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Introduction
The great principle underlying the inherent powers of the High Court under section 482 Cr.P.C. is subjected to a lot of uses and abuses. The result is controversies in the administration of justice. So this requires conceptual clarity, sharpening, structuring or channelizing. There are many issues and problems in this area. Its historical, theoretical and juristic bases constitute this project paper. A person accused of an offence is to defend himself against the allegations of the prosecution or the complainant. Sometimes proceedings are initiated on malicious and vexatious grounds. Therefore, the power is to be preserved with the court of justice to avoid vexatious and motivated proceedings like quashing of FIR in certain cases altogether. Hence, inherent powers of the court are recognized in the criminal jurisprudence. The power is not vested in the court through statutes. On the other hand, the inherent powers are preserved and saved, over and above the provisions of the Code of Criminal Procedure. Taking historical, territorial and juristic factors into consideration, High Court is the right choice to become the repository of inherent powers under section 482 of the Code of Criminal Procedure. That signifies the importance of the study of inherent powers of the High Court. The essential object of criminal law is to protect society against criminals and law-breakers. For this purpose, the law holds out threats of punishments to prospective lawbreakers as well as attempts to make the actual offenders suffer the prescribed the punishment for their crimes. Therefore, criminal law, in its wider sense, consists of both the substantive criminal law as well as the procedural criminal law. Substantive criminal law defines offences and prescribes punishments for the same, while the procedural law is to administer the substantive law. Our legal systems law of crime is mainly contained in the Code of Criminal Procedure, 1973 which has come into force from April 1, 1974.1 It provides the machinery for the detection of crime, apprehension of suspected criminals, collection of evidence, determination of the guilt or
Prakash, Dr. R. O.P. Srivastavs Principles Of Criminal Law , EBC Pvt. Ltd. Lucknow, 2010, pg. 16
innocence of the suspected person and the imposition of suitable punishment on the guilty person.2 The Code also controls and regulates the working of the machinery set up for the investigation and trial of offences. On the one hand it has to give adequately wide powers to make the investigation and adjudicatory processes strong, effective and efficient, and on the other hand, it has to take precautions against errors of judgment and human failures and to provide safeguards against probable abuse of powers by the police or judicial officers. This often involves a nice balancing of conflicting considerations, a delicate weighing of opposing claims clamouring for recognition and the extremely difficult task of deciding which of them should-predominate. The Code has obviously tried to make itself exhaustive and complete in every respect and it has generally succeeded in this attempt. However, if the Court finds that the Code has not made specific provision to meet the exigencies of any situation, the court of law has inherent power to mould the procedure to enable it to pass such orders as the ends of justice may require. It has however been declared by the Supreme Court that the subordinate courts do not have any inherent powers. The High Court has inherent powers and they have been given partial statutory recognition by enacting Section 482 of this Code of criminal procedure.3
Dr KN Chandrasekharan Pillai, R.V. Kelkars Criminal Procedure, 5th edn. EBC, Lucknow, 2012, pg 678.
3 4
Ratanlal & Dirajlal, Code of Criminal Procedure, LexisNexis, 20 th ed., 2011, p 1506 Ratanlal & Dirajlal, Code of Criminal Procedure, LexisNexis, 20 th ed., 2011, p 1506
2. To prevent abuse of the process of the court. 3. To otherwise secure the ends of justice. S482 deals with Inherent powers of the Court. It is under the 37th Chapter of the Code titled Miscellaneous.5 It comes into action when the court acts judicially and passes an order. If order is passed by Executive officer of State in administrative capacity it has no application. Therefore persons aggrieved by such order cannot arrive to HC to exercise its inherent power under this section. As the Inherent powers are vested in HC by law within meaning of Art 21 of Constitution consequently any order of HC in violation of any right under Art 21 is not ultra vires.6 Eg. Cancelling of bail bond by HC thereby depriving a persons personal liberty.
