Scope of section 482 of code of criminal procedure, 1973

 

SCOPE OF SECTION 482 OF CODE OF CRIMINAL PROCEDURE, 1973

INTRODUCTION:-

Saving of inherent power of 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.

It is submitted that Constitution of India is the basis of all laws enacted in our Country. The Hon’ble High Courts and other Courts of Law have been constituted as per the provisions of Constitution of India.

Article 214 of Constitution of India says that there shall be a High Court for each State. Article 215 of Constitution of India says that High Courts to be courts of records. Article 216 of Constitution of India says about Constitution of High Courts.

Article 216: Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint.

Article 226: Power of High Court to issue certain writs.

1) Notwithstanding anything in Article 32, every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue any person or authority including in appropriate cases any Government within those territories directions, orders or writs including Writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

2) ……

3) Article 227 – Power of superintendence overall the Courts by the High Court.

(1) Every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foergoing provision the High Court may  

(a) call for returns from such Courts

(b) make and issue general rules and prescribe forms

for regulating the practice and proceeding of such Courts and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such Courts.

Thus, the Hon’ble High Court has got wide powers to render justice. The Hon’ble High Court is the temple of justice. The Hon’ble High Court is also Court of records, thus, it has got power to take cognizance of contempt and to punish the Contemnor.

Powers of Criminal Court Sl. No.		Provision of Law & Court		Punishment
1.		Section 28(3) Cr.P.C. Assistant Sessions Judge		Any sentence authorized by law except
a)			Sentence of death
b)			Life Sentence
c)			Sentence of imprisonment for a term exceeding 10 years
2.		Sessions Judge or Additional Sessions Judge		Any sentence authorized by law
Sentence of death shall be subjected to confirmation by the High Court
3.		High Court		May pass any sentence authorized by law.
4.		Sec. 29 Cr.P.C. – Chief Judicial Magistrate		Any sentence authorized by law except
a)			Sentence of death
b)			Life Sentence
c)			Imprisonment for a term exceeding 7 years
5.	Judicial Magistrate		a)		Imprisonment for a term not exceeding 3 years
b)			Fine not exceeding Rs.10000/-
6.		Chief Metropolitan Magistrate		The same as that of Chief Judicial Magistrate
7.		Metropolitan Magistrate		The same as that of Judicial Magistrate

Thus, the Hon’ble High Court is also a Criminal Court when hearing an Appeal against conviction, Appeal against acquittal, Bail application, Criminal Revision Application.

Except the High Court, no Subordinate Criminal Courts have inherent powers, but the Civil Courts have got inherent powers u/s. 151 CPC. It is crystal clear that except the Hon’ble High Court, the Subordinate Courts have no inherent power to take action suo motu. Hence, both the learned Judicial Magistrate or the Court of Session have no jurisdiction to act suo motu.

– 1[Bindeswari Prasad Singh Vs. Kali Singh]

1988 Crl.LJ 608 – para 5 – held that – It is now too well settled that there is no inherent power available to be exercised by any subordinate criminal court and the power is exclusively available only to the High Court.

Bindeshwari Prasad Singh Vs Kalisingh

The Subordinate Courts do not have any inherent power.

Power u/s. 482 Cr.P.C. can be exercised only in relation to Criminal Court.

The Hon’ble High Court has got wide power in order to render complete justice. Section 482 of Code of Criminal Procedure does not give any new power to the High Court. It only saves the inherent powers of High Court. As per the law of interpretation, the heading of Section has to be conjointly read along with the provisions as decided in Iqbalsingh case by the Hon’ble Apex Court reported in 2005 SCC Crl.

The heading of Section 482 Cr.P.C. is Saving of inherent power of High Court. Thus, it is made clear that the above provision of Law does not give any new power, but it saves the power of the Hon’ble High Court. It is a special power conferred on the High Court to deal with the criminal cases alone. In order to apply Section 482 Cr.P.C., the following 3 ingredients shall be satisfied.

(1) To give effect to any order under this Code (Cr.P.C)

(2) To prevent abuse of the process of any Court

(3) To otherwise secure the ends of Justice.

Hence, the power of Hon’ble High Court under Section 482 of Code of Criminal Procedure can be exercised in regard to criminal case and Criminal Courts alone.

1.(1977)1 SCC 57

Inherent power – meaning – Black’s Law Dictionary – The principle that allows Court to deal with diverse matters over which they are thought to have intrinsic authority, such as (1) procedural rulemaking, (2) internal budgeting of the Courts, (3) regulating the practice of law; and (4) general judicial housekeeping.

Oxford English Dictionary – meaning :-

Inherent that is a basic or permanent part of  and that cannot be removed. The risk of collapse is inherent in any business.

