PARTf ~ III

CONSTfITUTION~ TfHE CODE

AND INHERENT POWERSS
 155

CHAPTER - III

CONSTITUTIONAL DIMENSIONS
OF INHERENT PO\vERS
The advent of the Constitution of India in 1950 brought India
on the map of the Republics of the world. Establishment of the
Supreme Court of India under that Constitution brought India's
jurisprudential independence. The superiority of Privy Council was
stopped. The Supreme Court became the trend-setter in formu-
lating an agenda for the administration of justice. This is notwith-
standing the criticism that on 26th January, 1950 it was Lord
Macaulay's dream came true1, belying Mahatma Gandhi's dream.2
i. Supreme court in the Pioneering Position

For the purpose of this study, it is more important to note

that the Supreme Court as a pioneering judicial institution came
to occupy an anchorman's position with High Courts discharging

1. Maculay's Minutes:-
The destinies of our Indian Empire are covered with thick darkness ... It may be
that the public mind of India may expand under our system, till it has outgrown
that system: that by good government we may educate our subjects into a ca-
pacity for better government; that having become instructed in European knowl-
edge they may, in some future age, demand European institutions. Whether
such a day will ever come, I know not. But never will I attempt to avert or retard
it. Whenever it comes, it will be the porudest day in English history. H.M.
Seervai, Constitutional Law of India-Volume 1 (1983) P 1.
2. Gandhiji wrote in Young India,
"I shall work for an India in which the poorest shall feel that it is their country, in
whose making they have an effective voice, an India in which there shall be no
high class and low class of people, an Indian in which all communities shall live in
perfect harmony.... There can be no room in such an India for the curse of
untouchability... Women will enjoy the same rights as men ... This is the India of
my dreams. Bipin Chandra, Freedom Struggle (1972) - Published by National
Book trust, at pp. 129 - 130.
 156

equally important constitutional obligations. It is correctly said

by Granville Austin that judiciary was to be an arm of the social
revolution. 3

"The members of the constituent Assembly brought to the

framing of the judicial provisions of the Constitution an
idealism equalled only by that shown towards the Funda-
mental Rights. Indeed, the Judiciary was seen as an ex-
tension of the Rights, for it was the courts that would give
the Rights force. The Judiciary was to be an arm of the
social revolution, upholding the equality that Indians had
longed for during colonial days, but had not gained - not
simply because the regime was colonial, and perforce re-
pressive, but largely because the British had feared that
social change would endanger their rule".4

i. Superior Courts- the Same Sources of Power

In the Indian scenario both the Supreme Court and High Courts
draw power from the same source, the Constitution of India. It is
one of the virtues of the concept of Rule of Law that 'the two
institutions while declaring law are themselves under the Rule of
Law. But, between the two, the Supreme Court is poised to have
a superior position due to reasons of jurisdiction. The fundamental
law is the Constitution, the prestigious institution is the Supreme
Court and the doctrine which helps is the judicial review.

With powers of the judicial review the court has a means for
ascertaining the inherent powers. These powers are vested with

3. Granville Austin, Indian Constitution: Cornerstone of a Nation, (1966). p 164

4. Ibid.
 157

the superior courts, because they represent the least dangerous

branch. In a similar context, about American Supreme Court,
Bickel says5:

"Interpretation of the constitution by the court made all

the differences. The least dangerous branch of the Ameri-
can Government is the most extraordinarily powerful court
of law the world has ever known. The power which distin-
guishes the Supreme Court of the United State is that of
constitutional review of actions of the other branches of
the Government, federal and state, curiously enough, this
power of judicial review, as it is called, does not derive
from any explicit constitutional command. The authority
to determine the meaning and application of a written con-
stitution is nowhere defined or even mentioned in the docu-
ment itself. This is not to say that the power of judicial
review cannot be placed in the Constitution, merely that it
cannot be found there"6

It may be true that when the court in valid~ting the action of a

state legislature it is acting against the majority will with in the
given jurisdiction. the court though represents the national will, it
does not do so as the legislature does through electoral
responsibility. There is opinion on Judicial Review, endorsing
Bickel's view, which reads,
5. A.M. Bickel, The Least Dangerous Branch, (1962) p.1
6. Id. at p.33. "But, the institution of the judiciary needed to be summoned up
out of the constitutional vapours, shaped, and maintained, and the Great
Chief Justice, John Marshal! - not single-handed, but first and foremost -
was there to do it and did. If any social process can be said to have been
'done' at a given time and by a given act, it is Marshall's achievement. The
time was 1803, the act was the decision in the case of Marbury v. Madison."
 158

"There has been in recent times, one major attempt to

reexamine judicial review's function, that of Alexander
Bickel in The Least Dangerous Branch. Responding si-
multaneously to inadequacies in the legal foundation of
judicial review as expressed in Alarou(Yand to deep and
continuing public acceptance of the practice, Bickel ar-
gued that a principled foundation for judicial review could
be found only by a reformulation of its function. He pro-
ceeded to identify this function as the defense of funda-
mental values or long-term principle. 7

The doctrine of judicial review has aided the Supreme Court

to achieve a paradigm shift in all departments of jurisprudence.
Even when the Supreme Court is theoretically amenable to the
Rule of Law, practically the privilege to say what is law is re-
served by the Supreme Court. The heartland of Supreme Court's
judicial creativity is occupied by the interpretation of the Consti-
tution and the laws. From its inception, the Supreme Court dis-
charges its prolific function of exposition of law. The radiance
emitted by it enlightens the High Courts and all other institutions.
The Supreme Court is entitled to develop, transcend, mutate and
invent doctrinaire positions as it is not bound by its own deci-
sions. a
ii. Background of Distrust

The Supreme Court was not trusted by the constitution mak-

ers. The mood of the Constitutant Assembly was not encourag-
ing for the Supreme Court. According to Jawaharlal Nehru:

7. Silvia Snowis, Judicial Review and law of the Constitution, (1990), pp. 11-12
8 Bengal Immunity co. Lld v. State of Bihar. AIR 1915S-SC 661
 159

"No Supreme Court and no judiciary can stand in judg-

ment over the sovereign will of Parliament representing
the will of the entire community. If we go wrong here and
there it can point it out, but in the ultimate analysis, where
the future of the community is concerned no judiciary can
come in the way. And if it comes in the way, ultimately the
whole Constitution is a creature of Parliament.. .. But it is
obvious that no court, no system of judiciary can function
in the nature of Third House, as a kind of Third House of
correction. So it is important that with this limitation the
judiciary should function. 9

As per T.T. Krishnamachari:

..... that the judiciary should not place itself as an imperium

in imperio and I am fully satisfied that the provisions that
have been made in this Constitution will not make the ju-
diciary an imperium in imperio. 10

He is quoted to have said:

"I would rather trust five hundred people with less than
even mediocre abilities than four or five people with per-
haps some claim for superior abilities but at the same
time having their own personal prejudices. 11

In the words of Dr. Ambedkar:

"I do not see how five or six gentleman sitting in the Fed-
eral or Supreme Court examining laws made by the legis-
9 As quoted in Gobind Das, Supreme Court in Quest of /dentity,(1987)
10 Quoted id. at p. 8
11. Quoted id. at p. 9
 160

lature and by the dint of their own individual conscience

or their bias or their prejudice be trusted to determine
which law is good and which law is bad. 12

At the inaugural function Attorney General M.C. Setelvad sa'id:

"The task before us all is the building of a nation alive to

its national and international duties, consisting of a strong
central authority and federal units, each possessed of
ample power for the diverse uses of a progressive people.
In the attainment of this noble end, we hope and trust
that this Court will play a great and singular role and es-
tablish itself in the consciousness of the Indian people" 13

In U.S.A. also the attitude of the executive was the same.

But, Marshall,C.J. turned the tables on the executive with
Marbury v. Madison 14 in 1803,where he held that the Supreme
Court had the power to invalidate any Act of Congress if it vio-
lated the Constitution. He established the Supremacy of the writ-
ten constitution over legislative Acts. And the Supreme Court had
the power to consider if any law was void or n()t. He established
the principle of judicial supremacy over legislature as a funda-
mental part of American law, almost as if the Constitution con-
tained this specific dictum. 15

The court which decided the cases like A.K. Gopa/an v. State
of Madras,16 Keshavananda Bharati v. State of Kera/a,l? MOJ1eka
12, Qouted id. at p. 9
13. Qouted id. at p. 10
14. (1803) 1 Cranch 137. 177-179 2l. ed. 60 cited in H.M. Seervai Constitutional
Law of India, (1983) Vol. 1.
15. Also see supra n. 9 p. 13
16 AIR 1950 SC 27.
17 AIR 1973 SC 1461
 161

Gandhi v. Union of India, 18 Pepsi Foods case 19 is the

same. But, the laws declared through these decisions display a
radical shift in the quality,20 This phenomenon is detected in the
interpretation of criminal laws too. Its impact in articulating the
dialectics of the inherent powers and inherent jurisdiction is ex-
plained hereunder. Consequently, the impact of an active consti-
tutional law jurisprudence had its bearing also on the inherent
powers of the High Court under section 482 Cr.P.C. This has been
in stark contrast to the apprehension expressed by the constitu-
tion makers.21

According to Palkhivala, there is a crisis of public faith in ju-

diciary and it is time for national introspection.He says,

"The poisoning of the wee spring of justice began in 1973

when the three seniormost judges of the Supreme Court,
who were independent enough to decide against the ex-
ecutive in Kesavananda's case, were superseded upon
the Chief Justice's office falling vacant"22

The judiciary was embarrassed. Even. s'Ome judges of the

Apex court revealed the virus affecting judiciary the decision in
A.D. M. Jabalpur v. Shivakanth Shukla 23 in 1976 could not be swal-

18 AIR 1978 SC 597

19. 1998 SCC (Cri) 1400
20. Prof. Upendra Baxi: "Constitutional Quiksands of Keshavandanda Bharati
and the Twentyfifth Amendment". It was stated that the decision in Menaka
Gandhi's case supra. n.18 marked an obituary note to the Gopalan's decision,
supra.n.16 (~I~:"4-) I ,'~c.. C.50\A"'04--~
21. Gobind Das, supra. n.g at p.13
22. Nani A. Palkhivala, We The Nation (1994)p. 219
23. ADM Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207
 162

lowed by the public easily. All these according to Sri Palkhivala

led to a PUblit~nchantment,
"Public disenchantment with judicial administration has
been vastly aggravated by the recent developments in the
Bombay High Court. If you lose faith in politicians, you
can change them. If you lose faith in judges, you still have
to live with them. The ineluctable fact is that the conduct
of some judicial officers in different courts has been far
from exemplary in terms of ethics" 24

iii. New Horizon for Inherent Powers and Justice

The period from 1950 witnessed the rewriting of several fun-

damental principles. The concept of locus-standi was liberalised.
The meaning of State under Article 12 was expanded. The
liability of the State intensified rarest of the rare case theory in
awarding Capital punishment was postulated the ,".'1 rights of
the accused projected under the Human Rights angle. Similarly
the rights of the injured also got amplified by the new dimen-
sions of victimology. New offences imposing strict liability came
into being. High Courts have got innumerable opportunities to
consider the application of inherent powers. Rights and liabili-
ties are adjudicated even without the aid of evidence.

