Seema Seth vs Nain Bala Sharma And Ors.
1993 Latest Caselaw 385 Del

JUDGMENT

Sat Pal, J.

(1) This is a petition under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as the Code) for quashing the preliminary order dated 2nd April, 1990passed by Shri S.N. Sahai, S.D.M. (Kotwali), Delhi directing the petitioner and other concerned parties to file written statements regarding their respective claims for the premises in dispute and the order dated 3rd October, 1991 passed by Shri P.K. Dham, Addl. Sessions Judge, Delhi upholding the order dated 2nd April, 1990 passed by the S.D.M. (Kotwali).

(2) Briefly stated the facts of the case are that on 20th March, 1989 Police Officer P.S. Kotwali filed a kalendra under Section 145 of the Code stating therein that there was a dispute over the possession of premises 1909 (1st floor) in main Chandni Chowk among Smt. Seema Seth (petitioner herein) Smt. Nain Bala Sharma (respondent No.1 herein) and Dr. O.B.Mathur (respondent No.3 herein) and that there was every likelihood of breach of peace over the possession of the said premises. Pursuant to the aforesaid kalendra, the S.D.M. (Kotwali) passed a preliminary order dated 2nd April, 1990 under Section 145 of the Code holding that he was satisfied that there existed a serious dispute regarding possession over the disputed premises which might induce serious apprehension of breach of peace. By this order the S.D.M. directed all the parties concerned to file written statements regarding their respective claims.

(3) Aggrieved by the order dated 2nd April, 1990 passed by the S.D.M., the petitioner filed revision petition bearing No. Crl.R. 137/90 under Section 397 of the Code before the Sessions Court. It was submitted on behalf of the petitioner that the possession and control over the disputed premises had been with the petitioner and two other doctors, namely. Dr. R.S. Mudgil and Dr. O.B.Mathur and the respondent No. 1 never had any connection with the premises. In view of these facts it was contended that there was no breach of peace and the provisions of Section 145 of the Code were not attracted and as such the S.D.M. had no power to pass the impugned order dated 2nd April, 1990.

(4) The learned Additional Sessions Judge vide his order dated 3rd October, 1991 dismissed the revision petition and upheld the order dated 2nd April, 1990 passed by the S.D.M.(Kotwali). By this order the learned Addl. Sessions Judge observed that the impugned order dated 2nd April, 1990 did not suffer from any irregularity or impropriety.

(5) Against the orderdated2ndApril, 1990passed by the S.D.M.(Kotwali)andorder dated 3rd October, 1991 passed by the learned Addl. Sessions Judge the present petition has been filed under section 482 of the Code. In this petition it has been prayed that the impugned orders dated 2nd April, 1990 and 3rd October, 1991 be set aside and the proceedings under Section 145 of the Code pending before the learned S.D.M. be quashed.

(6) Shri Bachhavat, the learned Senior counsel for the respondent No. 1 raised a preliminary objection that the present petition under Section 482 of the Code is not maintainable in view of the bar under Section 397(3) of the Code. He submitted that the prayer in the present petition is identical to the prayer made in the revision petition filed by the petitioner before the Sessions Court and the same relief could not be sought before this Court in a petition under Section 482 of the Code in view of the bar under Section 397(3) of the Code. In support of his contention, the learned counsel placed reliance on two judgments of the Supreme Court in the case of Dharampal V. Smt. Ramshri and Rajan Kumar Machananda V. State of Karnataka and my judgment in V.P. Talwar V. Munshi Ram, .

(7) Mr. Mathur, the learned counsel appearing on behalf of the petitioner, however, submitted that Sub-Section (3) of Section 397 curbs only the revisional power given to the High Court or the Sessions Court under Section 397(1) of the Code and does not limit the inherent power of the High Court contained in Section 482 of the Code. He, therefore, contended that the' present petition which has been filed under Section 482 of the Code was maintainable inspite of the fact that the revision petition filed by the petitioner seeking the same relief before the Sessions Court was dismissed by the learned Addl. Sessions Judge. In support of his contention the learned counsel placed reliance on two judgments of the Supreme Court in the cases of Madhu Limaye V. State of Maharashtra, and V.C.Shukla V. State through C.B.I., and a judgment of Rajasthan High Court in Raju V. State of Rajasthan, 1992 Crl.L.J. 723. The learned counsel further submitted that the two judgments of the Supreme Court in the case of Dharam Pal (supra) and Rajan Kumar Machananda (supra) relied upon by the learned counsel for the respondent No. I were rendered by two judges Bench of the Supreme Court whereas the judgment in the case of Madhu Limaye (supra) was rendered by a Bench of three judges of the Supreme Court and the judgment in the case of V. C. Shukla (supra) was rendered by a Bench of four judges of the Supreme Court. He, therefore, contended that the law laid down by a Bench of three judges of the Supreme Court shall prevail on the law laid down by the Bench of two judges.