By exercising the inherent powers, the High Court can quash (i) FIR, (ii) Complaint (iii) Final Report (iv) Orders passed by the Executive Magistrates u/s. 133, 145, 107 Cr.P.C. proceedings, (v) Directions can be issued to register the FIR, to enforce NBW, to file final report, to expedite the trial by fixing the time limit, to transfer the investigation, to transfer the trial, quashing the charges framed by the Subordinate judiciary and to pass any other order in order to secure the ends of justice. Thus, to secure the ends of justice the Hon’ble High Court can pass any orders.

When there is a specific provision of law, Section 482 Cr.P.C. cannot be invoked.

Power to quash the proceedings

By exercising the power under Section 482 Cr.P.C., the F.I.R., criminal complaint, final reports and other criminal proceedings pending before the Court of Judicial Magistrate or any other proceedings pending before the Executive Magistrate can be quashed on the ground of abuse of process of law or otherwise to secure the ends of Justice.

When the allegations made in the FIR or complaint even at their face value and accepted in their entirety do not constitute any offence or make out a case against the accused or the un-controverted allegations and evidence collected do not make out a case against the accused, then the proceedings can be quashed by invoking the power u/s. 482 Cr.P.C.

The following are case laws on the point :

[N.Sundaram Vs. P.K.Pounraj and another]

Power u/s. 482 Cr.P.C. has to be exercised sparingly and cautiously to prevent abuse of process of law and to secure the ends of Justice.

[Binod Kumar Vs. State of Bihar] –

Quashment of complaint – Civil liability cannot be converted to criminal liability – abuse of process of Court – quashed.

[Manik Tenaja Vs. State of Karnataka]

Quashing of FIR at the initial stage – where, in the opinion of the Court, the chances of ultimate conviction is bleak and no useful purpose is likely to be served by allowing a criminal prosecution to continue – FIR can be quashed at the initial stage.

[V.K.Mishra Vs State of UP] -

Merely on the ground that FIR does not contain the details – FIR cannot be quashed – unless there are indications of fabrication, prosecution version cannot be doubted.

[ Hari Singh Mann Vs Harbhajan Sing and others]

Quashment of - guidelines given to quash the proceedings on the ground of settlement between the parties – guidelines –

When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of Justice,

(ii) to prevent abuse of process of any Court,

(iii) Such a power is not to be exercised, which involves heinous and serious offences like murder, rape, decoity etc.  

1. (2015) 1 SCC Crl. 169

2. (2015) 1 SCC Crl. 203

3. 2015 SAR (Crl) 450

4. 2015 SAR (Crl) 1008

5. 2015 SAR (Crl.) 43

6[ Prakash & others Vs DSP., Thiruvidaimarudhur] ---

Whether roving enquiry can be conducted – to quash the FIR – no – the settled principles of law is that at the stage of quashing the complaint / FIR, High Court is not to embark upon an enquiry as to the probability, reliability or the genuineness of allegations made therein.

NO POWER OF REVIEW

The High Court cannot review the judgment u/s. 362 Cr.P.C. Under the colour of Section 482 of Cr.P.C., order already passed cannot be reviewed. [Hari Singh Mann Vs Har Bhajan Singh and other].

[Madhukur Sadbha Shivakar Vs State of Maharastra]

Fraud – vitiates entire proceedings – order obtained by playing fraud – statutory period of limitation would not be binding on such order – order can be recalled.

Whether the law of limitation is applicable

1. Granting relief u/s. 482 Cr.P.C. is not barred by limitation.

2. When the Lower Court has made remarks, the same can be expunged by the High Court u/s. 482 Cr.P.C.

3. When there is no other provision of law, then by exercising power u/s. 482 Cr.P.C., the High Court can undo the wrong.

4. When the revisional power of Sessions Court or the High Court is barred, then the High Court can interfere by exercising power u/s. 482 Cr.P.C. For example, in relation to interlocutory order no revision would lie as per Section 397(2) Cr.P.C. Then the application u/s. 482 Cr.P.C. is maintainable.

7. 2008(1) CTC 220 = 2008(2) Crimes 51

8.2015 SAR (Crl.) 117

9. (2015) 3 SCC (Crl.) 239

Quashing of non-compoundable offences :

As per Section 320 of Cr.P.C., some of the offences can be compounded with the permission of the Court. Now the question is whether the non-compoundable offences can be quashed on the ground of compromise by exercising the power under Section 482 Cr.P.C. Since, Section 482 Cr.P.C., begins “nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders….”. The non-compoundable offences also can be quashed on the ground of compromise arrived at between the parties; but there are some guidelines given by the Hon’ble Supreme Court.  10[Palanichamy Nadar Vs. State]

Conviction u/s. 3(1) (x), 3(1) (xi) of SC/ST Act and 323 IPC – Pending Criminal Appeal parties have compromised the matter – Victim filed affidavit – Conviction confirmed – Sentence reduced already undergone – with a view to maintain peace and communal harmony – (1973) 2 SCC 456 – (2013)1 SCC Crl. 160 followed.