ibid M P Jain, Indian Constitutional Law 6th Edition, Lexis -Nexis India, 2012, pg. 1456 M P Jain, Indian Constitutional Law 6th Edition, Lexis -Nexis India, 2012 AIR 1978 SC 47 ibid
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under Article 227 of the Constitution as one filed under section 482 of the Code of Criminal Procedure. Similarly, several provisions of statutory offences have been tested against the provision of the Constitution while examining their legality. This has helped the court in developing an area of activity for application of inherent powers. So, it can very well be said that the Indian Constitution has positively influenced the inherent jurisdiction of the High Court in criminal justice system. Indian constitution is ascertained to be a very living thing. Inherent powers of the Supreme Court and the High Court have added vigor to the life of the constitution by prolific interpretations. law tradition of the English, in plasticity and flexibility Indian constitution has even overreached the British constitution. In Britain there is criticism about too much strain on the constitution. Lord Hailsham's criticism of the over centralized and over worked constitutional edifice says that the very political structure of the country is in peril.10 The jurist observe that "There is plenty of life .... if we can avoid being stampeded in to chaos in compatible with its essential nature and genisis"11 In contrast the Indian Constitution has accommodated great human and liberal values in its interpretations. This has trickled down to the administration of criminal justice. The Supreme Court has of late held that in a petitions under section 482 Cr.P .C. exemplary costs can be ordered.12 This trend comes from new dimensions of interpretations of the constitutional provisions where the courts initially started to grand exemplary cost and compensation cost as a palliative in writ proceedings.13
Lord Hailsham, On the Constitution, (1992), Harper Collins Publications, p. 1 Ibid 12 Mary Angel and others v. State of Tami! Nadu, 1999 (3) SCALE 663. 13 C. Kuttikrishnan, "Right to Life and Personal Liberty as a Limit on State Power: The Growth of Human Rights Jurisprudence in India", 1988 Ac.L.R. 1.
are likely to arise but it is not possible that any legislative enactment dealing with the procedure, however carefully it may be drafted, would succeed in providing for all the cases that may possibly arise in the future.
Lacunae are sometimes discovered in procedural law and it is for the purpose of covering such lacunae and dealing with such cases where such lacunae are discovered that procedural law invariably recognizes the existence of inherent powers in courts. Here it is extremely important to be noticed that it is only the High Court whose inherent power has been recognized by Section 482, and even in regard to the High Courts inherent power definite statutory safeguards have been laid down as to its exercise. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any court would be abused or that the ends of justice would not be secured that the High Court can and must exercise its inherent powers under Section 482 of this Code. Kishan Lal v. Dharmendra Bafna15 Here the Parties related to each other being members of the same family. Dispute was relating to a farm house. Both parties lodged FIR. In case filed against appellant his mother and sister, he was convicted. Final reports were prepared twice for the case filed by appellant against his mother and sister. Deputy Superintendent of police on the second report sought to obtain legal opinion of public prosecutor who was asked to complete the investigation and submit an appropriate report to the court. A petition was filed under Sec 482 of CrPC against order of further investigation, which was dismissed by the HC. The issue was whether i. ii. iii. HC was justified in observing that valid grounds existed for granting bail to petitioners and HC was right in issuing directions for grant of exemptions from personal appearance
The SC held both in negative and remitted the matter to the HC. Where court uses its power blatantly and in a arbitrary manner State of Punjab v. Pritam Chand & Ors.16 Powers possessed by the HC under 482 CrPC are very wide requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. Inherent power
15 16
should not be exercised to stifle a legitimate prosecution. In the instant case Complainant was married to Appellant 1. Appellant left for U.S.A in 1999. A case under Sec 498 I.P.C and S 4 of Dowry Prohibition Act was filed. Complaint was treated as FIR and investigation was undertaken. On completion of investigation charge sheet was filed. A divorce petition was filed by Appellant in 2001, which was granted ex parte. According to appellants, complainant remarried subsequently. Appellant filed petition under sec 482 before the HC for quashing of complaint. HC dismissed the petition, and this was subsequently challenged in SC. It was held that HC was not justified in dismissing the petition filed by the appellants.
