The 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 system’s law of crime is mainly contained in the Code of Criminal Procedure, 1973 which has come into force from April 1, 1974. It provides the machinery for the detection of crime, apprehension of suspected criminals, collection of evidence, determination of the guilt or innocence of the suspected person and the imposition of suitable punishment on the guilty person. In addition, this Code also deals with the prevention of offences (Sections 106- 124, 129- 132 and 144- 153), maintenance of wives, children and parents (Sections 125- 128) and public nuisances (Sections 133- 143).
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 judgement 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.
Background of Section 482:-
The power to quash an FIR (First Information Report) is among the inherent powers of the High Courts of India. Courts possessed this power even before the Criminal Procedure Code (CrPC) was enacted. Added as Section 482 by an amendment in 1923, it is a reproduction of the section 561(A) of the 1898 code. Since high courts could not render justice even in cases in which the illegal was apparent, the section was created as a reminder to the courts that they exist to prevent injustice done by a subordinate court.
“Nothing in this code shall be deemed to limit or effect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under the code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice”
Exercise of power under Section 482 Cr.P.C. is the exception and not rule – Inherent jurisdiction of High Court under Section 482 Cr.P.C. may be exercised :-
1. To give effect to an order under the Code.
2. To prevent abuse of the process of Court.
3. To otherwise secure the ends of justice.
According to Sec 26 of CrPC 1973 Offences below the Criminal Procedure Code (hereinafter the CrPC) are divided into:
1. Offences under Indian Penal Code (IPC) (triable by HC Sessions Court and other court shown in the 1st Schedule to the CrPC)
2. Offences under any other law (empowers HC when no court is mentioned for any offence under any law other than IPC to attempt such offences)
S482 deals with Inherent powers of the Court. It is under the 37th Chapter of the Code titled Miscellaneous.
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.
Eg. Cancelling of bail bond by HC thereby depriving a person’s personal liberty.
Purpose behind its incorporation:-
This section makes it clear that the provisions of the Code are as intended to limit or affect the inherent powers of the High Courts. Obviously the inherent power can be exercised only for either of the three purposes specifically mentioned in the section. This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the matter in question is not covered by any specific provision of the Code that Section 482 can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said section. In prescribing rules of procedure legislature undoubtedly attempts to provide for all the 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 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 recognises 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 recognised by Section 482, and even in regard to the High Court’s 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.
It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases which may possibly arise.
It has also been held that Section 482 cannot be invoked in non- criminal proceedings such as those under the Customs Act.
“Inherent jurisdiction”, “to prevent abuse of process”, “to secure the ends of justice” are terms incapable of definition or enumeration, and capable at the most of test, according to well established principles of criminal jurisprudence. “Process” is a general word meaning in effect anything done by the court. The framers of the Code could not have provided all the cases that should be included within the meaning of abuse of process of court. It is for the court to take decision in particular cases.
Conditions for Use of Inherent Power:-
There are several conditions laid down by various cases that indicate the circumstances under which this inherent power may be used. These conditions may be enumerated as follows:
1. The jurisdiction is completely discretionary. The High Court can refuse to use the power.
2. The jurisdiction is not limited to cases that are pending before the High Court. It can consider any case that comes to its notice (in appeal, revision or otherwise).
3. This power can be invoked only in an event when the aggrieved party is being unnecessarily harassed and has no other remedy open to it.
4. The High Court, under section 482, does not conduct a trial or appreciate evidence. The exercise of this power (although it has a wide scope) is limited to cases that compel it to intervene for preventing a palpable abuse of a legal process.
5. The High Court has the power to provide relief to the accused even if s/he has not filed a petition under section 482.
6. This power cannot be exercised if the trial is pending before the apex court and it has directed the session judge to issue a non- bailable warrant for arresting the petitioners.
7. The power under Section 482 is not intended to scuttle justice at the threshold but to secure justice.
8. This power has to be exercised sparingly with circumspection and in the rarest of rare cases, but cannot be held that it should be exercised in the rarest of rare cases – The expression rarest of rare case may be exercised where death penalty is to be imposed under Section 302 of IPC but this expression cannot be extended to a petition under Section 482 CrPC.
9. So long as inherent power of Section 482 CrPC is in statute, the exercise of such power is not impermissible.
10. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation or continuance of it amounts to abuse of the process of Court or quashing of these proceedings would otherwise serve the ends of justice.
11. Where the accused would be harassed unnecessarily if the trial is allowed to linger when prima facie it appears to Court that the trial would likely to be ended in acquittal.
