Laxmi Narain and others v State of Uttar Pradesh and another

Allahabad High Court

1 August 2013

Cr. No. 1156 of 2013

The Order of the Court was as follows :

(Cr. Misc. Application No. 67650 of 2013- Application for recall of order dated 14.5.2013)

1. Heard on the recall application. Ground shown is sufficient for recalling of order dated 14.5.2013 passed by this Court by means of which the application under Section 482 Cr.P.C. was dismissed for non prosecution. Order dated 14.5.2013 is hereby recalled. Recall application is allowed.

2. The application under Section 482 Cr.P.C. is restored to its original number.

3. The application under Section 482 Cr.P.C. is restored to its original number. For orders see my order of date passed in Crl. Misc. Application No. 67650 of 2013.

4. Heard learned counsel for the applicants, learned A.G.A. for the State and perused the material available on record. By means of the instant application under Section 482 Cr.P.C., the applicants have prayed for quashing of summoning order dated 17.11.2012 passed by the learned Additional Civil Judge (Jr. Div.)/Judicial Magistrate, Court No. 2, Sitapur in Complaint Case No. 1042/12, under Sections 498-A, 504 & 506 I.P.C. and 3/4 of the Dowry Prohibition Act, POlice Station Thangaon, District Sitapur.

5. By the said order, the applicants have been summoned to face trial. Learned A.G.A. submits that the applicants have an alternative remedy for preferring criminal revision against the said order. The accused persons had not challenged proceedings of aforesaid case before the revisional court and straightway approached this Court by moving an application under Section 482 Cr.P.C.

6. Hon’ble the Apex Court in the case of Om Kumar Dhankar Vs. State of Haryana reported in [2012 (11) SCC 252] 2012 Indlaw SC 598 has held the revision against the summoning order is maintainable. Hon’ble the Apex Court in the case of Padal Venkata Rama Reddy Vs. Kovvuri Satyanarayan Reddy reported in [(2011) 12 SCC 437] 2011 Indlaw SC 680 has held as under:-

“It is well settled that the inherent powers under Section 482 Cr.P.C. can be exercised only when no other remedy is available to the litigant and not in a situation where a specific remedy is provided by the statute. It cannot be used if it is inconsistent with specific provisions provided under the Code (Vide Kavita Vs. State, 2000 Cr.L.J. 315 Delhi 1999 Indlaw DEL 11251, and B.S. Joshi Vs. State of Haryana, (2003) 4 SCC 675)2003 Indlaw SC 230. If an effective alternative remedy is available, the High Court will not exercise its powers under this section, specially when the applicant may not have availed of that remedy.”

7. This point has again been considered by Hon’ble the Apex Court in the case of Amit Kapoor Vs. Ramesh Chander and Another reported in [(2012) 9 SCC 460] 2012 Indlaw SC 309 and in para 21 the Hon’ble Apex Court has held as under:-

“It may be somewhat necessary to have a comparative examination of the powers exercisable by the Court under these two provisions. There may be some overlapping between these two powers because both are aimed at securing the ends of justice and both have an element of discretion. But, at the same time, inherent power under Section 482 of the Code being an extraordinary and residuary power, it is inapplicable in regard to matters which are specifically provided for under other provisions of the Code. To put it simply, normally the court may not invoke its power under Section 482 of the Code where a party could have availed of the remedy available under Section 397 of the Code itself. The inherent powers under Section482 of the Code are of a wide magnitude and are not as limited as the power under Section 397. Section 482 can be invoked where the order in question is neither an interlocutory order within the meaning of Section 397(2) nor a final order in the strict sense. Reference in this regard can be made to Raj Kapoor & Ors. v. State of Punjab & Ors. [AIR 1980 SC 258 : (1980) 1 SCC43 ]}1979 Indlaw SC 85. In this very case, this Court has observed that inherent power under Section 482 may not be exercised if the bar under Sections 397(2) and 397(3) applies, except in extraordinary situations, to prevent abuse of the process of the Court. This itself shows the fine distinction between the powers exercisable by the Court under these two provisions. In this very case, the Court also considered as to whether the inherent powers of the High Court under Section 482 stand repelled when the revisional power under Section 397 overlaps. Rejecting the argument, the Court said that the opening words of Section 482 contradict this contention because nothing in the Code, not even Section 397, can affect the amplitude of the inherent powers preserved in so many terms by the language of Section 482. There is no total ban on the exercise of inherent powers where abuse of the process of the Court or any other extraordinary situation invites the court’s jurisdiction.

The limitation is self-restraint, nothing more. The distinction between a final and interlocutory order is well known in law. The orders which will be free from the bar of Section 397(2) would be the orders which are not purely interlocutory but, at the same time, are less than a final disposal. They should be the orders which do determine some right and still are not finally rendering the Court functus officio of the lis. The provisions of Section 482 are pervasive. It should not subvert legal interdicts written into the same Code but, however, inherent powers of the Court unquestionably have to be read and construed as free of restriction.”

8. The facts of this case are not of such nature which necessitated interference of this Court in exercise of power under Section 482 Cr.P.C.

Since the applicants have an alternative remedy to file revision before the said order, hence, the application is hereby dismissed on the ground of availability of the alternative remedy.

Order accordingly