Development of constitutional law having significance to the

analysis of the inherent powers under section 482 of the Cr. P.C.
can be discussed after delineating them into three components.
Firstly, interpretation given to the concepts of law, equality, free-
dom, right to life and personal liberty, rights of a person pros-

24. Supra. n. 22
 163

ecuted, principles governing preventive detention. Articles 13, 14,

19,20, 21 and 22. Secondly, principles of judicial review encap-
sulated in Articles 226 and 227. Thirdly, inherent powers of the
Supreme Court under Articles 32, 129, 136, 141, 142. A discus-
sion of these provisions in the context of the inherent powers of
the High Court under section 482 of Cr.P.C. would help to under-
stand the impact of Constitution on the inherent powers of the
High Court.

The Constitution of India is regarded as a document of rare

merit containing the manifesto for India's social reconstruction
and social revolution.

"The Indian constitution is first and foremost a social docu-

ment. The majority of its provisions are either directly
aimed at furthering the goals of the social revolution or
attempt to foster this revolution by establishing the con-
ditions necessary for its achievement." 25

This attitude to the constitution and judiciary is against the

reservation expressed about the court. 26

iv. Liberal Interpretation of equality and Liberty Clauses

A glance into the interpretation of the Constitution of India

over the decades is helpful to keep the aspect in a clear per-
spective. The interpretation of Articles 14, 19 and 21 in a liberal
and detailed manner has helped to create an atmosphere of lib-
eralism and Rule of Law. The Supreme Court of India which has
made pioneering contribution has been involved in a true intel-

25. Granville Austin, supra. n.3 p. 50

26. Ref. supra n. 21
 164

lectual exercise to articulate and illustrate the immense possibil-

ity of these provisions. Article 14 postulates the concept of equal-
ity. Any action vitiating the concept of the equality is for that matter
alone tainted by illegality, irregularity and arbitrariness.

Freedom under Article 19 is evaluated against the background

of equality principle under Article 14. The freedoms recognize
the individuals worth. To induce logic, reasonable limitations are
provided for the individual freedoms. Interpretation of article 21
and fusing together the import of the Article 14, 19 and 21 after
the decision of the Maneka Gandhi's case in 1978 opened a
new era of constitutionalism. Judges with high visibility of social
security began to address basic aspects of human freedom and
existence. Right to life and personal liberty and the tempo cre-
ated in the interpretation by the Supreme Court permeated every
department of human existence. Procedural law is given a sub-
stantive dimension in Article 21. Every person has a right to be
subjected to the procedure established by law while dealing with
his right to life and personal liberty. The authority of the State is
-
well constructed with meaningful interpretation of the rights of
the individuals. The right is available to all persons. Even per-
sons undergoing punishment in Jail get the benefit of Article 21.
In Charles Sobharaj v. Superintendent Central JaW 7 he Supreme
Court held that a prisoner does not shed his rights at the prison
gates. The story of the Supreme Court's engagement with per-
sonal liberty starting from A.K. Gopalan's case supra continues
through Maneka Gandhi's case supra and a catena of decisions

27. (1978) 4 SCC 104. Also see Sunil Batra v. Delhi Administration, (1978) 4
SCC 494; D.K. Basu v. State of West Bengal, AIR 1997 SCC 610.
 165

addressing various aspects of personal liberty including right to

go abroad, right to privacy, right against solitary confinement,
right against bar fetters, right to legal aid, right to speedy trial,
right against handcuffing, right against delayed execution, right
against custodial violence, right against public hanging and so
on. The fertile area opened by the Supreme Court with the inter-
pretation of Article 21 has immensely influenced the administra-
tion of criminal justice also. Criminal justice administration is the
one which evokes public interest and curiosity as the pain under-
gone by the person and the poignancy felt by the social ego are
large.
v. New Avenues of Humanism - Impact on Criminal justice

The remedies for the violation of fundamental Rights con-

ferred by Part III of the Constitution is provided under Article 32
of the Constitution. The remedies are also part of the Funda-
mental Rights. The Supreme Court in proceedings under Article
32 of the constitution has opened new avenues of humanism. A
most fundamental question engaging the attention of the Supreme
Court in proceedings under Articles 32, 136, 142 was the pri-
macy of the fundamental rights over directive principles of State
policy and vice versa. The perceived position initially was that
Fundamental Rights weighed over the directive principles. Then
the shift was to a position of equanimity between the two. Then,
further, the primacy of directive principles over fundamental rights
gradually crystallized. Similarly, under Articles 226 and 227 of
the Constitution the High Courts acted as Courts of Record ex-
ercising a great degree of judicial review.

The above situation had its impact in the administration of

 166

criminal justice also, "The range of judicial review recognized in

the superior judiciary in India is perhaps, the widest and the most
extensive known to the world of law" .28 This area involves a strong
precipitation of the inherent powers of the court. In the context of
doing complete justice on the one hand and interpretation of the
Constitution and the laws on the other hand, the Supreme Court
and High Court have been banking heavily on their inherent pow-
ers. The extraordinary jurisdiction vested in the courts through
the constitutional provisions has got great support from the in-
herent powers of the court. This has helped the courts to shed
formalism to a great extent and concentrate more on securing
the ends of justice. This is made possible because the language
used in Articles 32 and 226 of the Constitution is very wide and
the powers of the Supreme Court as well as of the High Courts in
India are extensive. 29 The jurisdiction of the Supreme Court un-
der Article 136 vests discretionary powers in the court not sub-
jected to any limitation.

Despite the fact that the Supreme Court's power under Ar-
~

ticle 136 is not as a regular court of appeal which a party can

approach as of right. But, the power is there in cases where the
interference of the Supreme Court is necessary to prevent grave
or serious miscarriage of justice.
vi. Power to give Complete Justice as Inherent

Article 1.42 gives a more incisive power to the Supreme Court

to make any other order to do complete justice. It is the explicit
expression of the inherent powers of the Supreme Court. The

28. Durga Das Basu, Shorter Constitution of India, (1996), p. 270.

29. Ibid.
 167

power under Article 142 to do complete justice coupled with the

plenary and residuary power under Articles 32 and 136 embraces
the power to quash criminal proceedings pending before any
court. 30 It is an ancillary power with no limitation. 31

No statutory provision can curtail this plenary power of the

Supreme Court as decided by the Supreme Court in Anis v. Union
of India,32 Union Carbide v. Union of India,33 Oelhi J.S.A. v. State
of Gujarath,34 Probably the only limitation is that the Supreme
Court cannot do anything to do justice to one party which affects
the substantial rights of the other party, ego a fundamental right.
The Supreme Court had occasion to consider this aspect in Arjun
v. JrutJ1adas,35 Kamala v. Hem,36 Antulay v. NaJ k 37 .
vii. Inherent Power of Superior Courts

The above reference to the inherent jurisdiction of the Su-

preme Court sheds light on the constitutional mandates of the
Supreme Court recognizing its inherent powers. Similar provi-
sions saving the inherent powers of the High Court are provided
in the Constitution. Article 225 saves the inherent powers of the
existing High Courts. This is subject to the provision of any law
subsequently passed by the legislature. The rules of procedure

30. Id at. p. 450. Reference is made to Delhi Judicial Service Association v.

State of Gujarath, AIR 1991 S.C. 406, Union Carbide v. Union oflndia, (1991)
5 SCC 584.
31. Nanavathi v. State of Maharashtra, AIR 1961 S.C. 112.
32. (1993) 2 U.J.S.C. 305.
33. 1991 Supp. (1) S.C.R. 251.
34. (1991)4SCC406.
35. (1989) 4 SCC 612.
36. (1989) 3 SCC 145.
37. (1988) 2 SCC 602.
 168

or jurisdiction of the High Court remained unaltered as it stood

before the commencement of the Constitution. This has refer-
ence to the jurisdiction of the High Court, under Letters Patent
which is subject to appropriate legislation. Until contrary legisla-
tion is made Letters Patent Appeals continue to be maintainable. 38
The inherent jurisdiction of the High Court is saved. Article 225
recognizes the reality of inherent powers of the High Court in the
context of a written constitution.

Articles 226 and 227 confer Plenary, summery, preliminary,

prerogative and fundamental power on the High Court. All these
are synonyms for the inherent powers. It can very well be submit-
ted that the inherent powers of the High Court recognized in the
special original jurisdiction form the heartland of the High Court's
power. This power is discretionary. But, discretion when forms a
part of the inherent powers sets as its objective a redressal of
violation of the fundamental rights or any other rights of the per-
son. It is also the power to prevent the abuse of the process of
the court and to secure the ends of justice. The power is inter-
changeable for the one saved and preserve-d in section 482 of
the Code of Criminal Procedure. 39

When the inherent powers of the Supreme Court under Ar-

ticle 142 to do complete justice are compared with the inherent
powers of the High Court under Article 226 to have judicial re-
view, the objective of both is the process of administration of

38. 0.0. Basu, Shorter Constitution of India,(1996) p. 525. Referes to

Shivarudrappa v. Kapurchand, AIR 1965, Mys. 76; Board v. Sf. Thomas
School, AIR 1984 Cal. 208; Chunilal v. Chief Justice, AIR 1972 Cal. 470.
39. Ibid. Refers to Sitarama v. State of A. P. AIR 1959 SC 359; Hari \I. Chief
Conservator, AIR 1959 Mad. 406.
 169

justice. The Supreme Court can pass any order to do sUbstantial

justice. The High Court under Article 226 of the constitution, can
only guide the decision making process. This convenient appre-
ciation of the discretionary power of the High Court is given a
more concrete character by making it interchangeable with the
power under section 482 Cr.P.C. But, under Articles 226 and 227
also the emphasis is given to justice. Formality takes second
place. The dynamism of the inherent powers is realised while the
same is applied. The High Court is allowed to have a substantial
latitude in applying the powers. If the petitioner has asked for a
relief, in a very wide form the court would issue the order in proper
form. The obligation of the High Court to grant the fundamental
right of the citizen is equal to that of the Supreme Court. 40

Over the past four or more decades of application of the in-

herent powers by the High Courts the doctrine of judicial review
has been given a great amount of credibility. Almost all aspects
of the State power has been scrutinised by the High Court under
its jurisdiction. Even when the Supreme Court could only express
inability the High Court has come forward to the rescue of the
affected person.41

The power of the High Court under Articles 226 and 227 has
permeated the administration of criminal justice also. This is the
meeting point of the inherent powers of the High Court under sec-
tion 482 Cr.P.C. and the original jurisdiction of the High Court
under Articles 226 and 227 of the Constitution. The commence-

40. Pepsi Foods Ltd. & another v. Special Judicial Magistrate and others -
(1998) 5 SCC 749.
41. Yasin v. Town Area Committee (1952) SCR 572.
 170

ment of the proceedings initiated in a criminal court can be inter-

fered under Article 226 as well as under section 482 of Cr.P.C.42
But, the same amount of caution as is observed in the exercise
of the powers under section 482 of Cr.P.C. is observed under
Articles 226 and 277 also. The proceedings pending before a
trial court can be interfered with only in the rarest of rare cases. 43
If one examines the roots of the power of the High Court under
Articles 226 and 227 here also the ultimate point is equity. In the
exercise of the inherent powers equitable considerations have
great impact. The Supreme Court said so in Hadibandh v. State
of Orissa,44 and Banarsidas v. State of U.P.4S Equity is compan-
ion of justice, the presence of one in a situation allows the per-
formance of the other. 46

viii. Common Ground of Supervisory and Inherent Powers

The supervisory power of the High Court under Article 227 of

the Constitution is a well established jurisdiction which shares its
qualities with the inherent powers of the High Courts under section
482 of Cr. P.C. Superintendence is not merely administrative in na-
ture, it is judicial supervision. The scope of this power of the High
Court came under the scrutiny by th Supreme Court in earlier period
in cases like Waryam v. Amar,47 and Banerjee v. P.R.

