8 Sep 2017 10:40 AM GMT
The Delhi High Court has held that the availability of revisional remedy under Section 399/401 of the Cr.P.C does not bar the invocation of inherent powers under Section 482 of the Code. In reaching the decision, the Delhi High Court followed the decision of the Supreme Court in Prabhu Chawla v. State of Rajasthan AIR 2016 SC 4245.Prabhu Chawla was rendered by a three member bench, which was...
The Delhi High Court has held that the availability of revisional remedy under Section 399/401 of the Cr.P.C does not bar the invocation of inherent powers under Section 482 of the Code. In reaching the decision, the Delhi High Court followed the decision of the Supreme Court in Prabhu Chawla v. State of Rajasthan AIR 2016 SC 4245.
Prabhu Chawla was rendered by a three member bench, which was set up to specifically decide this point as to whether alternate remedy bars petition under Section 482. There were two conflicting decisions on the issue- Dhariwal Tobacco Products Ltd. v. State of Maharashtra AIR 2009 SC 1032 and Mohit alias Sonu v. State of Uttar Pradesh AIR 2013 SC 2248. Dhariwal held there was no such bar, whereas Mohit held that alternate remedy was a bar. Answering the reference, Prabhu Chawla favoured the view taken in Dhariwal and held that the fact that revision petition was maintainable against the impugned order was no bar in entertaining an application under Section 482 against the same. The reasoning of the Supreme Court in Prabhu Chawla was that Section 482 starts with a ‘non-obstante’ clause, and therefore there cannot be an total ban or limitation on inherent powers. The Live Law report on Prabhu Chawla may be accessed here.
The case before Delhi High Court was an application under Sec.482 against an order of search and seizure issued by the Magistrate under Section 94 of the Cr.P.C. When the High Court was moved under Section 482 against the said order, preliminary objection as to the maintainability of the application was raised by the respondent/complainant. The contention was that an order under Section 94 was not an interlocutory order, and hence it was revisable under Section 399 Cr.P.C. Since remedy of revision was available, Sec.482 petition was not maintainable. It was also contended that the decision in Prabhu Chawla was per-incuriam, as it was passed ignoring other precedents.
The Court initially examined the issue whether the impugned order was in the nature of final order or interlocutory order. For that reliance was placed on Amar Nath v State of Haryana, (1977) 4 SCC 137 and Madhu Limaye v State of Maharashtra, (1977) 4 SCC 551 wherein it was held that finality of an order could not be judged by co-relating that order with the controversy in the complaint. The fact that the controversy still remained alive was irrelevant. It was observed in Amar Nath as follows :- It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revison to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code.
On the basis of the above pronouncement of law, the High Court held that the order of search and seizure was not an interlocutory order. As a corollary, it followed that the order was revisable under Section 399/401 of Cr.P.C. But the said fact was of no consequence, as the remedy under Section 482 was still available.
The Court did not accept the contention that Prabhu Chawla was per incuriam. It was also observed that accepting the objection would reduce, to a redundancy, the non obstante clause with which Section 482 of the Cr PC commences. It was further observed that Prabhu Chawla (supra) was the most recent, and most authoritative, pronouncement on the issue under consideration, and must, in view of the mandate of Article 141 of the Constitution of India, guide the path of the court.