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CODE OF CRIMINAL PROCEDURE, 1973: ss. 482 and 397 – Petition seeking to quash order of Judicial Magistrate issuing summons – Dismissed by High Court holding that remedy u/s 397 could be availed of – HELD: Issuance of summons is not an interlocutory order within the meaning of s.397 – Only because a revision petition is maintainable, it would not constitute a bar to entertain an application u/s 482 – Matter remitted to High Court for decision afresh – Alternative remedy – Interlocutory order. A criminal complaint was filed against appellant no. 1, its Chairman and the Managing Director, namely, appellants no. 2 and 3, on the allegations that the ‘Gutkha’ manufactured by the company was found to be adulterated in terms of r.62(1) of the Prevention of Food Adulteration Rules, 1955. The Judicial Magistrate took cognizance and issued summons. The petition filed by the appellants u/s 482 of the Code of Criminal Procedure, 1973 seeking to quash the criminal proceedings was dismissed by the High Court holding that revisional jurisdiction u/s 397 of the Code could be availed of. In the appeal filed by the accused, the question for consideration before the Supreme Court was: Whether an application u/s 482 of the Code of Criminal Procedure, 1973 can be dismissed only on the premise that an alternative remedy of filing a revision application u/s 397 of the Code was available? = Allowing the appeal, the Court HELD: Issuance of summons is not an interlocutory order within the meaning of s. 397 of the Code of Criminal Procedure, 1973. Only because a revision petition is maintainable, the same by itself would not constitute a bar for entertaining an application under s. 482 of the Code. The power of the High Court can be exercised not only in terms of s. 482 but also in terms of s. 483 of the Code. Inherent power of the High Court is not conferred by statute but has merely been saved thereunder. Thus, it cannot be said that the jurisdiction of the High Court would be held to be barred only because the revisional jurisdiction could also be availed of. The judgment of the High Court is set aside. It would consider the matter afresh on merits. [Para 8, 10 and 16] [848-C-D; 849-A; 854-C-D] R.P. Kapur v. State of Punjab AIR 1960 SC 866; Som Mittal v. Govt. of Karnataka (2008) 3 SCC 574; Surya Dev Rai v. Ram Chander Rai and others (2003) 6 SCC 675; Krishnan and another v. Krishnaveni and another (1997) 4 SCC 241; Adalat Prasad v. Rooplal Jindal and others (2004) 7 SCC 338 and Amar Nath and others v. State of Haryana and others AIR 1977 SC 2185, relied on. G. Sagar Suri v. State of U.P. (2000) 2 SCC 636 and Central Bureau of Investigation v. Ravi Shankar Srivastava (2006) 7 SCC 188, referred to. Vishwanaath Ramkrishna Patil and another v. Ashok Murlidhar Sonar and Anr. 2006 (5) Mh.L.J. 671 and Keki Bomi Dadiseth and others v. State of Maharashtra 2002 (3) Mh.L.J.246, approved. V.K. Jain and others v. Pratap V. Padode and Anr. 2005 (30) Mh.L.J. 778, overruled. Case Law Reference: 2005 (30) Mh.L.J. 778 overruled para 6 AIR 1960 SC 866 relied on para 8 (2008) 3 SCC 574 relied on para 8 (2003) 6 SCC 675 relied on para 8 (1997) 4 SCC 241 relied on para 10 (2004) 7 SCC 338 relied on para 10 AIR 1977 SC 2185 relied on para 11 (2000) 2 SCC 636 referred to para 12 (2006) 7 SCC 188 referred to para 13 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 2055 of 2008. From the Judgment & Order dated 21.12.2006 of the High Court Bombay at Mumbai in Criminal Application No. 7220 of 2005. Siddharth Dave, Neil Hildreth, Praveen Kumar and Tarun Gulati for the Appellants. Madhavi Diwan and Ravindra Keshavrao Adsure for the Respondents.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELALTE JURISDICTION

CRIMINAL APPEAL NO. 2055 OF 2007
(Arising out of SLP (Crl.) No. 2272 of 2007)

Dhariwal Tobaco Products Ltd. and others …. Appellants

Versus

Sate of Maharashtra and another …. Respondents

JUDGMENT

S.B. SINHA, J.

1. Leave granted.

2. Whether an application under Section 482 of the Code of Criminal

Procedure, 1973, (for short `the Code’) can be dismissed only on the

premise that an alternative remedy of filing a revision application under

Section 397 of the Code is available, is the question involved herein.