42. ADM Jabalpur v. Shivkant Shukla. AIR 1976 se 1207

43. Pepsi Foods case. (1998) 5 SCC 749.
44. State of Bihar v. P.P. Sharma, 1992 Supp (1) SCC 222. State of Haryana v.
Bhajanla/, 1992 Supp (1) SCC 335.
45. 1984 Supp. SCC 204.
46. Dwaraka v. Union of India, AIR 1990 SC 428;State of Bihar v. Sanjay, AIR
1990 SC 749; Dwaraka v. Union of India AIR 1990 S.C. 428 ;Kini v. Union of
India 1985 Supp SCC 122; Narayani v. State of Kera/a 1989 Supp SCC 212.
47. AIR 1954 S.C. 215.
 171

Mukherjee,48 In a Rule of Law Society the inferior courts shall

not be allowed to run berserk, and the power under Article 227
provides for an effective control. In the administration of crimi-
nal justice, the inherent powers under section 482 Cr. P.C. exist
for this purpose and that is the reason for common grounds be-
tween the powers under Article 227 and section 482 of Cr.P.C.

The supervisory jurisdiction of the High Court is in the light of

the above explanation, the staple component of the inherent pow-
ers. It makes the atmosphere congenial for the High Court to
exercise inherent powers. The expression "All Courts" in the Ar-
ticle 227 includes criminal courts also. Therefore, the power is
available to the supervision of criminal judicial power also. More-
over, the term 'Court' is not defined in the Constitution. That quali-
fies all courts including criminal courts to come within the ambit
of Article 227. So also, securing the ends of justice, is the objec-
tive of inherent powers. It was so held by the Supreme Court in
Baldev Singh v. State of Bihar,49 and Gopa/ Oas v. State of
Assam.50 The application of the High Court's inherent powers un-
der Article 227 to set aside a conviction not supported by any
evidence and award without jurisdiction was considered. The
power of the High Court under Article 227 is not circumscribed
by the conditions laid down in section 401 of the Cr.P.C. This
enables the High Court to stay a criminal proceedings pending
decision of civil suit relating to the same subiect matter;51 and to

48 1953SCR302.
49. AIR 1957 SC 612.
50. AIR 1961 SC 986.
51 Dharmeshar v. State. AIR 1952 Assam. 78.
 172

quash orders passed without jurisdiction. 52 Similarly certain con-

servative thinking with regard to the exercise of the discretionary
powers under Article 227 vis-a-vis the revisional powers under
section 387 Cr.P.C. are being liberalised and reformulated. 53

The attitude of the Supreme Court has perceptibly changed

from Jagir v. Ranbir,54 to Krishnan v. Krishnaveni. 55 In the light of
inherent powers of the High Court the jurisdiction created and
recognised under Articles 226, 227 and section 482 of Cr.P.C.
share the same ingredients. Regarding appeals from the deci-
sion of the High Court on proceedings under Article 227 the ac-
cepted view is that, only the Supreme Court has appellate juris-
diction. This is because the power under Article 227 is mainly
regarded as revisional in nature. But, a decision of a single judge
in a petition under Article 226, is appealable. The question of the
competency of Letters Patent Appeal from an order passed by a
Single Judge in exercise of the power under Article 227 is con-
sidered and decided in the negative by the High Court,56 and en-
dorsed by the Supreme Court. 57 Here is a flexible situation. Noth-
ing prevents a party from labelling his petition as both under Ar-
ticles 226 and 227. If the order of the Single Judge of the High
Court is substantively under Article 226, Letters Patent appeal to
a division bench will lie. This is because the application is treated

52. M.C. Mehta v. Union of India, AIR 1988 SC 1115

53. Geevarghese v. Chacko, AIR 1957 T.C. 256.
54. AIR 1979 S.C. 381.
55. AIR 1997 S.C. 987. Also see supra n. 110 ch. 11
56. In Re Tirupuliswamy, AIR 1955 Mad. 287; Aidal Singh v. Karan Singh, AIR
1957 All. 414 (FB); Sukhendra v. Harekrishna, AIR 1953 Cal. 636, Braham
Dutt v. People's Co-op. Society, AIR 1961 Punj. 24.
57. Supra n. 55
 173

as one filed under Article 226 of the Constitution only. Thus an

analysis of the provision of the Constitution dealing with the Sum-
mary and plenary powers of the Supreme Court and the High Court
would shed considerable light on the inherent powers having ac-
quired more prestige, and prominence. The real impact of the
Constitutional provision on the development of the inherent pow-
ers of the High Court is to be understood in this context.

ix. Dynamic Jurisdiction of High Court

The impact of the constitution on the inherent powers of the

High Court under section 482 of the Code of Criminal Procedure
is that the High Court is placed with a dynamic jurisdiction. The
vicissitudes undergone by the power of the court in the course of
interpretation of the Constitution has made the functioning of the
court more transparent. The Supreme Court gets opportunity to
closely watch the High Court treading through permissible or im-
permissible lines. Arbitrary use of inherent powers would compel
the Supreme Court to put a check on it. This applies to the ad-
vantage as well as disadvantage. If the jurisdictions under Article
226 and section 482 Cr.P.C. share identical characteristics, their
limitation also ought to be common. Appreciation of evidence is
banned in both jurisdictions. Disputed questions of fact are not
to be adjudicated upon while invoking the inherent powers of the
High Court. The High Court is not expected to indulge in interpre-
tation of the facts to arrive at a conclusion. Such petitions are
not maintainable and are liable to be dismissed at the thresh-
01d. 58

58. Umaji v. Radhikabai, AIR 1986 se 1272; Sushila Bai v. Nihalchand, 1993
Supp (1) sce 11; R.D.C.C.B. v. Dinkars, 1993 Supp (1) sce 9.
 174

x. No Arbitrary Use of Inherent Powers

While exercising the power under section 482 of Cr.P.C. the

High Court is to desist from entertaining a petition requiring
evidentiary corroboration. Whatever be the nature and name of
the power, the jurisdiction under which the power is used cannot
be unlimited, unethical or unguided. This underlines the supervi-
sory nature of the powers under Article 226.

In State of M.P. v. M.V. Vyavasaya and co. 59 the Supreme

Court has castigated the disregard of the norms gover~ing the
exercise of the writ jurisdiction. Passing repeated interim orders
of stay in a case is an arbitrary use of inherent powers. The Su-
preme Court has relied on its own decision 60 as well as that of
the House of Lords. 61 The power under Article 226, like the power
under section 482, Cr.P.C., is not appellate, it is only supervi-
sory. This is not to be oblivious of the salutary influence of the
constitutional principles on the inherent powers. The Supreme
Court in Pepsi Foods Ltd. and another v. Special Judicial Magis-
trate and others 62 has created a conspectus on the dynamics of
jurisprudence through mutating the Judicial process in Article 226
and 227 of the Constitution with section 482 of the Code of Crimi-
nal Procedure. In a legal system symphonied and synchronised
by the cadence of procedure established by law and Rule of Law
there is no scope for any jarring notes of the abuse of the pro-

59. 1997 (1) SCC 156.

60. Ibid at p. 163. Also relied on Thar Shankar v. Oy. Excise and Taxation Com-
missioner, 1975 (1) SCC 737
61. Chief Constable of the North Wales Police, v. Evans, [1982] 3 All E.R.
141,H.L.
62. (1998) 5 SCC 749. Also see infra n. 63
 175

cess or infraction of the ends of justice. Section 482 imports the

concept of judicial review of criminal proceedings. Therefore the
court said;

"The power conferred on the High Court under Article 226

and 227 of the Constitution and under section 482 of the
Code have no limits bu't more the power more due care
and caution is to be exercised while invoking these pow-
ers. When the exercise of power could be under Article
227 or section 482, of the Code it may not always be
necessary to invoke the provision under Article 226 of
the Constitution" 63 •

In Pepsi Foods Ltd., the principles discussed are the powers

of the High Court under Articles 226 and 227 of the Constitution
of India, and under Section 482 of the Code of Criminal Proce-
dure, 1973. The petition filed before the Lucknow Bench of the
Allahabad High Court was under Articles 226 and 227 of the Con-
stitution of India. The writ petition was filed for quashing the com-
plaint filed under section 7 read with Section 16 of the Preven-
tion of Food Adulteration Act, 1954. The specific prayers were
for issuing a writ of certiorari or issuing a writ of mandamus ac-
companied by a prayer for any other appropriate writ in respect
of the case pending before the Magistrate Court. The Magistrate
issued summons and the parties immediately approached the High

63. Ibid. In Pepsi Food Supreme Court makes a strong case in favour of the inher-
ent powers by the fusing together the varieties of inherent powers under Article
226, 227 of the Constitution and section 482 of the Cr.P.C. Reliance is also made
on a number of previous decision like State of Haryana v. Bhajan La/, 1992
Supp (1) SCC 335, Waryam Singh v. Amarnath, AIR 1954 S.C. 215, Vathutmal
Raichad Oswal v. Laxmibai R. Tarta, (1975) 1 SCC 858, Nagendranath Ba,a
v. Commissioner Hills division, AIR 1958 S.C. 398.
 176

Court. The High Court refused to entertain a writ petition to con-

sider the legality of the proceedings before the Magistrate. The
petition before the High Court was not under section 482 of the
Code of Criminal Procedure. The High Court declined to exer-
cise the writ jurisdiction and held that the parties could approach
the Magistrate for a discharge under section 245 of Cr.P.C. The
attitude of the High Court was myopic and without advertising to
the aspects of injustice done. The High Court was ruminating over
discharge, writ jurisdiction, cognizable offence, complaint cases
etc, when valuable rights of the accused persons got blighted
through the criminal proceedings.

