Sunita Shrivastava vs The State Of Madhya Pradesh
2021 Latest Caselaw 1101 MP

                           1


       HIGH COURT OF MADHYA PRADESH

                  (DIVISION BENCH)

       Miscellaneous Criminal Case No. 12754/2021
            Sunita Shrivastava and another
                          Vs.
                State of Madhya Pradesh
       Miscellaneous Criminal Case No. 12772/2021
                  Rashmi Shrivastava
                          Vs.
                State of Madhya Pradesh
       Miscellaneous Criminal Case No. 12758/2021
                  Ankita Shrivastava
                          Vs.
                State of M.P. And others

           ORDER FOR CONSIDERATION


                                             (VIRENDER
                                               SINGH)
                                               JUDGE
                                               /03/2021


HON'BLE SHRI JUSTICE PRAKASH SHRIVASTAVA


                                             (PRAKASH
                                           SHRIVASTAVA)
                                               JUDGE



                                             POST FOR:
                                              26/03/2021
                                   2

     HIGH COURT OF MADHYA PRADESH : JABALPUR
                         (Division Bench)




Appearance
Shri Anil Khare, Senior Advocate with Shri Priyank Agrawal for the
petitioners.
Shri Ambuj Jain, Advocate for respondents on behalf of Shri Satyam
Agrawal, for the respondent.
CORAM:
Hon'ble Shri Justice Prakash Shrivastava
Hon'ble Shri Justice Virender Singh
                               ORDER

( 26/03/2021 ) Per Virender Singh, J.

In all these three petitions preferred under Section 482 of the Code of Criminal Procedure, 1973 by wife, daugher and sister of Shri Satish Kumar Shrivastava, challenge is to the order dated 21.1.2021 passed in M.J.C.R No. 43/2020 by Special Judge, Prevention of Corruption Act, Umariya; whereby, the learned Court has refused to release cash/accounts seized by the Special Police Establishment after a search conducted at his house on the allegation of accummulation of disproportionate property.

2. In all three petitions the office has raised a preliminary objection as to the maintainability stating that against the impugned order a Revision should have been preferred under Section 397 of the Cr.P.C and the petition under Section 482 Cr.P.C is not maintainable.

3. Contesting the objection of the office Shri Anil Khare, learned Senior Advocate placed reliance on Prabhu Chawla v. State of Rajasthan and another [(2016) 16 SCC 30] and submitted that inherent powers of the Court can be invoked to challenge the impugned order. Paragraphs 5 and 6 of this

judgment referred to by the learned Senior counsel reads as under:

"5. Mr Goswami also placed strong reliance upon the judgment of Krishna Iyer, J. in a Division Bench in Raj Kapoor v. State [Raj Kapoor v. State, (1980) 1 SCC 43 : 1980 SCC (Cri) 72] . Relying upon the judgment of a Bench of three Judges in Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 : 1978 SCC (Cri) 10] and quoting therefrom, Krishna Iyer, J. in his inimitable style made the law crystal clear in para 10 which runs as follows: (Raj Kapoor case [Raj Kapoor v. State, (1980) 1 SCC 43 : 1980 SCC (Cri) 72] , SCC pp. 47-48) "10. The first question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 overlaps. The opening words of Section 482 contradict this contention because nothing of the Code, not even Section 397, can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code. In Madhu Limaye v. State of Maharashtra [Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551 :

1978 SCC (Cri) 10] this Court has exhaustively and, if I may say so with great respect, correctly discussed and delineated the law beyond mistake. While it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397(2). Apparent conflict may arise in some

situations between the two provisions and a happy solution 'would be to say 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 of 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. But in case the impugned order clearly brings about a situation which is an abuse of the process of the court or for the purpose of securing the ends of justice interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction'. (SCC pp. 555-56, para

10) In short, there is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the Court's jurisdiction. The limitation is self-restraint, nothing more. The policy of the law is clear that interlocutory orders, pure and simple, should not be taken up to the High Court resulting in

unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent power, if glaring injustice stares the court in the face. In between is a tertium quid, as Untwalia, J. has pointed out as for example, where it is more than a purely interlocutory order and less than a final disposal. The present case falls under that category where the accused complain of harassment through the court's process. Can we state that in this third category the inherent power can be exercised? In the words of Untwalia, J.: (SCC p. 556, para

10) '10. ... The answer is obvious that the bar will not operate to prevent the abuse of the process of the court and/or to secure the ends of justice. The label of the petition filed by an aggrieved party is immaterial. The High Court can examine the matter in an appropriate case under its inherent powers. The present case undoubtedly falls for exercise of the power of the High Court in accordance with Section 482 of the 1973 Code, even assuming, although not accepting, that invoking the revisional power of the High Court is impermissible.' I am, therefore clear in my mind that the inherent power is not rebuffed in the case situation before us. Counsel on both sides, sensitively responding to our allergy for legalistics, rightly agreed that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this Court's time. Our conclusion concurs with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for me to hold that the entire revisory power stands frustrated and the inherent power stultified."

further as regards the issue relating to inherent power of the High Court under Section 482 CrPC is unwarranted. We would simply reiterate that Section 482 begins with a non obstante clause to state:

"482. Saving of inherent powers of High Court.-- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."

A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J.

"abuse of the process of the court or other extraordinary situation excites the Court's jurisdiction. The limitation is self-restraint, nothing more". (Raj Kapoor case [Raj Kapoor v. State, (1980) 1 SCC 43 :

1980 SCC (Cri) 72] , SCC p. 48, para 10) We venture to add a further reason in support. Since Section 397 CrPC is attracted against all orders other than interlocutory, a contrary view would limit the availability of inherent powers under Section 482 CrPC only to petty interlocutory orders! A situation wholly unwarranted and undesirable.

4. The impugned orders have been passed by the Trial Court exsercising powers under Sections 451 and 457 of the Code of Criminal Procedure, 1973 and it is well settled that such orders are not interlocutory orders and Revision against them is not barred under Section 397 (2) of the Code of Criminal Procedure and such orders are amenable to the Revisional jurisdiction of the Court conferred under Section 397 Cr.P.C. In this regard we may usefully refer to Milind v. State of Maharashtra [2003 SCC Online Bom. 141], Amar Nath v. State of Haryana [1977 (4) SCC 137], Bharat Heavy Electricals Ltd v. State [1981 Cr.L.J.

1529 (AP)], Indra Kumar Faredun Irani v. State of Maharashtra [1989 Cr.L.J 1439] and V. Vinoth v. State [Crl. R.C No. 1152/2018].

5. In Prabhu Chawla case (supra) the Hon'ble Apex Court has held that 'even so, a general principle pervades this branch of law when a specific provision is made: easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same Code......it is true that Section 482 is pervasive it should not subvert legal interdicts written into the same Code, such, for instance, in Section 397 (2).....The High Court must exercise the inherent power very sparingly. One such case would be desirability of the quashing of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction'. In substance, though there is no total ban on the exercise of inherent power 'where abuse of the process of the court or other extraordinary situation excites the Court's jurisdiction' yet no such exigencies or extraordinary situations have been pointed out by the petitioners and this precludes us to over-rule the office objection.

6. Therefore, the objection raised by the office is sustained.

7. However, two weeks time is granted to the petitioners to take corrective measures.

8. List after two weeks.

                                    (Prakash Shrivastava)                  (Virender Singh)
                                         Judge                                   Judge
              VIVEK

Digitally signed by VIVEK KUMAR TRIPATHI Date: 2021.03.31 11:19:54 +05'30'