HUSSAINBHAI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) WHAT is the impact of sub section (3) of section 397 on the maintainability of application under section 482 of the Code of Criminal Procedure (Code) read with/or under Article 227 of the Constitution of India, is a question posed before me in this application. The question being of a general importance, notice was issued to the Bar. In pursuance thereof, the learned Members, at length addressed on the question. I record my appreciation for the assistance rendered by them.

(2.) M/s V. S. Sirpurkar, S. D. Deshpande, R. N. Patil, B. S. Wankhade, Mrs. K. V. Sirpurkar, A. S. Mardikar, D. M. Nilanjkar, D. P. Lalwani and Moharir, asserted in support of the maintainability. According to them, the inherent powers - of High Court in their very nature are completely unfettered by the provisions of Code which also include sub-section (3) of sectioll397. This is abundantly clear from the language of provisions as contained in section 482 which is unambiguous and preemptory. A party unsuccessful in a revision under subsection 1 of section 397 can take a resort to section 482 of the Code, according to them.

(3.) MESSRS A. V. Gupta, P. N. Kothari, A. V. Mehta, K. G. Pande and Mrs. Indira Bodade, the learned Members on the other side, however, countered the argument The power under section 482 according to them can be exercised only in absence of remedy under the Code, on the specific topic. Section 397 (1) provides a remedy. Having availed such remedy, the unsuccessful party cannot further agitate grievance by taking resort to section 482 of the Code. Learned members have cited numerous authorities to substantiate their reval claim, which I propose to deal at the appropriate occasion. With a view to appreciate the controversy it would be expedient to reproduce the relevant sections: T1section 397 - Calling for records to exercise powers of revision.-