The Supreme Court put the issue in a clearer perspective by

bluntly stating whether the High Court was justified in refusing to
grant any relief to the parties because of the view it took of the
law and facts. So, the power of the court under Articles 226 and
227 of the Constitution and section 482 of Cr.P.C. is annotated
to find that there is no material difference in the jurisdictions.
The thought process of the Supreme Court is apparent on the
face of the decision. The issue is discussed at a higher level, in
the context of judicial review of criminal matters. The courts says,

"It is settled that the High Court can exercise its power of
judicial review in criminal matters. In State of Haryana v.
Bhajan La/64 this court examined the extra-ordinary power
under Article 226 of the Constitution and the inherent
power under section 482 of the Cr.P.C. which it said could
be exercised by the High Court either to prevent abuse of

64. 1992 Supp (1) SCC 335.

 177

the process of any court or otherwise to secure the ends

of justice" .65

The Supreme Court delves deep into the case on the con-
cept of judicial review and unravels the majesty of law. It is more
an appreciation of the jurisdiction under Article 227. Exercise of
power under Article 227 and section 482 of Cr.P.C. is co-exten-
sive. 66 The Supreme Court referes to Waryam Singh v.
Amarnath 67 to reassert the power of judicial superintendence un-
der Article 227. The action of the Calcutta High Court in Dalmia
Jain Airways Ltd. v. Sukumar Mukherjee,68 is viewed with ap-
proval. Then referring to the decisions in :\(athu;tmal Raichand
Oswal v. Laxmibai R. Tarta and another, 69 R. v. Northumberland
compensation Appeal Tribuna/70 and Nagendranath Boya v. Com-
missioner of Hills division,11 the Supreme Court made the ulti-
mate statement that the difference in a proceedings under Article
227 and section 482 of the Code was only a difference in
nomanclature and that it is not quite relevant. The Supreme Court's
positive approach is remarkable especially in a proceedings for
offences under the Prevention of Food Adulferation Act.

xi. Exercise of Inherent Powers by the Supreme Court and

High Court - The Contrast

The above discussion of the Supreme Court's attitude towards

65. Pepsi Foods Ltd. and another v. Special Judicial Magistrate and
others (1998) 5 SCC 749.
66. Ibid.
67. AIR 1954 SC 215.
68. AIR 1951 Cal. 193.
69. AIR 1975 SC 1297.
70. [1952)1 All. E.R. 122.
71. AIR 1958 SC 398.
 178

the extra ordinary powers under Article 227 and inherent powers
under section 482 Cr. P.C. would prompt one to believe that the
Supreme Court has reached a point of no return: Far from that,
the Supreme Court had already stated that there is no rigid pa-
rameter for the powers of the High Court. The judicially trained
minds of the High Court judges must have great discriminatory
sense to call a spade a spade in applying the inherent powers.
This is what one learns from reading the judgment of the Supreme
Court in State of Kerala v. O. C. Kuttan,72 The Supreme Court
disagreed with the High Court in quashing the F.I.R. and disap-
proved of the action of the High Court in arriving at a conclusion
that the lady was more than 16 years of age. The High Court also
held that she was a willing partner for sex and commented on her
character also. According to the Supreme Court, the High Court
had exceeded its jurisdiction under Articles 226 and 227. Here
offences were under sections 336 A, 327, 361, read with
section 34 of I.P.C. alleging the sexual harassment by a large
number of the accused persons. In State of Kerala v O. C. Kuttan 73
the petition was filed under Article 226. A single Judge referred
the matter to a division bench. This was inspite of Pepsi Foods,14
and Bhajanlal's75 decisions. In fact, the decision in o. C. Kuttan's
was the appeal from Tony Antony76. The High Court while advert-
ing to the point referred to by the single judge quashed the FIR
and consequently the proceedings thereunder. The reasons which

72. 1999 (1) KLT 747 (SC)

73. Id. at p. 760.
74. (1998) 5 SCC 749 supra. n. 65
75. 1992 Supp (1) SCC 335
76. Tony Antony v. Director General of Police, 1997 (2) KLT 853.
 179

weighed with the High Court to quash the proceedings and those
explained by the Supreme Court to show the fallacy of the High
Court's reasoning offer a study in contrast. In reaching the con-
clusion which it did the High Court consulted the earlier decisions
of the Supreme Court mentioned in the referred order such as
State of Haryana and others v. Bhajanlal and others,77 State of
West Bengal v. Swapan Kumar Guha,18 State of Bihar v. P.P.
Sharma 79 and State of Punjab v. Gurmit Singh,BO The Supreme
Court also refreshed its own judicial memory by referring to
Sanchaitha Investminet's case,81 Bhajan Lal's case, B2 State of
u.P.v. a.p. Sharma,B3 and Rashmi Kumar v. Mahesh Kumar
Bhada. B4

In Tony Antony B5 even though the petition was filed under Ar-
ticle 226 of the Constitution, the discussion centered around the
concepts of jurisdiction in Articles 226, 227 and section 482 of
Cr.P.C. After scaling through the decisions the High Court came
to the conclusion in the judgment86 of which paragraphs 15 and
16 reads:

"15. We are of the view that in this case, the FIR and her
later statements, even if are taken at their face value, do

77. 1992 Supp. (1) SCC 335.

78. 1982 (1)sec 561.
79. 1992 Supp (1) sce 222.
80. AIR 1996 se 1393.
81. (1982) 1 SCC 501.
82. Ref. supra p. 59.
83. 1996 (2) J.T. 488.
84. 1996 (1) SCALE (SP) 40 (1).
85 1997 (2) KLT 853. Supra n.76
86. Ibid.
 180

not make out a case against the petitioners. The

uncontroverted allegation made in the FIR and other state-
ments do not constitute the offence of rape.

16. For the reasons stated above, we find that these are
fit cases in which this court in exercise of the jurisdiction
under Article 226 of the Constitution of India should quash
the criminal proceedings, against the petitioners to pre-
vent the abuse of the process of court"87

On behalf of the State it was contended that "as the investi-

gation has reached almost concluding stage", the proceedings
against the petitioner should not be quashed. 88

"Learned Advocate General relied on the decisions of the

Supreme Court in the State of H.P. v. Pirlhi Chand, (1996)
2 SCC 37, State of U.P. v. O.P. Sharma, (1996) 7 SCC
705, State of Bihar v. Rajendra Agarwalla, (1996) 8 SCC
164, and Rashmi Kumarv. Mahesh KumarBhada, (1997)
2 SCC 397, and vehemently contended that this Court, in
exercise of the powers under Article 226-of the Constitu-
tion of India, or under section 482 of the criminal Proce-
dure Code, 1973., should not quash the criminal proceed-
ings against the petitioners at that stage as the investiga-
tion had almost come to a concluding stage"89

Interestingly after paying obsequies to the Supreme Court's

decisions in paragraph 14, the High Court without any effort to

87. Id. p. 862

88. Id. at p. 860.
89. Ibid.
 181

thrash out a reasoning concludes the judgment,9o This gives one

the idea that even before analysing the case law the 'judicially
trained mind' of the Judge had pre-meditated the decision. The
narration of the facts in body of the judgment gives one the im-
pression that the High Court judge had allowed his fancy to de-
velop wings so that one feels like reading the judgement arising
from an appeal. The analysis of the sensational dimension of the
case is tantalisingly subjective bordering on a degree of volup-
d rc..\-I oV'\
tuousness and sensualism in the -dictum used. The judgment is
self illustrative-

"According to her FIR, Suresh and Sunny kept her in dif-

ferent houses, threatened her with assault and death,
forced her to have sexual intercourse with more than 25
persons in exchange of money and made her to lead a
life of a depraved woman. Though she resisted in the
beginning, yet, later she yielded to their demand because
she was left with no other option.

She has narrated that she had sexual intercourse

with several persons, several times and at several places
like Five Star Hotels at Ernakulam, luxurious hotels in
Ootty, Kodaikkanal, Munnar, Madras and some other
places of Tamil Nadu. When she went out for a pleasure
trip with other men, neither Sunny nor Suresh accompa-
nied her. On several occasions, she was left exclusively
in the company of strangers. She has further stated to
have sexual intercourse with some men, either because
they did not pay money or because they looked ugly. She

90. Refer supra No. 76

 182

also fell in love with a person called Mathew and did not
like to extract anything from him.

As the days passed by she became more and more co-

quettish and voluptuous by availing the service of beauty
parlours. Life was gay and cheerful. Her lust for sex and
money grew. In her craze to have life of plenty, both in
pleasure and pelf, she immersed herself in the activities
of a prostitute practically. She took pills to prevent preg-
nancy. She had the discretion to have sex with men of her
choice. 91

Then in a deft handling of the situation, the Judge diagnoses

the ailment and comes to the conclusion as follows:-

"The inordinate delay in recording her statements under

section 161 Cr. P.C. after the F.I.R. leads to the irresist-
ible conclusion that during this period of one month she
had the opportunity to deliberate, consult and discuss with
legal experts in order to narrate a make-believe story "92

The statement in F.I.R. and under section 161 Cr.P.C. is an-

notated with the thoroughness and exactitude usually resorted to
evaluate the evidence during trial. The evaluation proceeds-

"At different stages, she has made different statements

about her age. At any rate, it is no longer in dispute, she
was more than 16 years of age when she came to
Ernakulam and indulged in this activity. She was, there-
fore, not a minor girl when the alleged incidents took place,

91. Id. at p. 857.

92. Id. at p. 858.
 183

she has not stated anywhere that these petitioners pro-

duced her for the purpose of prostitution or brought her
for the purpose of prostitution. There is nothing in her
statement or in any papers placed before this Court to
show that all these petitioners had the common intention
of committing the afore said crimes"93

After going through the catena of decisions on the point and

off the point the High Court sticks to the categories of cases
enumerated in State of Haryana v. Bhajanlal. 94

"In the following categories of cases, the High Court may

in exercise of powers under Article 226 or under Sec. 482
of Cr. P.C. may interfere in proceedings relating to cogni-
zable offences to prevent abuse of the process of any
court or otherwise to secure the ends of justice. However,
power should be exercised sparingly and that too in the
rarest of rare cases.

1. Where the allegations made in the First Information Report

or the complaint, even if, they are taken-at their face value
and accepted in their entirety do not prima facie constitute
any offences or make out a case against the accused.

2. Where the allegations in the First Information Report and other

materials, if any, accompanying the FIR do not disclose a
cognizable offence, justifying an investigation by police of-
ficers under section 156 (1) of the Code except under an or-
der of a Magistrate within the purview of Section 155 (2) of
the Code.
93. Id. at p. 858.
94. 1992 Supp (1) se 335.
 184

3. Where the uncountroverted allegations made in the FIR or

complaint and the evidence collected in support of the same
do not disclose the commission of any offence and make out
a case against the accused.

4. Where, the allegations in the F.I.R., do not constitute a cogni-

zable offence but constitute only a non-cognizable offence,
no investigation is permitted by a police officer without an
order of a Magistrate as contemplated under section 155 (2)
of the Code.

5. Where the allegations made in the F.I.R. or complaint are also

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 the concerned Act (under which
a criminal proceedings is instituted) to the institution and con-
tinuance of the proceedings, and or where there is a specific
provision in the Code or the concerned Act., providing effi-
cacious, redress for the grievance of the aggrieved party.