(8) Before examining the point in question, it will be relevant to reproduce Section 397 of the Code which reads as under. :- "397.Calling for records to exercise of powers of revision.-(l) The High Court or any Sessions Judge may call or and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety or any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record. Explanation.- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purpose of this sub-section and of Section 398(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. (3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them."

(9) From reading of Sub Section (2) of Section 397, it is clear that the powers of revision conferred by Sub-section (1) of 397 cannot be exercised in relation to any interlocutory order and as such the bar is only with reference to the exercise of powers of revision under Section 397(1) of the Code. But the reading of Sub-section (3) of Section 397 shows that in case any person has made an application under Section 397 either to the High Court or to the Sessions Judge, such a person has been prohibited to make any further application on the same subject. The bar under Sub-Section (3) comes into operation only. when a person aggrieved by the order of the original jurisdiction has availed himself of his right to file revision petition either before the High Court or Sessions Judge. From this it is also clear that the prohibition pertains to the further application by such person not only under Section 397 but under any other provision of the Code on the same subject. It appears that it was on this ground that the Supreme Court in the case of Rajan Kumar Machananda (supra) held that in case the relief sought in a petition under Section 482 of the Code is identical to the relief sought in the revision petition, such a petition though labelled under Section 482 of the Code will not be maintainable in view of the bar under Section 397(3) of the Code. The same view was taken by the Supreme Court in the case of Dharam pal (supra) wherein it was held that the inherent powers under Section 482 of Code cannot be utilised for exercising powers which are expressly barred by the Code.

(10) The case of Madhu Limaye (supra) pertains to the bar under Sub-Section (2) of Section 397 and not the bar provided in Sub-section (3) of Section 397 of the Code. In this case, the Supreme Court held "that the bar provided in sub-Section (2) of Section 397 operates only in exercise of the revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to any interlocutory order., Then in accordance with one or the other principles enunciated above, the inherent power will come into play, there being no other provision in the Code for the redress of the grievance of the aggrieved party. But then if the order assailed is purely of an interlocutory character which could be corrected in exercise of the revisional power of the High Court under the 1898 Code, the High Court will refuse to exercise its inherent power.

(11) From the above observation, it is clear that in case an order could be corrected in exercise of the revisional power of the High Court, the High Court will refuse to exercise inherent power. Since in the present case the first order dated 2nd April, 1990 passed by the learned S.D.M. could be corrected in exercise of the revisional power and as stated herein above, the revision petition, in fact was filed by the petitioner before the Sessions Court, this Court cannot exercise inherent power under Section 482 of the Code.

(12) The observations given by the Supreme Court in the case of V. C. Shukla (supra) are obiter as provisions of Sub-Section (3) of Section 397 of the Code did not arise for interpretation in that case. Even these obiter observations are found in the judgment rendered by two judges and the same are not found in the judgments of the other two judges'.

(13) Here it will also be relevant to refer to three judgments of the Supreme Court in the cases of Sankatha Singh Vs State of U.P., , Smt Sooraj Devi VS. Pyare Lal, and Mosst. Simrikhia Vs Smt. Dolly Mukherjee, . In all these judgments, it has been held by the Supreme Court that the inherent power under Section 482 of the Code cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code.

(14) The contention of the learned counsel for the petitioner that the decision rendered by a Bench of three judges in the case of Madhu Limaye (supra) shall prevail on the decisions rendered by the Bench of two judges in the case of Dharam Pal (supra) and Rajan Kumar Machananda (supra), is not relevant to the facts of the present case. As stated earlier, the case of Madhu Limaye (supra) pertains to the bar under Section 397(2) of the Code but the case of Dharam Pal (supra) and Rajan Kumar Machananda (supra) are directly on the bar under Sub-Section (3) of Section 397 of the Code. As regards the case of V.C. Shukla (supra), the observations given (by two judges only) with regard to Section 397(3) of the Code are obiter as in that case the Court was not concerned with the interpretation of Section 397(3) of the Code.

(15) Since the relief sought in the present petition filed under Section 482 of the code is the same as was claimed in the revision petition filed by the petitioner before the Sessions Court under Section 397 of the Code, the present petition is not maintainable in view of the bar under Section 397(3) of the Code and the law enunciated by the Supreme Court as discussed hereinabove. Accordingly, the petition is dismissed.