State of Kerala v. Jabbar17 The respondents lodged FIR, against appellant alleging commission of offences under sec 406 and 420, I.P.C and same was registered. Thereafter investigation commenced. Even while investigation was in progress respondent moved the HC under Sec 482 CrPC, seeking directions to the police to seize an amount of Rs 2,28,00,000/- from appellants claiming that he was entitled for Rs 1,28,00,000/- for facilitating registration of land under the MOU, which amount is alleged to have been withheld by appellants along with a sum of 1 crore, stated to have been paid by him to the appellant. In the said petition there was no allegation of any collusion and deliberate delay on part of investigation agency. HC within a period of one month from the date of filing of petition, finally disposed the same observing that it is obligatory on part of respondent police to conduct investigation in accordance with law, including recording of statements from witness, arrest, seizure of property, filing of charge sheet etc. HC further directed that if account is available with accused person or any amount is in their possession, it is obligatory on part of respondent police to take all necessary steps to safeguard the interest of the respondent. HC accordingly directed the police to expedite and complete investigation within 6 months. The issues were i) Whether it is open to HC in exercise of its jurisdiction under Sec 482, to interfere with statutory power of investigation by police into cognizable offence. ii) Whether such direction could have been issued by the HC in exercise of its jurisdiction under Sec 482. Court held both in the negative. Inherent power of the court is saved to interfere with the proceedings pending before a Criminal Court if such interference is required to secure the ends of justice or where the continuance of proceedings before a court amounts to abuse of the process of Court. Such a power is always available to HC in relation to matter pending before a criminal court.
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complaints. The order was challenged in appeal to Supreme Court of India. While deciding the appeal, the Supreme Court of India laid down following principles:21 1) The high courts should not exercise their inherent powers to repress a legitimate prosecution. The power to quash criminal complaints should be used sparingly and with abundant caution. 2) The criminal complaint is not required to verbatim reproduce the legal ingredients of the alleged offence. If the necessary factual foundation is laid in the criminal complaint, merely on the ground that a few ingredients have not been stated in detail, the criminal proceedings should not be quashed. Quashing of the complaint is warranted only where the complaint is bereft of even the basic facts which are absolutely necessary for making out the alleged offence.
3) It was held that a given set of facts may make out
a) purely a civil wrong, or b) purely a criminal offence or c) a civil wrong as also a criminal offence
21
Ibid 37 Kylasatha Pillay, K.P., Inherent Powers of High Court Under s.482 CrPC, pg. 538. 23 Ibid, pg. 540 24 Jehan Singh v. delhi administration, AIR 1946 SC 1149
22
deprived of the opportunity to adduce evidence and prove their allegations beyond reasonable doubts. There is therefore no real adjudicatory process in the conventional sense of the term. The High Court on a prima-facie approach takes the decision. The only thing expected of the High Court is to consider whether on the materials supplied to the trial court, can it be possible for the prosecution to initiate action against the accused. On the same materials, the trial court proceeds on the belief that there is prima-facie case, the High Court applying a different parameter under a different jurisdiction considers the same materials to come to the conclusion whether aprimafacie case exists. Therefore, if the High Court decides that there is no prima-facie case, the proceedings are halted. Naturally, the question arises whether the use or abuse of the Court and whether ends of justice can be secured. The fear expressed in this context is that there is every possibility for arbitrariness and unbridled exercise of power. There is a possibility for miscarriage of justice. There is possibility for whims, fancies and caprices of the individual judges, having a sway over the decision making process. Thus, the question of evidence becomes a crucial factor in the inherent power/jurisdiction. The High Court decides without evidence and the High Court's decision prevents parties to adduce evidence. This is the most vulnerable area inthe application of inherent powers. The Supreme Court in a number of cases have found fault with the High Court for invoking the inherent powers on this count. Either the High Court would have elaborately considered the materials at hand as if, sifting the evidence from a mass of facts or the High Court would have embarked on an enquiry on the basis of conjectures to come to a conclusion. Evidence is the core of adjudication. In a situation where evidence is either not available or is not required to be considered, the decision taken by the court would be of a sensitive nature.25 Then, another infirmity of the High Court is the lack of proper and concrete norms or guidelines in the exercise of inherent powers. In this matter, the opinion of the Supreme Court is that, it is a near impossibility to lay down norms and rules because what the legislature cannot anticipate in advance the Supreme Court may not be able to do. The rationale for inherent powers, being saved and preserved in section 482 of the Code of Criminal Procedure, 1973, is grounded in the reality that it is impossible for any organ to lay down in advance, the situation for invoking inherent powers. Unforeseen and unimaginable situations may arise. Then the only solution Court and whether ends of justice can be secured. The fear expressed in this context is that there is every possibility for arbitrariness and unbridled exercise of power. There is a possibility for