7. Where a criminal proceeding is manifestly attended with

malafide and/or where the proceeding is maliciously instituted
with an ulterior motive for wrecking vengence on the accused
and with a view to spite him due to private and personal
grudge.

8. Where allegations in the complaint did constitute a cognizable

offence justifying registration of a case and investigation
thereon and did no fall in any of the categories of cases enu-
 185

merated above, calling for exercise of extra-ordinary powers

or inherent powers, quashing of F.I.R. was not justified" 95

The Supreme Court has viewed the attitude of the High Court
scornfully, and reversed the decision of the High Court and G.B.
Patnaik, J. of the Supreme Court, provided the judicial antidote
to the extraversion of B.N. Patnaik, Judge of the High Court. The
constitutional innovation of interchanging or interposing the power
under Articles 226 and 227 and section 482 of Cr.P.C. cannot
lead to a judicial imbroglio leading to decision enabling the re-
tardation of justice rather than advancement of justice. While exer-
cising the powers under section 482 of Cr.P.C. the best guide is
to visualise the entire pastures of the fundamental rights, Rule of
Law etc. The judge should ask himself twice before a decision is
taken. The impact of the constitutional provision must reflect in
the reasoning of the judge while applying the power. A dispas-
sionate and objective approach is required. The fact that the pe-
tition is filed under Article 226 of the Constitution does not pro-
vide the judge with any unbridled freedom to enter into an area of
. conjecture and improbability.96

The Supreme Court observed:

"High Court came to the conclusion that the lady was more
than 16 years of age when she came to Ernakulam and
indulged into the activities of leading immoral life and fur-
ther she was not put to force of death or hurt or her con-
sent was obtained by putting her in fear of death or hurt

95. 1997 (2) KLT 853 at pp. 861-862.

96. State of Kerala v. O.C. Kuttan, 1999 (1) KLT 747 (Se)
 186

and on the other hand it is she, who exercised her discre-

tion to have sex with those persons who she liked or got
money and willingly submitted herself to the sexual activi-
ties and, therefore, this is a fit case where the High Court
would be justified in quashing the criminal proceedings as
against those who have approached the court"97

In the arguments before the Supreme Court, the judgment of

the High Court was attacked as being seriously erroneous and
which had not helped to advance justice. In its concluding thoughts
the Supreme Court has made, short shrift of the High Court's
c.o...l
reasons by suggesting the latter ~ot to be whimsiM or capri-
cious. 90 In contrast the Supreme Courts' own reasoning proceeds:

"At the outset there cannot be any dispute with the propo-
sition that when allegations in the F.I.R. do not disclose
prima-facie commission of a cognizable offence, then the
High Court would be justified in interfering with the inves-
tigation and quashing the same as has been held by this
court in Sanchaita Investment's case (19~2 (2) SCC 561)
In the case of State of Haryana and another v. Bhajan
Lal & others, (JT 1990 (4) SC 650) this Court considered
that the question as to when the High Court can quash a
criminal proceedings in exercise of its powers under sec-
tion 482 of the Code of Criminal Procedure or under Ar-
ticle 226 of the Constitution of India, and had indicated
some instances by way of illustrations, though on facts it
was held that the High Court was not justified in quashing

97. Id. at p. 749.

98. Id. at p. 750.
 187

the First Information Report. ....... Having said so, the

Court gave a note of caution to the effect that the Su-
preme Court's power of quashing the criminal proceed-
ings should be exercised very sparingly with circumspec-
tion and that too in the rarest of rare cases, that the court
will not be justified in embarking upon an enquiry as to the
reliability or genuineness or otherwise of the allegations
made in the FIR or the complaint and that the extra-ordi-
nary or inherent powers do not confer an arbitrary juris-
diction on the court to act according to its whim or ca-
price".

The Supreme Court reiterates the caution made in other de-

cisions. 99 Finally, the Supreme Court concludes with the
charesteristic seriousness of a court of justice acting as a senti-
nel on the qui vive .

..... "We have no hesitation to come to the conclusion that

the High Court committed gross error in embarking upon
an enquiry by sifting of evidence and coming to a conclu-
sion with regard to the age of the lady on the date of ille-
gal sexual intercourse, she had with the accused persons
and also in recording a finding that no offence of rape
can be said to have been committed on the allegations
made as she was never forced to have sex but on the
other hand she willingly had sex with those who paid
money.

99. Id. at p. 751. State of u.P. v. C.P. Sarma, 1996 (2) JT SC 488. Rashmi Kumar
v. Mahesh Kumar Shada, 1996 (1) SCALE (SP) 40 (1)
 188

We also do not approve of the uncharitable comments

made by the High Court in paragraph 12 of the judgment
against the woman who had given the F.I.R. It is not pos-
sible and it was not necessary to make any comment on
the character of the lady at this stage. We also, have no
hesitation to come to the conclusion that the High Court
exceeded its jurisdiction to record a finding that the lady
exercised her discretion to have sex with those whom she
like or got money and she willingly submitted herself to
most of them who came to her for sex"100

xii. Nature. Reach and Amplitude of Inherent Power

The reality of inherent powers was never questioned. Confu-

sion was due to its reach and amplitude, and its nature
and character. When projected against the background of the con-
stitutional doctrines the inherent powers became more visible and
clear. Experience of justice administration admits the existence
of inherent powers to superior courts at all given times. After the
inception of the Constitution with more and more subjects com-
ing to be viewed under the limelight of constitutionality the inher-
ent powers happened to occupy the central slot in the adminis-
tration of justice. The question of personal liberty, reformative
jurisprudence, fluctuations in crime rates, depletion in the stan-
dards of morals and values, popularisation of the concept of strict
liability etc, have made the inherent powers relevant. What was
statutorily recognised in 1923 through section 561 A was retained

100. Ibid.
 189

intact in the Code of Criminal procedure, 1973. 101 Even when the
reenactment of the Code in 1973, riding on the crest of simplifi-
cation and rationalisation was made, the inherent powers of the
High Court was saved. However, th Law Commission's proposal
to recognise the inherent powers of the trial courts 102 was not
endorsed by legislature while reanacting the Code of Criminal
Procedure. Recognising inherent powers of the trial courts would
only lead to waterdown the potential of the inherent powers.
Moreover, the guiding spirit behind the inherent powers is that, it
is not conferred, but preserved. Preservation is possible only with
one court. For that High Court is the suitable institution. 103 In pre-
serving the inherent powers in criminal matters even the Supreme
Court of India would not be an efficacious choice. The parties
who seeks the facilities of inherent power jurisdiction would find
access to justice more congenial with the High Court. Supreme
Court as the highest institution can act as modifying force on the
High Court also lest inherent power itself is abused.

The revisional jurisdiction of the High Court and the Sessions

court underwent a dimunition with the introduction of sub clause
(2) and (3) of section 397 Cr.P.C. 1973.

xiii. Judicial Responses on Delay in Criminal Justice

With the above discussions of the impact of the Constitution, it

is beneficial to examine certain situations where the judiciary has
responded favourably against the back ground of inherent powers.
101. The provisions for inherent powers in Sec. 561-A of the 1989 Code was injected
through the Criminal Law Amendment Act, 1923.
102. Ref. supra ch.2, n. 52
103. Ref. supra ch. " n. 2
 190

In Biswanath Prasad Sing v. State of Bihar,104 the attention

of the court was directed to the unconscionable delay in filing the
charge sheet. No progress was marked after filing the case. The
Supreme Court held that the circumstances warranted the quash-
ing of the proceedings. The proceedings alleged offences under
sections 408, 428 IPC and section 7 of the Essential Commodi-
ties Act. The High Court had dismissed the application filed un-
der section 482 of Cr.P.C. The Supreme Court found that inter-
est of justice demanded interference. It was all the more relevant
because the appellant was already dismissed from service and
benefits were forfeited and he had crossed the age of superan-
nuation. In Thulasidas v. State of Orissa 105 employees were
charged as co-accused along with employer for unauthorised sale
of Kerosine. It was held that to implicate them was unlawful. The
proceedings were kept protracted in order. To secure the ends of
justice, the High Court held that charges against employees were
to be quashed even though they had not approached the High
Court owing to poverty and want. This shows that Inherent Pow-
ers have got great social engineering possibilities. Being a court
of justice, it does not require that the affected person is to ap-
proach the High Court because the court can quash in connected
proceedings. The objective of inherent power of the court like
the original jurisdiction of the Supreme Court and the High Court
is to give a human face of the administration of justice. It is ad-
mitted that even High Court and Supreme Court cannot make in-
terference where evidence is required to be adduced; but rules

104. 1994 SCC (Cri) 1663

105. 1987 Cri.L.J. 664 (Ori.)
 191

of evidence are not superior to norms of justice. If a prosecution

is kept alive for a quarter of a century, it means that either there
is no evidence or no material to supply. The very pendency of
proceedings is gross abuse of the process of court. In Sant
Prasad v. State of Bihar,106 it was held that a person cannot sur-
vive the rigour of such a harassment. The proceedings were
quashed. It is mostly on the strength of the constitutional prin-
ciple that the High Court wields inherent powers in such cases.
Proceedings can be quashed on the ground of delay in the com-
mencement of trial. 107 It would be a denial of justice and gross
mis-carriage of justice, if proceedings were to continue after long
lapse of years. It violates the very spirit of article 21 of the Con-
stitution of India. In the instant case, an instance of mis-appro-
priation was alleged to be held in 1970 and 1971. F.I. R. was lodged
in 1979. ie, after 9 years. Investigation was still going on in 1984-
86. It was held that whatever evidence was there, would have
been obliterated by this time. 10B A possible effect of long delay is
that there is every likelihood of the evidence got faded .109

The impact of the constitution on inherent powers is that when-

ever in a given situation the High Court failed to mobilise neces-
sary pickup to do justice, the Constitution has provided that
through an uninterrupted power supply through Articles 226
and 227.
106. 1987 Cri.L.J. 1091(Patna)
107. K. Achutha Rao v. State of Orissa. 1987 Cri.L.J. 2022. (Ori.)
108. The court consulted a catena of decisions holding the field. including: State
of U.P. v. Kapi/ Deo Shukla. AIR 1973 SC 494; State of Bihar v. Uma
Shankar Kotriwal. AIR 1981 SC 641; Chajoo Ram v. Radhey Shyam.
AIR 1971 SC 1367; Machander v. State of Hydrabad. AIR 1955 SC 792;
Hussainara Khatoon v. State of Bihar. AIR 1979 S.C. 1360
109. Bal Ram Swain v. State of Orissa - 1987 CrLL.J. 2030
 192

In Suresh Chandra Swain v. State of Orissa,110 it was held

that the inherent power was not confined to proceedings before
the court only. It can be invoked to quash the investigation also.
There is no power under Article 226 similar to section 482 Cr.P.C.
In Rajendra Kumar & others v. State of Madhya Pradesh, 111 it
was held that unconscionable delay amounts to violation of ar-
ticle 21 of the Constitution. A proceedings pending for Ten years
was held to be violative of Article 21 and the court viewed that
inherent powers under section 482 Cr.P.C. can be invoked in such
cases as it is designed to achieve a salutary public purpose. It is
true that justice is to be administered according to laws. But, the
ends of justice are higher than the ends of mere law and inherent
powers are regarded as mighty weapons in the hands of the court
to do substantial justice. In Ranjith Kumar Pal v. State,112 a Divi-
sion Bunch of Calcutta High Court held that long delay in dis-
posal of the proceedings prejudicially affects the defence of the
accused. Broad interpretation of Article 21 includes, the right to
have speedy trials; the mental torture and anxiety suffered by the
accused is to be treated as sufficient punishment. The judgment
and decree passed in a civil proceedings in the selfsame trans-
action has a material bearing on criminal trial. If such proceed-
ings are allowed to continue, it would be an abuse of the process
of the court. In Chote/a/ Jain v. State of Rajasthan, 113 the Court
quashed the criminal proceedings. It was held that, the accused
was not responsible for the delay and delay would be weakening

110. 1988 Cri.L.J. 1175 (Ori.)

