Vikram Bakshi Vs State anr - Citation 1208688 - Court Judgment

Judgment:

* IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.M.C. No.2493/2017 VIKRAM BAKSHI ....

... Petitioner

Through: Mr.Nikhil Ahuja, Ms.Rudrani Tyagi, Advs. Versus STATE & ANR Through: Mr.Hirein Sharma, APP. ......Respondents Inspector Shambhu Nath, PS EOW Mr.Deepak Khosla, R-2 in person. CORAM:-

"HON’BLE MR. JUSTICE C. HARI SHANKAR % ORDER C. HARI SHANKAR, J.

07.09.2017 1. This order disposes of a preliminary objection, raised by respondent No.2 in the present proceedings, regarding the maintainability of this petition (Crl.M.C. 2493/2017) under Section 482 of the Code of Criminal Procedure, 1973 (hereinafter referred as “the Cr PC”).

2. Exhaustive arguments, by Ms Rebecca John and Mr Kirti Uppal, learned Senior Counsel appearing on behalf of the petitioner, on the question of issuance of notice and grant of interim relief, in the present petition, were heard by me. Before they were completed, Mr Khosla (Mr. Deepak Khosla) raised a preliminary objection, to the Crl.M.C. No.2493/2017 Page 1 of 56 effect that the present petition was not maintainable under Section 482 of the Cr.P.C. He also insisted that I pass an order on the said preliminary objection, before proceeding to hear the petitioner, further, on the question of issue of notice in the present petition. In support of the said request, Mr Khosla also sought to place reliance on various judicial authorities. Inasmuch as I am passing the present order, acceding to the said request made by Mr Khosla, it is not necessary to refer to the said decisions.

3. The petitioner, in the present petition, has assailed the order, dated 22nd June, 2017, passed by the Additional Chief Metropolitan Magistrate (South) (hereinafter referred to as “the ACMM”) in Case No.5450/2017 (Deepak Khosla v. Vikram Bakshi & Anr.), which was an application filed by Mr Khosla under Section 94 of the Cr PC. By the impugned order, the ACMM has expressed his prima facie satisfaction that forged documents were lying at the addresses mentioned in the application filed by Mr Khosla and has, therefore, proceeded to direct the Deputy Commissioner of Police of New Delhi, South East District, to conduct a search, for finding the said alleged documents, in terms of Section 94 of Cr PC., and file a report, alongwith the recovered documents, before the Court. The said directions, as contained in the impugned order dated 22nd June, 2017, read thus:-

"“The Court is satisfied that there are prima facie reasons to believe that forged documents enumerated in table A of para 4 of the application may be lying at the addresses mentioned in para No.13 of the application. Accordingly, Crl.M.C. No.2493/2017 Page 2 of 56 Dy. Commissioner of Police District New Delhi and South-East are directed to get a search, for finding the alleged documents enumerated in para No.4 of the application, conducted in terms of Section 94 Cr.P.C. and file a report along with the recovered documents in this Court expeditiously”.

4. Having been issued the said directions, the ACMM renotified the matter for 04th July 2017.

5. As the present order is limited to adjudicating on the preliminary objection, raised by Mr Khosla, regarding the maintainability of the present petition under Section 482 of the Cr.P.C, I am not adverting to the detailed facts of the case. Suffice it to state that, by the present petition under Section 482 of Cr.P.C., the petitioner has prayed that the aforementioned order dated 22nd June, 2017, passed by the learned ACMM, be set aside.

