960 S.C 866) (13).

38. The question accordingly is as to what is the scope of the inherent power of the High Court. In Dr. Raghbir Saran v. The State of Bihar and another, AIR 1964 S.C 1 (18), it was observed that inherent powers are in the nature of extraordinary powers available only where no express power is available to the High Court to do a particular thing and where its express powers do not negative the existence of such inherent power and that it must be necessary to resort to it for giving effect to an order under the Code or for preventing an abuse of the process of the Court or for otherwise securing the ends of justice but being an extraordinary power it will not be pressed in aid except for modifying a flagrant abuse by a subordinate Court. It is, therefore, evident that such a power is an ‘inalienable attribute’ of the High Court's position which it holds with respect to the Courts subordinate to it keeping in view the paramount importance of securing the ends of justice.

39. section 482 of the code envisages that nothing in the Code shall be deemed to limit or affect the inherent power 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 to otherwise to secure the ends of justice. This section is pari materia with section 561-A of the Code of Criminal Procedure, 1898, which was introduced in the said Code in 1923 by the Amendment Act. Section 482 of the Code preserves the inherent power of the High Court which inhere in it because of its very constitution and does not confer any new power.

40. The question whether the inherent power of the High Court was conferred by or has the sanction of enacted law was considered in Ratilal Bhanji Mithani v. Asstt. Collector Of Customs,Bombay, Bombay and another, AIR 1967 S.C 1639 (19). Their Lordship of the Supreme Court tracing the history and the scope of inherent power observed that from its very inception the High Court has possessed and enjoyed its inherent powers including the power to prevent the abuse of the process of any Court with in its jurisdiction and to secure the ends of justice. These powers inhere in the High Court and spring from its very nature and constitution as a Court of superior jurisdiction. All the existing powers of the High Courts were preserved and continued by legislation from time to time. Further that section 561-a of the old code was inserted in the code by act xviii of 1923 to obviate any doubt that these inherent powers had been taken away by the Code. In terms, the section did not confer any power, it only declared that nothing in the Code shall be deemed to limit or affect the existing inherent powers of the High Court. Subsequently, by section 223 of the Government of India Act it was enacted that the jurisdiction of the existing High Courts and the powers of the Judges thereof in relation to the administration of justice “shall be” the same as immediately before the commencement of Part III of the said Act. It was accordingly observed that the statute confirmed and revested in the High Court all its existing powers and jurisdiction, including its inherent powers. Then came the Constitution. Article 225 enacts that the jurisdiction of the existing High Courts and the powers of the Judges thereof in relation to administration of justice “shall be” the same as immediately before the commencement of the Constitution. Their Lordships, therefore, observed that the Constitution thus confirmed and revested in the High Court all its existing powers including its inherent powers to make rules. It was further observed that when the Constitution or any enacted law has embraced and confirmed the inherent powers and jurisdiction of the High Court which previously existed the power and jurisdiction hap the sanction of an enacted ‘law’ within the meaning of Article 21 as explained in A.K Gopalan's case (AIR 1950 S.C 27) (20). In the premises it was held that the inherent powers of the High Court preserved by section 561-a of the old code are thus vested in it by ‘law’ within the meaning of Article 21.

41. The ambit of section 561-A had been considered in a series of cases. There is a chain of authorities in support of the proposition that the High Court will exercise its inherent power where an order is necessary to secure the ends of justice or to prevent the abuse of powers of any Court. This jurisdiction springs from the over-riding powers of the High Court because of its position qua the subordinate Courts and is to be invoked in exceptional cases only on satisfaction of the High Court that the ends of justice will be defeated if the injustice done to a party by an order of the subordinate Court is not remedied. The inherent power recognised by law is, however, designed to meet those cases for which there is no provision in the Code and is to be exercised in the interest of justice and to afford redress to a party who has been wrongly injured by an order of Court. Section 561-A thus safeguarded and preserved existing inherent power possessed by a High Court necessary among other purposes to secure the ends of justice. (See Lala Jai Ram Dass and others v. Emperor, AIR 1945 P.C 94 (21); Emperor v. Khawaja Nazir Ahmed, AIR 1945 P.C 18 (22); Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh and others, AIR 1975 S.C 1002 (23).

42. It is, however, to be borne in mind that the inherent power is to be used sparingly, only when it is necessary in the interest of justice to exercise the power. The injustice sought to be remedied should be of a grave character, clear and not of a doubtful character and if there exists no other provision in the Code by which the aggrieved party could seek the relief.