12. In proceedings instituted on complaint, exercise of inherent powers under Section 482 CrPC to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same.
13. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.
14. All Courts, whether civil or criminal possess, in the absence of any express provisions, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice.
“To prevent abuse of process of any court”
Ordinarily HC will not interfere at an interlocutory stage of criminal proceeding in subordinate court but, HC is under an obligation to interfere if there is harassment of any person (Indian citizen) by illegal prosecution. It would also do so when there is any exceptional or extraordinary reasons for doing so.
Test to determine whether there has been an abuse of any court are:-
1. See whether a bare statement of facts of case would be sufficient to convince HC if it is a fit case for interference at intermediate stage.
2. Whether in the admitted circumstances it would be a mock trial if case is allowed to proceed.
Reasons HC can interfere:
1. Long lapse of time
2. Failure or impossibility to supply to accused, copies of police statements and other relevant documents- grounds for other relevant documents- grounds for HC to quash proceedings against accused.
“To secure ends of justice”
Eg. When a clear statutory provision of law is violated- HC can interfere. It is of vital importance in the administration of justice, and ensure proper freedom and independence of Judges must be maintained and allowed to perform their functions freely and fearlessly without undue influence on anyone, even SC. At the same time Judges and Magistrate should act with a certain amount of justice and fair play.
The SC in Madhu Limaye v. Maharashtra, has held the following principles would govern the exrcise of inherent jurisdiction of the HC:
1. Power is not to be resorted to if there is specific provision in code for redress of grievances of aggrieved party
2. It should be exercised sparingly to prevent abuse of process of any Court or otherwise to secure ends of justice
3. It should not be exercised against the express bar of the law engrafted in any other provision of the code.
It is neither feasible nor practicable to lay down exhaustively as to on what ground the jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure should be exercised. But some attempts have been made in that behalf in some of the decisions of this Court.
The inherent powers contemplated by Section 482 has to be used sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself.
The Supreme Court has reiterated the nature of its power thus:
“The powers conferred on the High Court under Article 226 and 227 of the Constitution and under Section 482 of the Code of Criminal Procedure have no limits but more the power more the cases and caution is to be exercised while invoking these powers. When the exercise of powers could be under Article 227 or Section 482 of the Code, it may not always be necessary to invoke the provisions of Article 226. Some of the decisions of this Court laying down principles of Articles 226 and 227 may be referred to.”
The following cases have been stated by the Supreme Court, by way of illustration wherein the extraordinary power under Article 226 or inherent power under Section 482 can be exercised by the High Court to prevent abuse of process of any court or to secure justice:
1. Where the allegations in the FIR/complaint, even if they are taken at their face value do not prima facie constitute any offence against the accused.
2. Where the allegations in the FIR or other materials do not constitute a cognizable offence justifying an investigation by the police under Section 156(1) of the code except under an Order of a Magistrate within the purview of Section 155(2).
3. Where the uncontroverted allegations in the FIR/complaint and the evidence collected thereon do not disclose the commission of any offence.
4. Where the allegations in the FIR or other materials do not constitute a cognizable offence but constitute a non- cognizable offence to which no investigation is permitted by the police without Order of a Magistrate under Section 155(2).
5. Where the allegations are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against the accused.
6. Where there is an express legal bar engrafted in any of the provisions of the Code or statute concerned (under which the proceeding is instituted) to the institution and continuance of the proceedings and/or where there is a specific provision in the code or in the statute concerned, providing efficacious redress for the grievance of the aggrieved party.
7. Where a criminal proceeding is manifestly attended with mala fide intention and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused with a view to spite him due to private and personal vengeance.
The Courts have been following these in dealing with requests for quashing criminal proceedings. The following principles in relation to the exercise of the inherent power of the High Court have been followed ordinarily and generally, almost invariably, barring a few exceptions:
1. That the power is not to be resorted to if there is a specific provision in the Code itself for the redress of the grievance of the aggrieved party;
2. That it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice;
3. That it should to be exercised as against the express bar of law engrafted in any other provision of the Code.
In most of the cases decided during several decades the inherent power of the High Court has been invoked for the quashing of a criminal proceeding on one ground or the other.High Court has no power to review own order its under Section 482 Cr.P.C.:-
(a) Court cannot alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error.
(b) As soon as judgment is pronounced or order is made by a Court, it becomes functus officio (ceases to have control over the case) and has no power to review, override, alter or interfere with it.
(c) Power of review is not an inherent power and must be conferred on a Court by a specific or express provision to that effect.