6. Mr Khosla has emphatically asserted that the present petition is not maintainable under Section 482 of Cr.P.C., and, therefore, deserves to be dismissed at the threshold, without issuance of notice thereon. He has premised the said contention on the following propositions (to the extent appropriate, the submissions of Mr Khosla have been reproduced verbatim): (i) The impugned order is in the nature of a final order. (ii) “Invocation of the inherent powers of this Hon‟ble Court under Section 482 of the CRPC is barred in relation to a challenge to an order that is in the nature of a „final order‟.” Crl.M.C. No.2493/2017 Page 3 of 56 (iii) “If there is a bar by any specific provision of law against the exercise of a particular power, or against the exercise of power for a particular purpose and/ or for a particular person, or if there be a specific statutory power or provision for a certain purpose, then Section 482 of the CrPC cannot be pressed into service by the High Court or be resorted to by it.” (iv) Though the above proposition, raised by Mr Khosla, was admittedly discountenanced by the Supreme Court in its recent pronouncement in Prabhu Chawla v State of Rajasthan, (2016) 16 SCC30 the said decision was per incuriam, for the following reasons: (a) “It ignores the settlement of the proposition on inherent powers relied upon by the 2-Member Bench in the case of Mohit alias Sonu vs. State of U.P., (2013) 7 SCC789under Section 482 of the Cr.P.C., which proposition was settled by a 3-Member Bench judgment delivered in the case of Padam Sen & Anr. Vs. State of Uttar Pradesh (AIR1961SC218, and also relies upon a judgment delivered by a 4- Member Bench under the Code of Civil Procedure delivered in the case of Manohar Lal Chopra Vs. Rai Bahadur Rao Raja Seth Hiralal (AIR1962SC527.” The proposition that was settled in these 2 judgements was that, where there is a prohibition on exercise of a particular power, the inherent power vesting in the Court, whether relatable to Section Crl.M.C. No.2493/2017 Page 4 of 56 151 of the CPC, 1908, (hereinafter referred to as “the CPC”) or Section 482 of the Cr PC, could not be invoked, as this would amount to overriding the legislative embargo specifically engrafted by statute. (b) “It could not “ignore the proposition settled by a 3-Member Bench in the case of Amar Nath and Madhu Limaye, all the more so since these two judgments have been upheld by a 4-Member Bench in the case of V.C. Shukla Vs. CBI”. (v) Though Mohit (supra) was rendered in the context of the CPC, the judgments in Palaniappa Gounder v. State of Tamil Nadu, (1977) 2 SCC634(para

3) and State v Navjot Sandhu, (2003) 6 SCC641(paras 25-29), rendered under the Cr PC, postulated the same proposition. (vi) “The 3-Member Bench in Prabhu Chawla’s case proceeded on the premise that it is upsetting the ratio settled merely by a 2-Member Bench in the case of Mohit alias Sonu Vs. State of U.P., not duly appreciating that Mohit alias Sonu relied upon judgments delivered earlier by a 4-Member Bench, another 4 Member Bench and 3-Member Benches”. (vii) “The discretion ordinarily available to” this Court “to interpret and apply judgements of the Hon‟ble Supreme Court is no longer present, Since the Hon‟ble Supreme Court‟s judgments have already been interpreted by a 3-Member Bench Crl.M.C. No.2493/2017 Page 5 of 56 of this Hon‟ble Court in 1978, and the ratio therein has already been culled out by the aforesaid Bench in an unequivocal manner which clearly applies - and unarguably so - to the present proceedings.” (viii) In the circumstances, only one of the following two options were available to this Court: a) Option 1: To accept and abide by the aforesaid 3- Member Bench judgment, and adapt its ratio decidendi to the present proceedings; Or b) Option 2: The following sequence of steps/ events would emerge in the nature of exercise of the 2nd option: i. This Hon‟ble Court would refer the matter to the Hon‟ble the (acting) Chief Justice of the Hon‟ble Delhi High Court to consider the reasoning of this Hon‟ble Court not to abide by the aforesaid 3-Member Bench judgment delivered in 1978, with the request/recommendation to refer the matter to a 3-Member Bench to consider whether or not the distinctions sought to be raised by the ld. Presiding Officer of this Hon‟ble Court that justify the Hon‟ble High Court of Delhi not following an earlier precedent settled by its 3- Member Bench in 1978 are merited or not: Crl.M.C. No.2493/2017 Page 6 of 56 ii. If the Hon‟ble (acting) Chief Justice is satisfied with the reasoning put forward by this Hon‟ble Court, a 3-member Bench would be constituted for the aforesaid purpose; iii. However, the corollary of the Hon‟ble (acting) Chief Justice not being satisfied with the reasoning put forward by the learned Presiding Officer of this Hon‟ble Court would be that the matter would be remanded back to this Hon‟ble Court to abide by the aforesaid 3-Member Bench judgment. [Note: Ordinarily, the Hon‟ble (acting) Chief Justice would be bound to refer the matter to a 3- Member Bench, the constitution of which would be, again, ordinarily, more in the nature of a “ministerial” act on the part of the Hon‟ble (acting) Chief Justice].. iv. If the 3-member Bench is constituted, then the following 2 possible (mutually exclusive/alternative) consequences emerge: a) Alternative 1: If the 3-Member Bench is not an agreement with the distinctions sought to be raised by the learned Presiding Officer of this Hon‟ble Court for not following the earlier precedent of 1978, it Crl.M.C. No.2493/2017 Page 7 of 56 shall refer the matter back to this Hon‟ble Court, whose consequence would be to bind this Hon‟ble Court to follow the same judicial precedent of 1978: Alternatively:-