25
Kylasatha Pillay, K.P., Inherent Powers of High Court Under s.482 CrPC, pg. 541
miscarriage of justice. There is possibility for whims, fancies and caprices of the individual judges, having a sway over the decision making process. Thus, the question of evidence becomes a crucial factor in the inherent power/jurisdiction. The High Court decides without evidence andthe High Court's decision prevents parties to adduce evidence. This is the most vulnerable area in the application of inherent powers. The Supreme Court in a number of cases have found fault with the High Court for invoking the inherent powers on this count. Evidence is the core of adjudication. In a situation where evidence is either not available or is not required to be considered, the decision taken by the court would be of a sensitive nature. 26
Then, another infirmity of the High Court is the lack of proper norms or guidelines in the exercise of inherent powers. In this matter, the opinion of the Supreme Court is that, it is a near impossibility to lay down norms and rules because what the legislature cannot anticipate in advance the Supreme Court may not be able to do. The rationale for inherent powers, being saved and preserved in section 482 of the Code of Criminal Procedure, 1973, is grounded in the reality that it is impossible for any organ to lay down in advance, the situation for invoking inherent powers. Unforeseen and unimaginable situations may arise. Then the only solution prudence, his commonsense, his positive sense, or his discretion.27 Another area of difficulty posed before the High Court in invoking inherent powers is the conflict it has with other provisions in the Criminal Procedure Code as well as other legislations. For instance, it is even now an unsettled proposition whether inherent powers can be exercised after availing a revision under sections 397(1) of the Code. Then the question of review is there. Here the Supreme Court opines that the High Court cannot review its judgment or decisions. But in the interest of justice the Supreme Court itself reviews decisions. Therefore, in a future case, a situation can arise where the Supreme Court will have to concede, for the purpose of serving the ends of justice that the jurisprudence, his commonsense, his positive sense, or his discretion.28
Conclusion
26 27
The thrust given to the concept of justice through application of inherent powers is an achievement of Indian jurisprudence. In the previous chapter, while summing up the concept and application, major areas covered by this research paper are enumerated. Aspects of inherent powers are expressed through questions which are declarations of various ingredients of the concept. The findings of this research programme are founded on the above ingredients. The nature of inherent powers convey the presence of a strong weapon in the hands of the judiciary. There is chance for abuse, misuse or disuse. But the enlightened opinion is in favour of giving inherent powers to the judge. The judge conducts research so that situations which do not fit in the 'strait jacket' of rule or order are overcome. Thus inherent power occupies a permanent slot in criminal justice system. The most striking character of inherent powers is the element of discretion it carries. The judge is supreme. But a judge cannot ride on inherent powers as if on an 'unruly horse'. There must be restraint, equipoise and magnanimity. A judge should not be so uncouth as to issue notice of contempt to the Chief of the same court. The judges shall not be emotive with the parties and bring in images of sentiments. No unnecessary word shall be uttered. At the same time giving power to the judges is indispensable because rules and laws are not always there when justice is in jeopardy. The function of the Supreme Court in the above context becomes onerous. It has to control, confine and limit the inherent powers of the High Court within the permissible limits. Section 482 CrPC has a very wide scope and its really important for the courts to use it properly and wisely. Many a times it has been observed that when there is an issue of money for eg. Any money matter then the petitioner instead of filing a civil suit files an FIR against the other person just to harass him. In such cases it becomes very important for the high courts to quash such complaints as it leads to the abuse of the process of the lower courts. This section would enable the courts for providing proper justice and also should be exercised to stop the public from filing fictitious complaints just to fulfill there personal grudges. The doctrine of inherent powers acquire significance becausethe principles of criminal justice administration are not exhaustively dealt with in the Code of Criminal Procedure. Rather it is impossible for a Code to be exhaustive. As According to R.V. Kelker, "In prescribing rules of procedure legislature undoubtedly attempts to provide for all cases that are likely to arise, but it is not possible that any legislative enactment dealing with the procedure however carefully it may be drafted would succeed in providing for all cases that may possibly arise in future. Lacunae are sometimes discovered in procedural law and it is to cover such lacunae and to deal with cases where such lacunae are discovered that procedural law invariably
recognises the existence of inherent powers".29 The above jurist's view sounds the general understanding that the objective is to meet the exigencies of any situations, the court has inherent power to mould the procedure to enable it to pass such orders as the ends of justice may require.
29
Dr KN Chandrasekharan Pillai, R.V. Kelkars Criminal Procedure, 5 th edn. EBC, Lucknow, 2012. Pg. 679