PARKASH KAUR Vs. STATE OF PUNJAB

JUDGEMENT

(1.) WHETHER the inherent powers of the High Court under section 482 of the Code of Criminal procedure, 1973, stand ousted because of the provisions of the Terrorist and Disruptive Activities (Prevention) Act, 1985, is a question of great moment raised in these five petitions i. e. Crl. Misc. Nos. 4893-M of 1988, 3941-M of 1989, 4164-M, 4948-M and 4978-M of 1990 ?

(2.) THE facts leading to this petition i. e. Crl. Misc. 4893-M of 1988 are that a first information report under sections 153-A and 124-A of the Indian Penal Code and sections 3/4 of the Terrorist and Disruptive Activities (Prevention) Act, 1985 (hereinafter referred to as 'the Act') was registered at Police Station Division No. 4. Jalandhar, against the petitioner who is Editor, Printer and Publisher of the daily Punjabi Paper 'ajit'. She moved the present petition for quashing the first information report on the ground that assuming the facts mention therein to be true, no offence was disclosed either under the Indian Penal Code or the Act. When the petition came up for hearing, the learned Advocate-General, Punjab, opposing the petition, raised a preliminary objection. It was contended that this Court had no jurisdiction to hear the petition. Reliance was placed by the learned Advocate-General on certain observations in Usmanbhai Dewoodhhai Memon and Ors. v. State of Gujarat, A. I. R. 1988 S. C. 922, and Kumar Singh Chhajor and Ors. v. Emperor, A. I. R. (33) 1946 Privy. Council 169. One of us (Harbans Singh Rai, J.) observed that Usmanbha's case held jurisdiction of the High Court barred in relation to grant of bail both under section 439 as well as section 482 of the Code of Criminal procedure (hereinafter referred to as 'the Code'), It was nowhere held that the High Court could not exercise its inherent jurisdiction in any situation whatsoever in a case registered under the Act. The learned Judge also observed that the conclusion that the High Court had no jurisdiction for offences under the Act would result in great hardship to a large number of people and would give arbitrary powers to the police. As the question involved was of great importance and kept arising in a large number of cases, it was referred to a larger Bench by order dated September 9, 1988. The matter came up before a Division Beach of this Court and by order dated October 4, 1988, the said question was referred to a Full Bench. This is how the matter has been placed before us. All the aforementioned petitions shall be disposed of by this common judgment.

(3.) SHRI G. S. Grewal, learned counsel for the petitioner, has raised a number of contentions. It will be convenient to summarise the same in the form of the following points : (i) The Act does not expressly bar jurisdiction of the High Court and no such bar of jurisdiction can be read into the Act by necessary intendment. (ii) Usmanbhai's case cannot be taken to be an authority for the exclusion of the entire jurisdiction of the High Court in cases under the Act, (iii) Exclusion of jurisdiction of the High Court is not to be readily inferred. (iv) In the absence of a procedure to the contrary the provisions of section 482 of the Code continue to apply to cases under the Act in view of section 4 of the Code (v) Designated Courts constituted under the Act are Courts-within the meaning of section 6 of the Code and they are governed by the provisions of the Code of Criminal Procedure except to the extent that a special provision has been made in the Act or certain provisions of the Code have been modified for purposes of the Act. (vi) The inherent powers of the High Court under section 482 of the Code are not conferred by any particular provision of statute but they are recognised and declared to be so. (vii) The High Court's powers under the Constitution include (a) power to enforce fundamental rights including Article 21; and (b) exercise superintendence over all Courts and Tribunals within its jurisdiction. The Designated Court established under the Act is one such Court. (viii) The Designated Court is a court of ordinary criminal justice. It may or may not be subordinate to the High Court, it is certainly-inferior to the High Court. (ix) There is no conflict between inherent powers of the High Court and the provisions of the Act because the inherent powers are not used in violation of any express provision of law. (x) In the absence of any alternative and effective machinery for the redressal of genuine grievances it will result in great hardship to the persons involved in cases under the Act if it were held that the High Court had no jurisdiction at all to interfere in a case registered under the Act.