"b) Alternative 2:It would be the exclusive prerogative of the 3-Member Bench to decided whether or not the distinctions raised by the learned Presiding Officer of this Hon‟ble Court are tenable, and, if so, as it, itself, cannot differ from a Bench of co- ordinate jurisdiction, to, similarly, request/recommend the Hon‟ble (acting) Chief Justice to refer the matter to a yet larger Bench (say, 5-Member Bench) for a final and binding decision on this matter. v. If the Hon‟ble (acting) Chief Justice accepts the reasoning underlying the request/recommendation of the 3-Member Bench to constitute a larger Bench, such Bench shall be constituted, but whose decision shall then be final, and which decision may be to either overturn the decision of the earlier 3-Member Bench delivered in 1978, or it may very well be that it upholds and Crl.M.C. No.2493/2017 Page 8 of 56 endorsees the correctness of the same, as the objections of the learned presiding option of this Hon‟ble Court are not binding upon it (as if it‟s overturning the early decision is some sort of ministerial act on its part).” (ix) While this Court “has the jurisdictional prerogative to abide by the preceding of 1978, however, it does not have the jurisdictional prerogative to differ with the precedent of 1978, as the prerogative to differ lie only (eventually) with a 5- Member (or large) bench to be constituted by Hon‟ble the (acting) Chief Justice for the purpose”, to the above role, the following three exceptions alone were available: (a) First exception: If the earlier precedent set by a larger Bench of this Hon‟ble Court in 1978 was an elucidation of the law merely on the basis of its own reasoning, but not on the basis of its interpretation and /or adaption of precedents that (it felt) bound it, and if this Hon‟ble Court is presented with the precedents of a stature that are superior to the stature of a 3-Member Bench of this Hon‟ble Court passed subsequent to the date of the precedent laid down by the earlier 3-Member Bench (say, even by a 1-Member Bench of the Hon‟ble Supreme Court): or Crl.M.C. No.2493/2017 Page 9 of 56 (b) Second exception: This Hon‟ble Court is presented with substantive (and not merely cosmetic) reasoning not considered in the precedent settled by the earlier 3- Member Bench in 1978, again, it may be open for the ld. Presiding Officer of this Hon‟ble Court to deviate from the ratio decidendi settled by the earlier 3-Member Bench in 1978. (c) Third exception: That the precedent cited is a “nullity” in law and is, therefore, void ab initio as if non est, on the principles contained, inter alia, in Section 44 of the Evidence Act.” 7. Legalese and logomachy aside, the submissions of Mr Khosla may be condensed into the following propositions: (i) Invocation of Section 482 of the Cr PC is barred where alternate remedy is available thereunder. (ii) The impugned order, dated 22nd June 2017, is a final order. As such, it was revisable, by the Sessions Court, under Section 399 of the Cr PC. Per sequitur, this Court is proscribed from exercising, in respect of the said order, its power under Section 482. (iii) Though Prabhu Chawla (supra) holds otherwise, the said decision is per incuriam. (iv) A Full Bench of this Court has also pronounced on the issue in Gopal Dass v State, 1978 Cri LJ1978 This Court is Crl.M.C. No.2493/2017 Page 10 of 56 bound thereby. (The lengthy dissertation, thereafter, on the “two options” available to me in the alternative, are totally irrelevant, and need not, therefore, detain this order, inasmuch as no occasion, to exercise either of the said “two options” arises in the present case, as would be explained hereinafter.) 8. In response to the submissions of Mr Khosla, the petitioner avers thus: (i) The inherent powers of this Court, as conferred by Section 482 of the Cr PC, are over and above any other provision contained therein. This is made apparent by the non obstante clause with which Section 482 begins. Though an order issuing summons is not an “interlocutory order” within te meaning of Section 397(2) of the Cr PC, and a revision petition is, therefore, maintainable thereagainst, that would not foreclose the jurisdiction, of this Court, under Section 482. Reliance was placed, in this context, on the following authorities: (a) Dhariwal Tobacco Products Ltd v State of Maharashtra, (2009) 2 SCC370 (b) Urmilla Devi v Yudhvir Singh, (2013) 13 SCC624 (c) Amarnath v State of Haryana, AIR1977SC2815 Crl.M.C. No.2493/2017 Page 11 of 56 (d) Madhu Limaye v State of Maharashtra, AIR1978SC47 (e) Krishnan v Krishnaveni, (1997) 4 SCC241and (f) Prabhu Chawla v State of Rajasthan, (2016) 16 SCC30 (ii) The passage, from Manohar Lal Chopra (supra), extracted in Mohit (supra), is from the minority dissent in the said case. The majority view in Manohar Lal Chopra (supra) is represented by paras 24, 25 and 27 of the judgement. (iii) In any case, Mohit (supra) stood overruled by Prabhu Chawla (supra).