111. 1989 Cri.L.J. 554. (M.P)
112. 1990 Cri.L.J. 643
113. 1992 Cri.L.J. 2620
 193

the efficacy of evidence. A chance of ultimate conviction was

very bleak. The Accused was a Contractor against whom allega-
tions were based on oral and documentary evidences. Prosecu-
tion took two decades for the registration of the case. The court
had drawn reference to important decisions of the Supreme Court
having great constitutional significance. 114

When no prima-facie case is made out against a person and

the proceedings are afflicted by long delay, and the complaint
dogged by discrepancies, there is very little chance for convict-
ing the accused. In Bharath Ranjan Mishra v. Shyam Sundar
Agarwa/,115 the court quashed the complaint relying on landmark
decisions of Madhava Rao Jivajirao Scindia's v. Shambaji Rao
Chantrojairao Angre,l16 Nagawwa v. Veeranna,117 Hareram
Satpadi v. Tikkaram 118 . Unexplained delay in initiating proceed-
ings and taking steps on the part of the prosecuting agency is a
pointer to the weakness of the case, such proceedings are more
often quashed by the Court. In Ganga Ram v. State of
Rajasthan 119 , FIR was quashed on the ground of unexplained delay
for which the accused was not responsible. In this case, no charge
framed even after Ten years from filing of Chalan and 18 years
after the date of occurrence. The Constitutional Principles enun-
ciated through the decisions encouraged the court to quash the

114. AIR 1978 SC 597 - Maneka Gandhi's case, AIR 1987 S.C. 149 - Raghubir's
Singh's case
115. 1994 Cri.L.J. 268 (Ori)
116. AIR 1988 S.C. 709
117. AIR 1976 S.C. 1947
118. AIR 1978 S.C. 1568
119. 1995 Cri.L.J. 2125 (Raj)
 194

proceedings.12o

In Anil Sharma & others v. S.N. Marwaha,121 the complaint

was on the basis of allegation of cheating and conspiracy. It was
alleged that the accused person had concealed the fact of there
being a child from first marriage. The complaint was filed after 3
years of the date of knowledge regarding the child from the 1 st
marriage. This proved fatal to the prosecution.

Even in offences relating to Food Adulteration or transac-

tions in insecticides where ordinarily courts see offences with
great seriousness, unexplained delay on the part of the prosecu-
tion can prove the proceedings a non-starter and sufficient ground
for the High Court to invoke inherent powers. In Hindustan Ciba
Geigy Ltd. v. State of Rajastan,122 the criminal complaint filed
after the expiry of shelf-life of insecticide products, the accused
was thus deprived of their valuable right of re-analysing the sec-
ond sample in the Central Insecticides Laboratory. The conten-
tion of the prosecution against them was held to be an abuse of
the process of the court. In P.M. Kathiresan v. Shanmugham,
Rtd. Captain ,123 the proceedings alleging offences under Section
500 IPC was quashed 2S the complaint was not filed within the
prescribed period of limitation. It was also hit by exception of
Section 499 I PC where it is provided that it is not defamation to
prefer in good-faith an accusation against any person having law-

120. AIR 1978 S.C. 597-Maneka Gandhi's case. AIR 1979 S.C. 1360 -
Hussainara Khatoon's case, AIR 1992 S.C. 1701 A.R. Antulay's case, AIR
1987 S.C. 149, Raghibir Singh's case.
121. 1995 Cri.L.J. 163 (Delhi)
122. 1995 Cri.L.J. 618 (Raj)
123. 1995 Cri.L.J. 2508 (Mad.)
 195

ful authority. In G.I. Punwany v. State, 124 corruption charges were

foisted against the petitioner. Allegation was possession of dis-
proportionate assets. Section 5(1) of the Act was introduced in
1964. Therefore, possession of assets after 1964 would render
the petitioner criminally liable. But, the court held that even if those
assets were acquired before 1964, it would not de-criminalise
the possession there of and charges could not be quashed on
that account. This is giving strict interpretation to a statute hav-
ing great social relevance, when a society is afflicted by corrup-
tion in high places. But, the accused gets a reprive through inher-
ent powers. Proceedings were highly belated, petitioner was not
responsible for the delay. Proceedings were pending for 13 years.
And it was held that the trial court cannot be permitted to pro-
ceed after almost 23 years therefore, proceedings were quashed.

In Ajith Kumar Burman v. State of West Benga/,125 the pro-

ceedings alleging breach of trust was quashed as the accused
was called upon to render evidence after 16 years of alleged
occurrence. Alleged offences was committed while the accused
was in service and he has since retired from service.

The above decision shows that while the court considers ev-
ery offence with great seriousness, the seriousness of the of-
fence gets eroded by the actions of those who are to assist the
court in keeping the majesty of the court. Not even prosecution
is immune to the requirements o.f Rule of Law and the procedure
established by law. If a case is transferred from one court to
another, causing great inconvenience to the accused, it is viola-

124. 1995 Cri.L.J. 3884 (All)

125. 1995 Cri.L.J 4052 (Cal)
 196

lion of the procedure established by law. If there is a delay of 21

years also, due to no fault of the accused, the High Court need
not think twice for quashing the proceedings.126

Mere description of the accused as 'in-charge' of the busi-

ness is not sufficient ground to impose liability on a person, when
the company's liability is being fixed. In Narain Extractions Pvt.
Ltd. v. P. C. Mishra, Food Inspector,127 it was held that prosecu-
tion was liable to be quashed because proceedings were launched
about 2 years and 8 months after the report of the public analyst
was made available. Inordinate delay of 10 years was held viola-
tive of Article 21 of the Constitution of I ndia. 128 Moreover, as
there was a trivial variation of standard found from the sample
would definitely prejudice the petitioner in preparing his defence.
When long delay is allowed to occure and still prosecution is not
even commenced, inherent powers of the High Court can be ex-
ercised against such lethargic and idle attitude of those who bring
action against the accused.

In Scanda Kumar Panda v. Saratu/la Khan,129 delay in pro-

ceedings resulting in contradictory evidence and failure to bring
in oral evidence after lapse of 12 years could sound the death-
knell of the prosecution's case.

The course of law must proceed without any retarding fac-

tors. When a criminal case is initiated against a person the equa-
tions are uneven as a minion, a David is pitted against a monster
126. Akhtar Alison v. State of u.P.- 1996 Cri.L.J. 459 (All.)
127. 1996 Cri.L.J. 736 (Ori.)
128. Rajbir Singh Sunar v. State of Haryana, 1996 Cri.L.J. 1245 (P&H)
129. 1996 Cri.L.J. 2104 (Ori). Also see Jaiprakash Singh v. State of U. P 1996
Cri. L.J. 2426 (All)
 197

'Goliath' the State. Therefore, fairness requires that procedure

must be unblemished, whatever be the offence alleged, there is a
limit to the indifference and recklessness of State in dealing with
the accused persons. If the State fails, the High Court has inher-
ent powers to set free the accused. The powers of the court pre-
served through section 482 Cr.P.C. and re-enforced by Article 21
of the Constitution of India helps the accused to illuminate his
basic and irreducible rights.

In Naik v. State of Kerala, 130 a person who had been in deten-

tion as an under-trial prisoner was set free. The entire proceed-
ings were held liable to be quashed. There was inordinate delay
in proceedings which was in violation of human dignity and fun-
damental rights. When the Indian Legal system supported by ethos
of human rights, culture, and civilisation, even make one treat
the soldier of an enemy country or the dead body of a slain -
belligrant soldier with respect, the court cannot turn a wry face to
the citizen heckled by the vagaries of the State. The period spent
as under trial which itself is more than the maximum punishment
for the alleged offences against which the accused is charged
with.

It is in such a situation that the High Court is to feel reas-

sured its inherent powers against the back ground not only of
Cr.P.C. but also of the basic law of the land, ie, the Constitution
of India. Thus, the laxity, inadvertence, lack of promptitude, inso-
lence etc. of the prosecuting authorities cause delay and delay
makes the State loose the case and helps the accused to regain
his liberty. In Coromandal Distributors v. Food Inspector and oth-

130. 1991 (1) KLT 67

 198

ers,131 default in complying with provision of Prevention of Food

Adulteration was the subject matter of the proceedings. There
was inordinate delay in filing proceedings against the petitioner.
Court held that the trial against the petitioner is an abuse of the
process of the court.