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3. First Appellant is a company incorporated and registered under the

Companies Act, 1956 and is engaged in the business of manufacturing

Gutkha. Appellant Nos. 2 and 3 are the Chairman and Managing Director

of the company. It is said to be a large organization. It has multi-locational

manufacturing units and each of them is said to be headed by senior

officials of the company, who were responsible for the conduct of its

business. Inter alia on the premise that the samples collected from the

manufacturing unit of appellants at Solapur were found to be adulterated in

terms of Rule 62(1) of the Prevention of Food Adulteration Rules, 1955 (in

short `1955 Rules) providing for restriction on the use of anti-caking agents,

a criminal complaint was filed in the Court of the Judicial Magistrate, First

Class at Akkalkot, Solapur. Cognizance was taken thereof and summons

were issued to the appellants.

4. They filed an application under Section 482 of the Code, which by

reason of the impugned judgment and order dated 21st December, 2006 has

been dismissed, stating :-

“2. The jurisdiction under section 482 of the
said Code has to be exercised sparingly and only
in exceptional cases. As held by this Court in the
case of V.K. Jain and others (Supra) the

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jurisdiction under section 482 of the said Code
will not be exercised if recourse can be taken by
the Applicants to the remedy of filing a Revision
Application under Section 397 of the said Code.
In this view of the matter, the Application is
rejected. Notwithstanding the rejection of this
Application, it will be open for the Applicants to
take out appropriate proceedings before the
appropriate court. All contentions on merits are
kept open.”

5. By an order dated 30th April, 2007 a limited notice was issued. It

reads :-

” Issue notice limited to the question as to
whether the matter should be directed to be
considered afresh by the High Court keeping in
view the fact that other matters wherein similar
contentions have been raised are pending before
the High Court.

Dasti service, in addition is permitted.

Liberty to mention after service is
complete.”

6. Mr. Siddhartha Dave, learned counsel appearing on behalf of

appellants would urge that the High Court committed a serious error in

rejecting the application filed by appellants under Section 482 of the Code

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without entering into the merit of the matter. It was urged that reliance

placed by the High Court on its earlier judgment in V.K. Jain and others v.

Pratap V. Padode and another, [2005 (30) Mh.L.J. 778] rendered by the

learned Single Judge of that Court is contrary to various other decisions of

the same Court inter alia in Vishwanaath Ramkrishna Patil and another v.

Ashok Murlidhar Sonar and another, [ 2006 (5) Mh.L.J. 671 ] and Keki

Bomi Dadiseth and others v. State of Maharashtra, [ 2002 (3) Mh.L.J.

246].

7. Ms. Madhavi Diwan, learned counsel appearing on behalf of the

respondents, on the other hand, contended that having regard to the conduct

of appellants, this Court should not exercise its extra-ordinary jurisdiction

under Article 136 of the Constitution of India, particularly when the power

under Section 482 of the Code should not be used mechanically or

routinely.

8. Indisputably issuance of summons is not an interlocutory order within

the meaning of Section 397 of the Code. This Court in a large number of

decisions beginning from R.P. Kapur v. State of Punjab, AIR 1960 SC 866

to Som Mittal v. Govt. of Karnataka , [ (2008) 3 SCC 574 ] has laid down

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the criterion for entertaining an application under Section 482. Only

because a revision petition is maintainable, the same by itself, in our

considered opinion, would not constitute a bar for entertaining an

application under Section 482 of the Code.

Even where a revision application is barred, as for example the

remedy by way of Section 115 of the Code of Civil Procedure, 1908 this

Court has held that the remedies under Articles 226/227 of the Constitution

of India would be available. (See Surya Dev Rai v. Ram Chander Rai and

others, [ (2003) 6 SCC 675 ] ).

. Even in cases where a second revision before the High Court after

dismissal of the first one by the Court of Sessions is barred under Section

397 (2) of the Code, the inherent power of the Court has been held to be

available.

9. The power of the High Court can be exercised not only in terms of

Section 482 of the Code but also in terms of Section 483 thereof. The said

provision reads thus :-

“483. Duty of High Court to exercise continuous
superintendence over Courts of Judicial

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Magistrates:- Every High Court shall so exercise
its superintendence over the Courts of Judicial
Magistrates subordinate to it as to ensure that there
is an expeditious and proper disposal of cases by
such Magistrates.”

10. Inherent power of the High Court is not conferred by statute but has

merely been saved thereunder. It is, thus, difficult to conceive that the

jurisdiction of the High Court would be held to be barred only because the

revisional jurisdiction could also be availed of.

(See Krishnan and another v. Krishnaveni and another, [ (1997) 4

SCC 241 ] ).

