Paragraph numbers below are the court’s original numbering, recovered from the source text.
19. In the case of Raj Kapoor& Ors. v. State & Ors. (1980) 1 SCC 43, Justice Krishna Iyer, while distinguishing the power of the High Court under Section 397 vis-a-vis Section 482 of E Cr.P.C. observed.that Section 397 or any of the provisions of Cr.P.C. will ne>t affect the amplitude of the inherent power preserved in Section 482. Even so, easy resort to inherent power is not right except under compelling circumstances. Inherent power should not invade areas set apart for specific F power under the same Code.
20. In the light of the ratio laid down by this Court referred to hereinabove, we are of the considered opinion that the order passed by the trial court refusing to issue summons on the G application filed by the complainant under Section 319 of Cr.P.C. cannot be held to be an interlocutory order within the meaning of sub-section (2) of Section 397 of Cr.P.C. Admittedly, in the instant case, before the trial court the complainant's application under Section 31"9 of Cr.P.C. was rejected for the second time holding that there was no sufficient MOHIT ALIAS SONU v. STATE OF U.P. [M.Y. EQBAL, J.] evidence against the appellants to proceed against .them by A issuing summons. The said order passed by the trial court decides the rights and liabilities of the appellants in respect of their involvement in the case. As held by this Court in Amar Nath's case (supra), an order which substantially affects the rights of the accused or decides certain rights of the parties cannot be said to be 'an interlocutory order so as to bar a revision to the High Court against that order as contemplated under Section 397(2) of Cr.P.C. t
21. In the instant case as noticed above, when the C complainant's application under Section 319 of Cr.P.C. was rejected for the second time, he moved the High Court challenging the said order under Section 482 of Cr.P.C. on the ground that the Sessions Court had not correctly appreciated the facts of the case and the evidence brought on record. The complainant wanted the High Court to set aside the order after D holding that the evidence brought on record is sufficient for coming to the conclusion that the appellants were also involved in the commission of the offence.
22. In our considered opinion, the complainant ought to E have challenged the order before the High Court in revision under Section 397 of Cr.P.C. and not by invoking inherent jurisdiction of the High Court under Section 482 of Cr.P.C. Maybe, in order to circumvent the provisions contained in sub- : section (2) of Section 397 or Section 401, the complainant moved the High Court under Section 482 of Cr.P.C. In the event a criminal revision had been filed against the order of the Sessions Judge passed under Section 319 of Cr.P.C., the High Court before passing the order would have given notice and opportunity of hearing to the appellants.
23. So far as the inherent power of the High Court as contained in Section 482 of Cr.P.C. is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that inherent power of the court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged.
24. Courts possess inherent power in other statute also like the Code of Civil Procedure (C.P.C.) Section 151 whereof deals with such power. Section 151 of C.P.C. reads:- "Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of court."
25. This Court in the case of Padam Sen & Anr. v. State of Uttar Pradesh, AIR 1961 SC 218 regarding inherent power of the Court under Section 151 C.P.C. observed:- "The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore, it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict what has been expressly provided in the Code or against the intentions of the Legislation. It is also well recognised that the inherent power is ·not to be exercised in a manner which will be contrary to or different from the procedure expressly provided in the Code."
26. In a Constitution Bench decision rendered in the case of Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hira/al, AIR 1962 SC 527, this Court held that :- MOHIT ALIAS SONU v. STATE OF U.P. [M.Y. EQBAL, J.] "The inherent jurisdiction of the Court to make orders ex A debito justiciae is undoubtedly affirmed by S.151 of the Code but inherent jurisdiction cannot be exercised so as to nullify the provision of the Code of Civil Procedure. Where the Code of Civil Procedure deals expressly with a particular matter, the provision should normally be regarded B as exhaustive."
27. The intention of the Legislature enacting the Code of Criminal Procedure and the. Code of Civil Procedure vis-a-vis the law laid down by this Court it can safely be concluded that C when there is a specific remedy provided by way of appeal or revision the inherent power under Section 482 Cr.P.C. or Section 151 C.P.C. cannot and should not be resorted to.
28. The second question that needs consideration is as to whether the High Court exercising its revisional jurisdiction or D inherent jurisdiction under Section 482 Cr.P.C., while considering the legality and propriety of the order passed under Section 319 of Cr.P.C. Code is required to give notice and opportunity of hearing to the person in whose favour\ some right accrued by virtue of order passed by the trial court. In other E words, whether it would be justified for the High Court to entertain a petition under Section 482 of Cr.P.C. and pass order to the prejudice of the accused or other person (the appellants herein) without giving notice and opportunity of hearing to them.
29. Indisputably, a valuable right accrued to the appellants F by reason of the order passed by the Sessions Court refusing to issue summons on the ground that no prima facie case has been made out on the basis of evidence brought on record. As discussed hereinabove, when the Sessions Court order has been challenged, then it was incumbent upon the revisional court G to give notice and opportunity of hearing as contemplated under . sub-section (2) of Section 401 of Cr.P.C. In our considered opinion, there is no reason why the same principle should not be applied in a case where such orders are challenged in the High Court under Section 482 of Cr.P.C.