The Delhi High Court held that in appropriate cases, it is per-

missible to protect a person from illegal, and vexatious prosecu-
tion by issuing of an appropriate writ under Article 226 of the
Constitution or in exercise of the inherent powers of the High
Court under section 482 Cr.P.C.132 However the Supreme Court
had reversed this decisions; again on another view of justice.
Thus the dynamism of the Constitution of India as a living thing
is felt- in the domain of inherent powers of the High Court in the
matter of criminal justice system. But this has another side also
while securing ends of justice genuinely, seriousily and sincerely.

xiv. Due Process and Fair Trial - Human Rights

Jurisprudence

The impact of the constitution as explained in the application

of inherent powers helps to protect ends of justice. Prompt and
punctual observation of the rules are necessary while a person is
put to trial. Unconscienable delay as explained above can strike
. . .
at the root of the very proceedings~ In the wake of the human
rights jurisprudence an a1wareness has been created regarding
the right of the accused person in a fair trial. Delay in trial and
investigation proceedings violates the due process of law and
\
protection of laws and rights to equality, individual freedom and
J

131.ILR1999(1)303
132. Delhi Development Authority v. Leela D. Bhagath, AIR 1975 se 495
 199

right to life and personal liberty enshrined in Articles 14, 19 and

21 of the Constitution of India. Inspite of this constitution ad-
vancement, the solemnity and seriousness of the criminal pro-
ceedings get protection under the inherent powers. Notwithstand-
ing the positive imprint of constitutional principles in the criminal
justice system, inherent powers preserved to prevent abuse of
the process of the court and secure the ends of justice is not
available to the accused persons who have contributed to the
abuse of the process. Some persons by interlocutory orders and
other dilatory tactics try to stall the progress of the proceedings.
In such circumstances, it is such people who indulge in abusing
the process of court at the cost of the interest of justice. There-
fore, parallel to the development in the constitutionalism in inher-
ent powers there has been a record of vigilance and seriousness
on the part of judiciary in distinguishin'g who is to get the benefit
of justice, and who is not to get the benefits. The following dis-
cussion centering around a few decisions would put the attitude
of the judiciary in a clear perspective.

xv. Judicial Vigilence in the Interest of Investigation

In Bharath Hybrid Seeds & Agro Enterprises v. The State,133

the High Court declined to interfere with the judicial exercise of
discretion of the trial court. Delay was satisfactorily explained to
the Magistrate who had condoned it and took cognizance of the
offence. In Gopa/ Chouhan v. Smt. Satya and another,134 the Mag-
istrate had issued process in a complaint case. The accused did
not challenge the order for about three years. At the stage of

133. 1978 Cri.L.J. 61 (A.P)

134. 1979 Cri.L.J. 446 (H.P.)
 200

evidence, he preferred a petition before the High Court under

section 482 Cr.P.C. and Article 227 of the Constitution. Thus the
petitioner had slept over' .-: the remedies for an inordinate pe-
riod. His intention was to impede the proceedings of the lower
court. Relying on land mark decisions of the apex court in
Amarnath v. State of Haryana and Madhu Limaye v. State of
Maharashtra 135 it was held that neither inherent powers under
section 482 nor supervisory power under Article 227 could be
invoked in such a case. As the very foundation of inherent pow-
ers is equity, fairness and Rule of Law, the court takes decision
after ascertaining the reason for delay. If there is no fault of the
complaint, proceedings are not liable to be quashed on account
of delay. In Bhagavath Pandey v. State of Bihar,136 nine years
delay in taking cognizance by Magistrate was discarded by the
High Court and declined to interfere under section 482 Cr.P.C.
This was because delay was caused mainly due to loss of
records 137 .

Inherent powers are always considered in the light of interest

of justice. The court has to balance the right of the individual and
the interest of the society. In such a situation, 7 years delay in
filing the charge-sheet need not be a ground for attracting the
procedure of the trial court through invocation of inherent pow-
ers. Orissa High Court took such a view in Kishore Chandra Behra
and others v. State of Orissa, 138 the court was conscious of the

135. AIR 1978 SC 47. Amarnath v. State of Haryana, AIR 1977 SC 2185
136. 1986 Cri.L.J. 1429 (Patna)
137. The court adverted to the decision in R.P. Kapoor v. State of Punjab AIR
1960 S.C. 866
138. 1989 Cri. L.J. 166 (Ori)
 201

long lapse of time amounting to miscarriage of justice. But, the

court was also equally aware of and more concerned with the
public interest. It was held that if a grave offence of misappro-
priation of a heavy public amount goes unnoticed, and unpun-
ished, due to lack of investigation, it is a case of miscarriage of
justice. The court makes an idealistic approach here and declines
to interfere. This "Not that I loved Ceaser less, but that I loved
Rome more"139 attitude of the court, in complying with the inher-
ent powers is a pointer to the investigating agency also who build
gate-ways to the accused to have safe-passage out of the prov-
ince of criminal liability.

Viewed against the above position of the court a three day's

delay in launching prosecution is very well condoned and High
Court's inherent powers cannot be used to quash the proceed-
ings.14o The question of delay comes in the matter of filing peti-
tions under section 482 Cr.P.C. itself. There is no prescribed pe-
riod of limitation for filing petition under section 482 Cr.P.C. the
application should be filed within a reasonable time. In Bata @
8ata Krushna Behera v. Anamma Behera,141 the High Court held
that since the time limit for revision petition was 90 days applica-
tion under Section 482 itself at par with a revision petition also
be filed within 90 days and time beyond that period must be ex-
plained. This attitude of the High Court can create problems. It is
not so admirable to equate inherent powers with revisional pow-
ers. The scope of two jurisdictions vary greatly. The proceed-

139. William Shakespear, Ju/ius Ceaser, Act III Scene 2 Line 19

140. Madan Mohan Sharma v. State of M.P. - 1990, Cri.L.J. 1046 (M.P.)
141. 1990 Cri.L.J. 1110 (Ori.)
 202

ings initiated under inherent powers cannot be limited in the mat-

ter of time limit prescribed, especially when the Sec. 482 Cr.P.C.
itself categorically states that nothing in this Code shall affect or
limit the inherent powers of the High Court.

Similarly in Prem Singh v. State of Himachal Pradesh, 142 High

Court declined to exercise inherent powers to quash the proceed-
ings on the ground of delay. The reasoning of the High Court is
on sound principle of ends of justice. Offences involved were
illegal felling of trees from Reserve Forests. The court consid-
ered the nature of the alleged offences, conduct of the investi-
gating agency, and circumstances therein, while declining to quash
the proceedings. In a case where proceedings were kept pending
for about 14 years, the Calcutta High Court declined to interfere.
The delay in framing charge occurred largely due to the conduct
of the accused persons, one or the other of whom was persis-
tently absent on days fixed for framing of charge. This itself is
an abuse of the process of the court. 143

If delay is not unreasonable, the High Court will be very cau-

tious to exercise inherent powers. In Amrinder Singh Kang v.
State of Punjab, 144 the court dismissed the Petition. The attack
on ground of delay was not accepted. Delay was reasonable,
because, vigilance department had to conduct enquiry for assess-
ment of value of property and scrutiny of details of bank state-
ment etc. Such delay in cases the merits of which rest upon docu-
mentary evidence, is not sufficient enough to quash the proceed-

142. 1990 Cri.L.J. 1354 (H.P)

143. Seva Singh v. K.C. Kanungo. 1992 Cri.L.J. 2569 (Cal.)
144. 1994 Cri.L.J. 41. (P&H)
 203

ings. This drive for the reasoning of the Supreme Court in State
of Andhra Pradesh v. P V. Pavithran,145 where it was held that for
deciding the question of delay, it depends on the fact and cir-
cumstances of each case. Rules of equity states that, if accused
defeats equity by contributing to the delay, the court cannot quash
the proceedings. Similarly, once the case has considerable ad-
vancement in its proceedings, delay alone cannot be a ground
for interference. 146

The consensus in the judicial parlance regarding the delay as

a ground for quashing the prosecution is that instead of taking
delay as such, while invoking inherent powers, the court has to
consider the reason or the cause of delay.147 it is in such circum-
stances that the petitioner has to explain his conduct for causing
delay.148

When the petitioner has contributed to the delay, the maxi-

mum that High Court can do under inherent powers is to direct
the trial court to have expenditious disposal of proceedings.149
The social impact of crimes are also to be considered while in-
voking inherent powers. Then delay may not be of much conse-
quences. In Santhosh Singh v. State of Orissa,150 it was held that
prosecution cannot be quashed merely on the ground of delay
and infringement of right to speedy trial. The abhorrent nature of

145. AIR 1990 S.C. 1266

146. Sat Paul v. Inspector of Police and another - 1994 Cri.L.J. 2898 (Cal.)
147. Hari Raman v. State, 1995 Cri.L.J. 3527 (Mad.)
148. Basana Gowda Patil v. State of Karnataka, 1996 Cri.L.J. 631; Santhosh
de v. Archana Guha, AIR 1994 SC 1229
149. Rajaram Patnaik v. Indian Metal Fero Alloys Ltd., 1996 Cri.L.J. 732 (Ori)
150. 1996 Cri.L.J. 2651 (Ori.)
 204

the crime which has social impacts, economic offences and of-
fences which affects the health of others should not be brought
to a halt on the ground of delayed trial. The courts in such cir-
cumstances should be asked to take up expenditious trial and if
necessary a time limit should be fixed to conclude the trial. This
direction to issue time limit instead of quashing the proceedings
is the result of the balancing act done by the High Court with
individual interest on the one side and society's interest on the
other side. In the above decision, the court had banked on the
aid of the Supreme Court. 151 The reasoning in the above deci-
sion to view, economic offences and offences under prevention
of Food Adulteration Act which has an ultimate effect in the soci-
ety, seriously made the High Court relectunt to invoke the inher-
ent power. 152

xvi. Dynamism of Inherent Powers - Impact of the

Constitution

The above discussion regarding the application of inherent

powers to quash the proceedings vitiated by inordinate delay
shows the dynamism of inherent powers. No person is allowed
to make a march over the principles of law. The impact of the
constitution has improved the consummate quality of inherent
powers. It has also made the position clear so that undersirable
persons do not get the benefits.

Among the various branches of law in respect of criminal jus-

151. Maneka Gandhi v. Union of India, AIR 1978 se 597; A.R Antulay v.
R.S. Naik, AIR 1992 se 1701; State ofBiharv. P.P. Sharma, 1992 Suppl.
(1) see 222
152. M/s. Sangeetha Traders v. P. K. Das '9~ 6 Co 7i· L.'J-. .32.01 (0'0
 205

tice administration, criminal law has got direct bearing on indi-

vidual freedom, and personal liberty. Constitutional law having
specialised in fundamental rights, which are the life of personal
liberty, has equal relevance in this context. So while assessing
the impact of the constitution, on inherent powers the situation
emerging is one where criminal law and constitutional law jointly
address the problems in the above area. Judicial system in India
with the Supreme Court and High Courts dominating the judicial
process, the judicial activity is therefore intense. Every legisla-
tion, every act of every authority of the State must have the stamp
of constitutionality. Ultimate powers are derived from the consti-
tution. In criminal law, inherent powers of the High Court has
achieved an equanimity with the constitutional powers. The con-
tribution of the Supreme Court and High Court is substantial. An
examination of a few instances made in the above paragraph
underline this welcome development in Indian Jurisprudence. In
some situation one is tempted to think that the above develop-
ment so far as litigants are concerned is an onerous gift of juris-
prudence, in the service of justice. Onerous because one is ex-
pected to surrender to the negative as well as positive develop-
ments. One cannot file a petition challenging the validity of a rule
under section 482 Cr.P.C. In P. M. Ninan v. Executive Officer,
Anikad 1S3 a Full Bench of the Kerala dismissed such a petition.
The petitioner ought to have made the challenge to the rule through
writ jurisdiction of the High Court. The Full Bench also held that
after the dismissal of the petition, petitioner could not file a writ
petition for the same relief also. Because, it was hit by the doc-

153. 1979 Cri.L.J. 372 (Ker.)

 206

trine of resjudicate. In State of Maharashtra v. Mohammed Yusuf

Noor Mohammed,154 the Bombay High Court invoked inherent
powers for the cause of public interest. Prosecution was launched
by private individuals. It was held that the court can quash the
proceedings in the larger interest of the society. There was con-
flict between two sects of Muslims. Persons belonging to one
sect filed complaint against the head of another sect. The State
argued that proceedings may cause another innings of violence
and disharmony in the society. So inherent power for securing
the ends of justice receives a novel dimension here. This is a
direct result of the impact of the Constitution.

