AMAR NATH Vs. STATE OF HARYANA

JUDGEMENT

(1.) This appeal by special leave involves an important question as to the interpretation, scope, ambit and commutation of the word "interlocutory order" as appearing in sub-s. (2) of S. 397 of the Code of Criminal Procedure 1973. For the purpose of brevity, we shall refer to the Code of Criminal Procedure, 1898 as "the 1898 Code", to the Code of Criminal Procedure, 1898 as amended in 1955 as "the 1955 amendment" and to the Code of Criminal Procedure, 1973 as "the 1973 Code". The appeal arises in the following circumstances.

(2.) An incident took place in village Amin on April 23, 1976 in the course of which three persons died and F. I. R. No. 139 dated April 23, 1976 was filed at police station Butana, District Karnal at about 5-30 P. M. The F. I. R. mentioned a number of accused persons including the appellants as having participated in the occurrence which resulted in the death of the deceased. The police, after holding investigations, submitted a charge-sheet against the other accused persons except the appellants against whom the police opined that no case at all was made out as no weapon was recovered nor was there any clear evidence about the participation of the appellants. The police thus submitted its final report under S. 173 of the 1973 Code in so far as the appellants were concerned. The report was placed before Mr. B. K. Gupta the Judicial magistrate Ist Class, karnal, who after perusing the same set the appellants at liberty after having accepted the report. It appears that the complainant filed a revision petition before the Additional Sessions Judge, karnal against the order of the Judicial Magistrate, 1st Class, Karnal releasing the appellants, but the same was dismissed on July 3, 1976. The informant filed a regular complaint before the Judicial Magistrate, 1st Class, on July 1, 1976 against all the 11 accused including the appellants. The learned Magistrate, after having examined the complainant and going through the record, dismissed the complaint as he was satisfied that no case was made out against the appellants. Thereafter the complainant took up the matter in revision before the Sessions Judge, karnal, who this time accepted the revision petition and remanded the case to the Judicial Magistrate for further enquiry. On November 15, 1976, the learned Judicial Magistrate, on receiving the order of the Sessions Judge, issued summons to the appellants straightway. The appellants then moved the High Court under S. 482 and S. 397 of the 1973 Code for quashing the order of the Judicial Magistrate mainly on the ground that the Magistrate had issued the summons in a mechanical manner without applying his judicial mind to the facts of the case. The High Court dismissed the petition in limine and refused to entertain it on the ground that as the order of the Judicial Magistrate dated November 15, 1976 summoning the appellants was an interlocutory order, a revision to the High Court was barred by virtue of sub-s. (2) of S. 397 of the 1973 Code. The learned Judge further held that as the revision was barred, the Court could not take up the case under S. 482 in order to quash the very order of the Judicial Magistrate under S. 397 (1) of the 1973 Code otherwise the very object of S. 397 (2) would be defeated.

(3.) While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the Subordinate Judge is expressly barred under sub-s. (2) of S. 397 of the 1973 Code the inherent powers contained in S. 482 would not be available to defeat the bar contained in S. 397 (2). Section 482 of the 1973 Code contains the inherent powers of the Court and does not confer any new powers but preserves the powers which the High Court already possessed. A harmonious construction of Ss. 397 and 482 would lead to the irresistible conclusion that where a particular order is expressly barred under S. 397 (2) and cannot be the subject of revision by the High Court, then to such a case the provisions of S. 482 would not apply. It is well settled that the inherent powers of the Court can ordinarily be exercised when there is no express provisions on the subjectmatter. Where there is an express provision, barring a particular remedy, the Court cannot report to the exercise of inherent powers.