9. Though, in view of the discussion that would proceed hereinafter, no reference, to the specific statutory inflexions contained in any provision of the Cr PC would be necessitated, a holistic pronouncement, on the objection of Mr Khosla, would justify reproduction of Sections 94, 397, 399, 401 and 482 of the Cr PC, as under: “94. Search of place suspected to contain stolen property, forged documents, etc. (1) If a District Magistrate, Sub- divisional Magistrate or Magistrate of the first class, upon information and after such inquiry as he thinks necessary, has reason to believe that any place is used for the deposit or sale of stolen property, or for the deposit, sale or production of any Crl.M.C. No.2493/2017 Page 12 of 56 objectionable article to which this section applies, or that only such objectionable article is deposited in any place, he may by warrant authorise any police officer above the rank of a constable- to enter, with such assistance as may (a) be required, such place, to search the same in the manner (b) specified in the warrant, (c) to take possession of any property or article therein found which he reasonably suspects stolen property or objectionable article to which this section applies, to be (d) to convey such property or article before a Magistrate, or to guard the same on the spot until the offender is taken before a Magistrate, or otherwise to dispose of it in some place of safety, (e) to take into custody and carry before a Magistrate every person found in such place who appears to have been privy to the deposit, sale or production of any such property or article knowing or having reasonable cause to suspect it to be stolen property or, as the case may be, objectionable article to which this section applies. The objectionable articles to which this (2) section applies are- (a) counterfeit coin; Crl.M.C. No.2493/2017 Page 13 of 56 (b) pieces of metal made in contravention of the Metal Tokens Act, 1889 (1 of 1889 ), or brought into India in contravention of any notification for the time being in force under section 11 of the Customs Act, 1962 (52 of 1962 ); counterfeit currency note; counterfeit (c) stamps; (d) forged documents; (e) false seals; (f) obscene objects referred to in section 292 of the Indian Penal Code (45 of 1860 ); (g) instruments or materials used for the production of any of the articles mentioned in clauses (a) to (f).” “397. Calling for records to exercise powers of revision. (1) The High Court or any Sessions Judge may call for 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 of any finding, sentence or order,- recorded or passed, and as 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. to Crl.M.C. No.2493/2017 Page 14 of 56 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 purposes 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.” “399. Sessions Judge' s powers of revision. In the case of any proceeding the record of (1) which has been called for by himself, the Sessions judge may exercise all or any of the powers which may be exercised by the High Court under sub- section (1) of section 401. (2) Where any proceeding by way of revision is commenced before a Sessions Judge under sub- section (1), the provisions of sub- sections (2), (3), (4) and (5) of section 401 shall, so far as may be, apply to such proceeding and references in the said sub- sections to the High Court shall be construed as references to the Sessions Judge. (3) Where any application for revision is made by or on behalf of an person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the Crl.M.C. No.2493/2017 Page 15 of 56 instance of such person shall be entertained by the High Court or any other Court.” “401. High Court' s power of revision. (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by sections 386, 389, 390 and 391 or on a Court of Session by section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this Code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court Is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for Crl.M.C. No.2493/2017 Page 16 of 56 revision as a petition of appeal and deal with the same accordingly.” “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.” 10. The statutory amphitheatre in which the present play has to be enacted having been thus mapped out, the first issue to be examined is whether the impugned order, dated 20th June 2017, of the ACMM, is revisable, under the Cr PC, or not.