Major offence was deleted by the I.O and charge sheet was filed and cognizance was taken. It was challenged by the victim u/s 482 Cr.P.C., the Madurai Bench of Madras High Court was pleased to quash the cognizance taken by the learned Judicial Magistrate. 11[MJM. Moulana Vs inspector of police Arumuganeri P.S and others] reported in.

Special Public Prosecutor will be appointed by the State under Section 24 Cr.P.C., and informant will not be heard before appointment of Public Prosecutor nor defacto-complainant can have any say over appointment of Public Prosecutor.

This issue has been decided by Madras High Court in. M.Dhamayanthi Vs. Muruganandam and others, wherein it has been held that “a Victim of atrocity under the SC/ST (Prevention of Atrocities Act) Act is entitled to engage a senior advocate of his/ her choice for the conduct of case in the Special Court as per Rule 4(5) of SC/ST Act Rules 1995.  

10. (2015) 3 MLJ Crl. 533

11. 2006(1) MLJ Crl 218

NEGATIVE FINAL REPORT & RIGHTS OF VICTIM

The criminal investigation starts after the very registration of (FIR) First Information Report and ends with Final Report under Section 173(2) Cr.P.C. If Negative final report is filed before the Learned Judicial Magistrate, the same may be accepted or rejected by the Learned Judicial Magistrate. This is well within the powers of the Learned Judicial Magistrate concerned under section 190(1) Cr.P.C. But defacto-complainant will be in darkness about his case even if negative final report is filed. There is no law permitting defacto-complainant to challenge nor any provision to inform about the finality of the investigation to him/her. This position of law created a vacuum and same has been annulled by the Honourable Apex court in [Bhagwant Singh Vs. Commissioner of Police] and in [Union Public Service Commission Vs. S.Papaiah and others] reported in

As per the law laid down in Bhagawat singh case stated supra, the issuance of a notice to the informant/defacto complainant by the Judicial Magistrate at the time of consideration of the final report is MUST, this is the binding precedent and law of the land Governing the field.

Major offence was deleted by the I.O and charge sheet was filed.

[P. Alagarsamy Vs. State of Tamil Nadu and others] – In the above case, the Investigating Officer has filed a final report deleting Section 3(1) (x) of SC/ST Act. The accused appeared before the learned Magistrate and recorded the plea of guilty and convicted him for minor offence u/s. 341 and 323 IPC by imposing petty fine. The said conviction and sentence was challenged by the defacto-complainant before the Hon’ble Madras High Court.

[Ulfat Vs State] – High Court may direct the sentence to run concurrently, when the Lower Court have passed separate sentence in separate convictions.

[R.Sivaputrian Vs The State and other ]

– Section 482 Cr.P.C. cannot be invoked to return the goods seized under E.C. Act.  

12.1985(2) SCC 537

13.1997(7) – SCC -614.

14.1999(III) CTC 464

15.1970 Crl.L.J. 767, 1987 Cr.L.J. 162

16.1982 Crl.L.J. 556

17 [Smt.Nagawwa Vs Veeranna Shivalingappa] – Complaint suffering from legal defects such as want of sanction, complaint filed by legally incompetent person – High Court can interfere u/s. 482 Cr.P.C.

 18[Balakishan Vs Khazana Ram and another ]– Civil Court already decided the title – the Executive Magistrate invoked Section 145 Cr.P.C. – abuse of power – quashed.

19[Janata Dal Vs H.S.Chowdharg and other]

Power u/s. 482 Cr.P.C. are very wide, but very plentitude of power requires great caution in its exercise.

20[St.through Spl.cell, New Delhi Vs Javjot & Sandhu] Inherent power u/s. 482 Cr.P.C. override other provisions of the Court. But does not override a statutory bar of interfering with an interlocutory order.

21[Simrikhia Vs Dolley Moksterjee and Ehambi Mukkharjee] No second application u/s. 482 Cr.P.C. is maintainable.

22[Hari Singh Mann Vs Har Bhajan Singh and other] No power of review – u/s. 482 Cr.P.C.

CONCLUSION

Thus, Section 482 Cr.P.C. saves the inherent powers of the High Court, so as to supervise the criminal justice delivery system.

17. AIR 1976 SC 1947

18. 1987 Crl.L.J. 1601

19. (1992) 4 SCC 305 = 1993 SCC Crl. 36

20. 2003 SCC (Crl.) 1545

21. AIR 1990 SC 1605

22. AIR 2001 SC 43 111