43. In Talab Haji Hussain v. Madhukar Purshottam Mondkar and another, AIR 1958 S.C 376 (24), it was observed that the inherent power under section 561-a of the code was to be exercised sparingly, carefully and with caution, only when such exercise was justified by the tests specifically laid down in that section. It was further observed that procedure must serve the higher purpose of justice and it is only when the ends of justice are put to jeopardy that the inherent power could and should be exercised. The various contingencies calling for the exercise of the inherent power have been enumerated by their Lordships of the Supreme Court in R.P Kapur's case (supra) holding that in exercising its jurisdiction under section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That, it was observed, is the function of the trial magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be substantiated and that broadly stated is the nature and scope of the inherent jurisdiction of the High Court under section 561-A in the matter of quashing criminal proceedings and that is the effect of the judicial decisions on the point.

44. The provisions of section 482 of the Code being pari materia with the provisions of section 561-a, same interpretation has to be placed on section 482 as had been done while interpreting the scope and ambit of the inherent power of the Court preserved in section 561-a of the old code. The question, however, is whether section 397 (2) of the Code has made any dent in the provisions of section 482 of the Code circumscribing the inherent power of the High Court disabling it to grant relief in certain types of cases. We do not think so. There can be no dispute that inherent power of the High Court is different and stands apart from its powers to revise orders of the subordinate Courts as envisaged in sec. 397 (2) which bars a revision against an interlocutory order. But does section 397 (2) in terms oust either expressly or by necessary implication the exercise of inherent power by the High Court in suitable cases to make such orders as are necessary to prevent abuse of the process of any Court or as are necessary to secure the ends of justice. It would require clear language to oust the exercise of such a power. So read, section 397 (2) cannot be said to be a bar on the High Court exercising its inherent power to interfere when serious exceptional and unusual features in the case brought before it warrant such an interference. Let us take a case where charge has been framed or process issued against an accused person by a magistrate where no charge should have been framed or process issued. To allow the trial to proceed in such a case would amount to allowing a mock trial to proceed with the inevitable result that the trial would end in an acquittal. If that be the case there can be no manner of doubt that the High Court would act ex debito justitiae to grant relief to such a party, the power of the High Court to secure the ends of justice in the exercise of its inherent power embraces the power to quash a charge or a process issued against an accused person. Can it be said that an accused person in a case where no charge is made out against him, has no remedy and must suffer the consequences of a long drawn out and perhaps futile litigation ? It would be a traversity of justice to allow a baseless charge to stand, and to go ahead with a specious and spitful proceedings knowing full well that the proceedings are baseless. The power to quash an untenable charge for securing the ends of justice must be deemed to inhere in the High Court. When the High Court is satisfied that an accused is being prosecuted without there being any material before the Subordinate Court for his prosecution it will be failing in its duty rather abdicating its functions if it did not interfere to stop patent injustice calling for instant redress. In such a case High Court is under an imperative obligation to interfere to prevent the harassment to which an accused would be subjected if prompt redress is not afforded to him. It is, however, to be borne in mind that the inherent power is not to be exercised capriciously or arbitrarily but is to be exercised ex debito justitiae to do real and substantial justice for which the Courts exist. We have carefully considered the provisions of section 397 (2) and are of the opinion that whatever limitations are imposed on the right of an accused person to file revision petition challenging an interlocutory order, the section does not expressly or by implication control the undoubted power of the Court in the exercise of its inherent power to make a suitable order to prevent the abuse of the process of Court. The High Court is not only a Court of law, but a Court of justice as well and in the interest of justice the High Court can interfere to rectify a grave wrong. That is the reason that the precise powers which inhere in a High Court are not deliberately defined by section 482 as it is not possible to attempt to define the variety of circumstances which may call for their exercise.

45. Our view finds support from a Division Bench Judgment of Calcutta High Court in Biswanath Aggarwalla's case (supra). While dealing with a similar question the Bench observed that “It is the inadequacy inherent in the Code which fails to provide for all contingencies which has called for the creation of and saving the inherent power of the Court to act ex debito justitiae. The same also explains why this inherent power is not to be exercised in matters specially covered by other provisions of the Code. If such is the nature of the power should it be exercised in fields such as interlocutory orders which have been forbidden for the use of “revisional powers of the Court only” ? Section 397 (2), it was held, “is a bar which apparently fetters the revisional powers of the Court only. There is nothing in section 482, Criminal Procedure Code that it is to be read subject to section 397 (2) “. The Court held that it would not like to fetter or circumscribe the ambit of the inherent powers of the Court which is a mighty reservoir to be drawn upon by the litigants in cases where the channels of other legal remedies under the Code are dried up, cautioning at the same time that it would be inadvisable to expand its ambit except in rare cases to spheres specifically sought to be excluded by the Code.