30. Recently, a 3-Judge Bench of this Court in the case of Manharibhai Muljibhai Kakadia and Another v. Shaileshbhai Mohanbhai Patel and Others (2012) 10 sec 517 considered the question as to whether in a case where an order of the Magistrate dismissing the complaint under Section 203 of Cr.P.C. at the stage under Section 200, the accused or a person who is suspected to have committed the crime is entitled to hearing by the revisional court. After considering all the earlier decisions, in the case of P. Sundarrajan v. R. Vidya Sekar (2004) 13 SCC 472, Raghu Raj Singh Rousha v. c Shivam Sundaram Promotors (P) Ltd. (2009) 2 SCC 363 and A.N.Santhanam v. K. Elangovan (2012) 12 SCC 321, this Court held as under:- "53. We are in complete agreement with the view expressed by this Court in P. Sundarrajan, Raghu Raj Singh Rousha and A.N. Santhanam. We hold, as it must be, that in a revision petition preferred by the complainant before the High Court or the Sessions Judge challenging an order of the Magistrate dismissing the complaint under Section 203 of the Code at the stage under Section 200 or after following the process contemplated under Section 202 of the Code, the accused or a person who is suspected to have committed the crime is entitled to hearing by the Revisional Court. In other words, where the complaint has been dismissed by the Magistrate under Section 203 of the Code, upon challenge to the legality of the said order being laid by the complainant in a revision petition before the High Court or the Sessions Judge, the persons who are arraigned as accused in the complaint have a right to be heard in such revision petition. This is a plain requirement of Section 401 (2) of the Code. If the Revisional Court overturns the order of the Magistrate dismissing the complaint and the complaint is restored to the file of the Magistrate and it is sent back for fresh consideration, the persons who are alleged in the complaint to have committed the crime have, however, no MOHIT ALIAS SONU v. STATE OF U.P. [M.Y. EQBAL, J.] right to participate in the proceedings nor are they entitled to any hearing of any sort whatsoever by the Magistrate until the consideration of the matter by the Magistrate for issuance of process. We answer the question accordingly. The judgments of the High Courts to the contrary are overruled."
31. The same question came up for consideration before different High Courts some of which we would like to refer hereinbelow. In the case of Sayeed Bhagat and Others v. State of Andhra Pradesh 1999 Crl.L.J.4040, a Bench of the Patna High Court noticed the facts of the case where an application was filed in a criminal case under Section 319 of Cr.P.C. to summon the remaining accused persons who were named by the witnesses. The Magistrate refused the said prayer mainly for want of sufficient evidence. The said order was challenged in revision by the complainant. The revisional court set aside the order of the Magistrate without hearing the petitioners against whom prayer was made for issuance of summons. When the matter came up before the High Court, the Bench held as under:- "8. In the instant case also though the jurisdiction of the Court to summon a person under Section 319 of the Cr.P.C. cannot be questioned, the revisional Court, in my view should have heard the petitioners before passing the impugned order because the same has prejudiced them."
32. In a similar case in Satish Chandra Dey v. State of Jharkhand & Anr. 2008 (2) AIR Jhar R 330, the order of Sessions Judge was challenged in the High Court under Section 482 of Cr.P.C. on the ground inter alia that the Sessions Judge directed the Magistrate to summon the petitioner to face trial along with other accused though the trial ·court had refused to exercise its jurisdiction to summon the petitioner to face trial. The question raised before the High Court was that the revisional court has erred in law in passing [2013) 7 S.C.R. A such order without giving opportunity of hearing to the petitioner. c Allowing the said petition, the High Court held as under :- "10. Thus it is evidently clear from the relevant provision of law that no order to the prejudice of an accused or any other person can be made unless the said accused or the said persons have been given an opportunity of being heard. 11. In the instant case also learned Sessions Judge in absence of the petitioner has passed the impugned order whereby he directed the trial Court to implead the petitioner as an accused in the proceeding which in view of the provision as contained in Sections 399/401/401 (2) of the Code of Criminal Procedure is illegal. 12. In the result, this application is allowed and the impugned order dated 23.6.2006 s set aside and the case is remanded to the learned Sessions Judge, Bokaro for hearing afresh after giving due notice to the parties so that the same be disposed of in E accordance with law." 33. Since the reasoning discussed hereinabove would be suffice to dispose of the present appeal, we do not wish to go into the merits of the case with regard to the scope of the F provisions of Section 319 of Cr.P.C. 34. After giving our anxious consideration in the matter, we conclude by holding that the High Court has committed a grave error in passing the impugned order for the reasons given hereinbefore. We, therefore, allow this appeal, set aside the G order of the High Court and remand the matter back to the High Court to consider the matter afresh after giving an opportunity of hearing to the present appellants. R.P. Appeal allowed.