In fact in Adalat Prasad v. Rooplal Jindal and others, [ (2004) (7)

SCC 338) ] to which reference has been made by the learned Single Judge

of the Bombay High Court in V.K. Jain and others (supra) this Court has

clearly opined that when a process is issued, the provisions of Section 482

of the Code can be resorted to.

11. It may be true, as has been noticed by the High Court that thereunder

availability of appellate or revisional jurisdiction of the High Court did not

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fall for its consideration but in our considered opinion it is wholly

preposterous to hold that Adalaat Prasad (supra), so far as it related to

invoking the inherent jurisdiction of the High Court is concerned, did not

lay down good law. The High Court in saying so did not only read the said

judgment in its proper perspective; it misdirected itself in saying so as it did

not pose unto itself a correct question.

In Amar Nath and others v. State of Haryana and others, [ AIR 1977

SC 2185 ] it was opined :-

“….It was only with the passing of the impugned
order that the proceedings started and the question
of the appellants being put up for trial arose for the
first time. This was undoubtedly a valuable right
which the appellants possessed and which was
being denied to them by the impugned order. It
cannot, therefore, be said that the appellants were
not at all prejudiced, or that any right of their’s
was not involved by the impugned order. It is
difficult to hold that the impugned order
summoning the appellants straightaway was
merely an interlocutory order which could not be
revised by the High Court under sub-sections (1)
and (2) of Section 397 of the 1973 Code. The
order of the Judicial Magistrate summoning the
appellants in the circumstances of the present case,
particularly having regard to what had preceded,
was undoubtedly a matter of moment, and a
valuable right of the appellants had been taken
away by the Magistrate in passing an order prima
facie in sheer mechanical fashion without applying
his mind. We are, therefore, satisfied that the order
impugned was one which was a matter of moment
and which did involve a decision regarding the
rights of the appellants. If the appellants were not
summoned, then they could not have faced the

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trial at all, but by compelling the appellants to face
a trial without proper application of mind cannot
be held to be an interlocutory matter but one
which decided a serious question as to the rights
of the appellants to be put on trial.”

12. We may notice that in G. Sagar Suri v. State of U.P., [ (2000) 2 SCC

636 ] this Court has held :-

“7. It was submitted by Mr Lalit, learned counsel
for the second respondent that the appellants have
already filed an application in the Court of
Additional Judicial Magistrate for their discharge
and that this Court should not interfere in the
criminal proceedings which are at the threshold.
We do not think that on filing of any application
for discharge, the High Court cannot exercise its
jurisdiction under Section 482 of the Code. In this
connection, reference may be made to two
decisions of this Court in Pepsi Foods Ltd. v.
Special Judicial Magistrate and Ashok Chaturvedi
v. Shitul H. Chanchani wherein it has been
specifically held that though the Magistrate trying
a case has jurisdiction to discharge the accused at
any stage of the trial if he considers the charge to
be groundless but that does not mean that the
accused cannot approach the High Court under
Section 482 of the Code or Article 227 of the
Constitution to have the proceeding quashed
against them when no offence has been made out
against them and still why must they undergo the
agony of a criminal trial.

8. Jurisdiction under Section 482 of the Code has
to be exercised with great care. In exercise of its
jurisdiction the High Court is not to examine the
matter superficially. It is to be seen if a matter,
which is essentially of a civil nature, has been
given a cloak of criminal offence. Criminal
proceedings are not a short cut of other remedies
available in law. Before issuing process a criminal
court has to exercise a great deal of caution. For
the accused it is a serious matter. This Court has
laid certain principles on the basis of which the
High Court is to exercise its jurisdiction under

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Section 482 of the Code. Jurisdiction under this
section has to be exercised to prevent abuse of the
process of any court or otherwise to secure the
ends of justice.”

This Court therein noticed a large number of decisions to opine that

whenever the High Court comes to the conclusion that allowing the

proceeding to continue would be an abuse of the process of court and that

the ends of justice require that the proceedings should be quashed, it would

not hesitate to do so.