When the application of inherent powers is dismissed in the

above perspective, one finds topics like personal liberty being
discussed and decided. In Pranab Jyothi Gogoi v. State of
Assam,155 the Gauhaty High Court accosted such a situation. The
petition was filed under Article 226 of the Constitution and sec-
tion 482 of the Cr.P.C. The matter in issue was the death of a
detenue while in custody of Army authority. Death was due to
injuries suffered by him. The victim was an undergraduate aged
22 years. Both parents of the victim were alive and court ad-
verted to their suffering from agonysing event a case under sec-
tion 302 read with section 34 IPC was registered against Army
Personnel. The court also held with an ex-gratia payment without
legal consideration or some monetary payment could be admis-
sible. Therefore, it was held that payment of Rs. 2,00,0001- (Ru-
pees Two Lakhs) to the deceased person's parents by the Union

154. 1990 Cri.L.J. 2106 (Born.)

155. 1992, Cri.L.J. 154 (Gau)
 207

of India would meet the ends of justice. The Supreme Court of

India had already created a climate of humanism in Indian Juris-
prudence by awarding compensation in writ proceedings.
Sebastian Hongray v. Union of India,156 is one instance of judi-
cial philanthropy. This is translated to the inherent power jurisdic-
tion also. This is a direct result of the impact of the Constitution.
Matters of public interest arise in relation to the State also. The
High Court under inherent power can even make the eyes of the
authorities open, so that the State is pulled back in its endeavour
to administer law and order. In State of Madhya Pradesh v. Gyan
Singh,157 the Madhya Pradesh High Court considered the griev-
ances of the State. Non-bailable warrant for arresting and pro-
ducing the accused is issued. Non co-operation by the police in
the matter was alleged by the State. It was also reported that
large number of cases were pending in the court due to the said
non-co-operation of police official. The attitude adopted by the
police in such matter was deprecated by the High Court.

When precious fundamental rights of the citizens are at stake,

the judiciary and the courts are the sole institution powerful to
protect them. When a person is charge-sheeted under the drastic
legislation like Terrorist and Disruptive Activities (Prevention) Act,
the private interest must be given as much interest of the public.
As the accused persons' options are minimum to get bailor to
quash the proceedings, court must give less attention to formali-
ties and more attention to the infraction done on justice.

156. 1984 Cri.L.J. 830 SC.

157. 1992 Cri.L.J. (192)
 208

In Girish Chandra Kakati v. Union of India,158 the court dis-

cussed the fundamental rights and inherent powers in a conspec-
tus of adjudication. The jurisdiction of the High Court under sec-
tion 482 Cr.P.C. for entertaining an application for quashing an
FIR in which accusation of offences in TADA Act was involved
provided the situations. It was held that under section 482 Cr.P.C.
the application could not be entertained as High Court had no
jurisdiction. But, the jurisdiction of the High Court under Article
226 of the Constitution was never doubted. Going by the prin-
ciple laid down by the Full Bench of Kerala High Court 159 a dis-
missal of the petition would attract resjudicata, and the petition-
ers attempt to get justice would be checkmated. The question of
converting the petition under section 482 Cr.P.C. to petition un-
der Article 226 was considered. The plea was made by the law-
yer. The court asserted that there was allegation of the violation
of fundamental rights guaranteed under Article 21 of the Consti-
tution and so, permission to convert the petition was granted since
the question of protection of fundamental rights was involved.
This is the pragmatic and realistic approach which fulfils the de-
velopment of a legal realism in Indian jurisprudence.

If there is manifest injustice the High Court can interfere ei-

ther under section 482 Cr.P.C. or under Article 226 of the Consti-
tution. In Hassan AIi Khan v. The State 160 the High Court consid-
ered the comparative possibilities under the two jurisdiction to
attack an FIR and an investigation, drawing profusely from an

158. 1992 Cri.L.J. 460

159. P.M. Nainan v. Executive Officer Anikad, 1979 Cri.L.J. 372 (Ker.)
160. 1992 Cri.L.J. 1828 (A.P.)
 209

earlier authoritative pronouncement 161 and formulated the follow-

ing principles.

1. Power of police to investigate is unfettered when FIR dis-

closes a cognizable offence.

2. Proceedings can be interfered with only when the materials

before the court do not disclose any offence at all, for which
the materials to be considered on its face value.

3. When the materials do make out any case power under

Article 226 can be invoked to quash the case.
4. High Court will not interfere under the writ jurisdiction unless
there is manifest injustice.

The above attempt of the High Court to expose the situation

is a proof to the claim of constituionalism in the area of inherent
powers. The concepts of equality of laws and equal protection of
law and procedure established by law provide as input to High
Court even when administering justice under inherent powers.

In Chinna Ourai Nadar v. Assistant Health Officer162 a ques-

tion pertaining public interest was considered under section 482
Cr.P.C. The court quashed the complaint. The offences alleged
were of non-making of sufficient artificial means of ventilation
inside the auditorium of theatre. It was alleged to be injurious to
public health and that it caused nuisance. But, no notice was given
to the petitioner nor any opportunity as to how nuisance was com-

161. Emperor v. Khwaja Nazir Ahmad, AIR 1948 P.C. 18; R. P. Kapur v. State
of Punjab, AIR 1960 SC 866; State of West Bengal v. Swapan Kumar
Guha, AIR 1982 SC 949
162. 1992 Cri.L.J. 2148 (Mad.)
 210

mitted was given. The public health officer was never given an
opportunity to abate or remove nuisance. When all scruples of
justice are violated, however, grave the public interest, the au-
thority must comply with the basic formalities, the violation of
which violate natural justice and constitutional rights. In Prem
Kumar v. Nahar Singh and another,163 the petition was filed un-
der section 482 Cr.P.C. read with Article 227 of the Constitution.
The allegation was that the Magistrate neither examined the com-
plaint nor the witnesses, but directed to issue process. A Magis-
trate of the Second Class has no jurisdiction to take cognizance
of an offence under section 500 IPC. The court had resorted to
section 460 of the Cr.P.C. which states that a Magistrate is not
empowered to do anything if taken cognizance of an offence er-
roneously but in good faith, this proceedings shall not be set aside
merely because, he would not empowered. The High Court held
that there was lack of jurisdiction over the Magistrate who took
cognizance. It was proved that demands of justice are superior
to a demand of law. The High Court set aside the order of the
Magistrate and remanded the case back to the court below for
proceeding afresh from the stage of complaint. A symbyotic re-
lation is established between the inherent powers under section
482 Cr.P.C. and original Articles 226 and 227 of the Constitution
of India to tackle situations crying aloud for justice. ~erhaps an
all time high is the impact of constitution, in the administration of
criminal justice, which came with the monumental decision of the
Supreme Court in Common cause v. Union of India. 164 Matters

163. 1995 Cri.L.J. 2517 (H.P)

164. 1996 (2) KLT 820 (SC)
 211

pertaining to Articles 21 and 22 of the Constitution of India, in

respect of criminal trial pending in various courts named and un-
named engaged the attention of the Supreme Court. The deci-
sion indirectly proclaimed that the State cannot administer jus-
tice ignoring the existence of Constitution and pristine principles
of personal liberty adumbrated in it. Criminal trial pending in a
court for long periods was held to operate as an engine of op-
pression. Taking inherent power to deesy hights of jurisprudence
the court issues direction to the criminal court to protect and ef-
fectuate the right to life and personal liberty of the citizen.

Accused persons were directed to be discharged or released

on bail, after the Supreme Court had made a serious excursion
into the subject and enumerated the different categories of of-
fences. Here also, the Supreme Court was not on a spree un-
mindful of the society's interest at stake. The court was careful
to identify grave offences and exclude them from the purview of
the directions. In Common Cause 11 v. Union of India,165 the Su-
preme Court made a further modification injucting pragmatism to
the thinking of the court. The above decisions show that inherent
power and constitutional power have developed a territory of their
own in Indian Jurisprudence. What is to be careful about is that,
in the circumstances created under this development under serv-
ing persons may not get an opportunity to riggle out of the wrath
of law. There is likelihood of persons who commit atrocious and
abominable offences and then try to desect the syllables of juris-
prudence to get out of liabilities. The High Court must be vigilant
against them. A telling example is the decision of the Kerala High

165. (1996) 6 SCC 775

 212

Court in Tony Antony v. Director General of Police,166 the divi-

sion bench of the High Court had gone on a tangent to quash the
FIR and proceedings pending against the petitioners in respect
of serious specific allegations of sexual offences. The High Court
even drawing conclusion which would ordinarily be done after
analysis of evidence, the Supreme Court was quick to react and
the decision of the High Court was set aside and the accused
persons were made to face trial. In State of Kera/a v. O. C.
Kuttan,167 the Supreme Court even criticised the High Court for
an overzealous attitude. Something which cannot be done invok-
ing inherent powers may not be allowed to obtain by invoking
original jurisdiction under Article 227 of the Constitution of India.

xvii. Constitutional Spirit

Thus, the constitution and principle evolved from it over the

decades have made an indelible impression in the solids of in-
herent powers. This once again shows the effectiveness of the
Indian Constitution, and the power of assimilation of the Indian
Judiciary. The positive development in this area gives credibility
to the argument that Indian Constitution is a document of fair
merit and that it is potent enough to bring a silent social revolu-
tion. "The Indian Constitution was in the right structure when press-
ing for a multiple revolution, settling as I have done in this lectur-
ers for the figure of III as an entient symbol of pluralism - of
Unity in diversity - in contrast to Monism and dualism".168

166. 1997 (2) KLT 853

167. 1999(1)KLT747
168. Or. Peter G. Sack, Constitutions and Revolutions - Centre for Advanced
Studies and Research Tvm. (1990), p. 103
 213

The above observation of Dr. Peter G. Sack is based on the

liberalism and humanism found in the letter and spirit of the con-
stitution. Or. Sack declares:-

"A revolution social or otherwise is not a matter of control,

but a matter liberation and re-organisation"169

In the area of inherent powers, the Supreme Court and High

Court have helped the Indian Society to achieve a liberation and
re-organisation by drawing from the spirit of the constitution. Ad-
ministration of justice is possible only in the context of personal
liberty and individual freedom. This, Dr. Sack says is made in the
Indian Constitution through the cold social revolution which is the
reinstatement of brotherhood. If the revolution has been slow,
still born, it is because "The Constitution makers where neither
able nor willing to provide an appropriate ideological and techno-
logical frame work, another "in otherwise a new paredine"170

But, considering the experience of Indian jurisprudence, one

cannot concede that the so called failure of the framers of the
Indian Constitution, has done any irrecoverable damage. This is
because, "The new paradigm" wished for in the above context
has been provided by the Supreme Court and High Courts dis-
covering the same from the Constitution itself. That paradigm
can be called judicial review, basic structure, rule of law, or in the
context of the impact of constitution on inherent powers, that
paradine can be called even inherent powers.

169. Ibid.
170. Ibid.