46. The view that we have taken is in consonance with the intention of the Parliament. While explaining the necessity of incorporating sub-section (2) in section 397, in the statement of objects and reasons it was stated as follows: —

“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. Interlocutory orders are, therefore, specifically excluded in clause 407. This change is not likely to result in any injustice. The Subordinate Courts, after separation of the Judiciary, will be manned by judicial officers who may be expected to act strictly according to law. Further, if a Magistrate has a pronounced tendency to pass wrong orders in the course of criminal proceedings, the powers of superintendence given to superior Courts would be used to correct such tendency”.

It is, therefore, evident that the Parliament itself had not ruled out the interference on the part of the High Court in a suitable case to correct wrong orders passed by subordinate Court in criminal proceedings. That being so, it is not possible to hold that in exercising inherent jurisdiction in suitable cases granting relief, the High Court would, in a way, be rendering nugatory the provisions of section 397 (2).

47. The case of Kumar Singh Chhajor and others v. Emperor, AIR 1946 P.C 169 (25), on which strong reliance was placed by the learned counsel for the respondent, is of no assistance to the respondents as section 26 of the Special Criminal Courts Ordinance, 1942, which was under consideration in that case had ruled out the exercise of the power of revision by a superior Court in respect of an order or sentence passed by a subordinate court established under the said Ordinance.

48. If the contention of the respondent is sustained it would lead to fantastic results in that in face of admitted facts if no case is made out against an accused person for framing of a charge or issuing of a process, the proceedings' are allowed to commence and prolong. It would not only cause unnecessary harassment to the aggrieved party but would permit abuse of the process of the Court to continue.

49. Inherent powers of the High Court are, however, to be exercised carefully and only when the High Court feels satisfied on the admitted facts of the case that no case is made out against an accused and that further prolongation of the prosecution would only entail harassment to the accused. Power is not to be exercised capriciously or arbitrarily but on sound legal principles provided the exercise of this power does not conflict with the express intention of the legislature indicated in the other provisions of the Code. Such an extraordinary power is to be exercised only in a suitable case on satisfaction that the proceedings in the lower Court are an abuse of the process of the Court, calling for interference by the High Court. Indiscriminate or flagrant use of this power is to be avoided so that the provisions contained in section 482 may not become an instrument to be handed over to an accused person “to short-circuiting a prosecution and bring about its sudden death”. Inherent power is to be exercised for the purposes indicated in section 482 of the code, namely, 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. As the section itself envisages no provision of the Code can limit the exercise of the inherent power.

50. This brings us to the question whether relief can be afforded to an aggrieved party in the exercise of the High Court's power under Article 227 of the Constitution. It is settled law that a High Court cannot while exercising jurisdiction under Article 227 of the Constitution interfere with findings of fact recorded by subordinate Courts or Tribunals. Its function is limited to seeing that the subordinate Courts or Tribunals function within the limits of its authority. In Bhabutmal Rai Chander v. Laxmi R. Tarte and another, AIR 1975 S.C 1297 (26), it was held that an error of fact, even though apparent on the face of the record, cannot be corrected by means of a writ of certiorari. It should follow a fortiorari that it is not subject to correction by the High Court in exercise of its jurisdiction under Article 227.

51. The power to interfere under Article 227 of the Constitution is limited to seeing that the Tribunals function within the limits of its authority (See Nagendra Nath Vohra and another v. Commissioner of Hills Division and Appeals, Assam etc., AIR 1958 S.C 398) (27).

52. In Satyanarayan Laxminarayan Hegde and others v. Malikarjun Bhavanappa Tirumale, AIR 1960 S.C 137 (28), it was held that where there is no question of assumption of excessive jurisdiction or refusal to exercise jurisdiction or any irregularity or illegality in the procedure but that the decision is erroneous such an error cannot be corrected under Article 227.

53. In view of the settled law, we are of the opinion that resort to the provisions of Article 227 of the Constitution cannot be made by a person who feels aggrieved by framing of a charge or issue of process under section 204 of the code.

Answered accordingly.