13. We may furthermore notice that in Central Bureau of Investigation v.

Ravi Shankar Srivastava, [ (2006) 7 SCC 188 ] this Court while opining that

the High Court in exercise of its jurisdiction under Section 482 of the Code

does not function either as a court of appeal or revision, held :-

“7. Exercise of power under Section 482 of the
Code in a case of this nature is the exception and
not the rule. The section does not confer any new
powers on the High Court. It only saves the
inherent power which the Court possessed before
the enactment of the Code. It envisages three
circumstances under which the inherent
jurisdiction may be exercised, namely, (i) to give
effect to an order under the Code, (ii) to prevent
abuse of the process of court, and (iii) to otherwise
secure the ends of justice. It is neither possible nor
desirable to lay down any inflexible rule which
would govern the exercise of inherent jurisdiction.
No legislative enactment dealing with procedure
can provide for all cases that may possibly arise.
The courts, therefore, have inherent powers apart
from express provisions of law which are
necessary for proper discharge of functions and

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duties imposed upon them by law. That is the
doctrine which finds expression in the section
which merely recognises and preserves inherent
powers of the High Courts. All courts, whether
civil or criminal possess, in the absence of any
express provision, as inherent in their constitution,
all such powers as are necessary to do the right
and to undo a wrong in the course of
administration of justice on the principle “quando
lex aliquid alicui concedit, concedere videtur et id
sine quo res ipsae esse non potest” (when the law
gives a person anything it gives him that without
which it cannot exist). While exercising powers
under the section, the court does not function as a
court of appeal or revision. Inherent jurisdiction
under the section though wide has to be exercised
sparingly, carefully and with caution and only
when such exercise is justified by the tests
specifically laid down in the section itself. It is to
be exercised ex debito justitiae to do real and
substantial justice for the administration of which
alone the courts exist. Authority of the court exists
for advancement of justice and if any attempt is
made to abuse that authority so as to produce
injustice, the court has power to prevent abuse. It
would be an abuse of the process of the court to
allow any action which would result in injustice
and prevent promotion of justice. In exercise of
the powers the court would be justified to quash
any proceeding if it finds that
initiation/continuance of it amounts to abuse of the
process of court or quashing of these proceedings
would otherwise serve the ends of justice. When
no offence is disclosed by the complaint, the court
may examine the question of fact. When a
complaint is sought to be quashed, it is permissible
to look into the materials to assess what the
complainant has alleged and whether any offence
is made out even if the allegations are accepted in
toto.”

14. It is interesting to note that the Bombay High Court itself has taken a

different view. In a decision rendered by the Aurangabad Bench of the

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Bombay High Court, a learned Single Judge in Vishwanath Ramkrishna

Patil (supra), where a similar question was raised, opined as under :-

“It is difficult to curtail this remedy merely
because there is a revisional remedy available. The
alternate remedy is no bar to invoke power under
Article 227. What is required as to see the facts
and circumstances of the case while entertaining
such petition under Article 227 of the Constitution
and/or under Section 482 of Criminal Procedure
Code. The view therefore, as taken in both the
cases V.K. Jain and Saket Gore, no way expressed
total bar. If no case is made out by the petitioner or
the party to invoke the inherent power as
contemplated under Section 482 of Criminal
Procedure Code and/or the discretionary or the
supervisory power under Article 227 of the
Constitution of India they may approach to the
revisional Court, against the order of issuance of
process.

11. Taking into consideration the facts and
circumstances of those cases, the learned Judge
has observed in V.K. Jain and Saket Gore (supra)
that it would be appropriate for the parties to file
revision application against the order of issuance
of process. There is nothing mentioned and/or
even observed that there is total bar to file petition
under Section 482 of Criminal Procedure Code
and/or petition under Article 227 of the
Constitution of India.

12. The Apex Court’s decision already referred
above, nowhere prohibited or expressly barred to
invoke Section 482 of Criminal Procedure Code or
Article 227 of the Constitution of India against the
order of issuance of process.”

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In Keki Bomi Dadiseth (supra), another learned Single Judge of the

Nagpur Bench of the Bombay High Court entertained an application under

Section 482 of the Code, where summons have been served for commission

of offence under the Prevention of Food Adulteration Act, 1954, holding:-

“33. In view of the ratio laid down by the Apex
Court in the above referred cases, it is well settled
that inherent power under Section 482 can be
invoked by the accused in the appropriate case
irrespective of other factors and this Court can
exercise the same in a deserving case within
parametres of law and, therefore, the contentions
canvassed by the learned Additional Public
Prosecutor in this regard are misconceived and
same are rejected.”

15. In our considered opinion V.K. Jain (supra) does not lay down a good

law. It is over-ruled accordingly.

16. For the reasons aforementioned the impugned judgment cannot be

sustained which is set aside accordingly. The High Court is directed to

consider the matter afresh on merits. The appeal is allowed.

……………………….J.

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[ S.B. Sinha ]

……………………….J.
[ Cyriac Joseph ]
New Delhi
December 17, 2008

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