11. A juxtaposed reading of Sections 399 and 401 of the Cr PC, vis- à-vis Sections 397 thereof, reveals that the former provisions are in the nature of sequelae to the latter. The substantive provisions, dealing with the powers of revision of the Sessions Judge and the High Court, are Sections 399 and 401 respectively, and the provision governing the calling of records, for exercise of such power of revision, is Section 397.

12. This statutory scheme is significant, only to the extent that, by virtue of the structure thereof, the exception, to “interlocutory orders”, contained in sub-section (2) of Section 397, would apply, proprio vigore, to Sections 399 and 401 of the Cr PC. Crl.M.C. No.2493/2017 Page 17 of 56 13. What, then, is an “interlocutory order”?. The Cr PC contains no definition thereof. This Court is, however, spared the exercise of exploring the intricacies of the expression because of two pronouncements, in Amar Nath v State of Haryana, (1977) 4 SCC137and Madhu Limaye v State of Maharashtra, (1977) 4 SCC551 14. Amar Nath (supra) was concerned with an order summoning the accused. On the issue of whether such an order could be regarded as “interlocutory”, within the meaning of Section 397(2) of the Cr PC, the Supreme Court held, instructively, thus: “4. So far as the second plank of the view of the learned Judge that the order of the Judicial Magistrate in the instant case was an interlocutory order is concerned, it is a matter which merits serious consideration. A history of the criminal legislation in India would manifestly reveal that so far the Code of Criminal Procedure is concerned both in the 1898 Code and 1955 Amendment the widest possible powers of revision had been given to the High Court under Sections 435 and 439 of those Codes. The High Court could examine the propriety of any order — whether final or interlocutory — passed by any Subordinate Court in a criminal matter. No limitation and restriction on the powers of the High Court were placed. But this Court as also the various High Courts in India, by a long course of decisions, confined the exercise of revisional powers only to cases where the impugned order suffered from any error of law or any legal infirmity causing injustice or prejudice to the accused or was manifestly foolish or perverse. These restrictions were placed by the case law, merely as a rule of prudence rather than a rule of law and in suitable cases the High Courts had the undoubted power to interfere with the impugned order even on facts. Sections Crl.M.C. No.2493/2017 Page 18 of 56 435 and 439 being identical in the 1898 Code and 1955 Amendment insofar as they are relevant run thus : „435. (1) The High Court or any Sessions Judge or District Magistrate, or any Sub-divisional Magistrate empowered by the State Government in this behalf, may call for and examine the record of any proceeding before any inferior criminal court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court ....

439. (1) In the case of any proceeding the record of which has been called for by itself or which has been reported for orders, or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance the sentence ; and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in manner provided by Section 429. (2) No order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by pleader in his own defence.‟ In fact the only rider that was put under Section 439 was that where the Court enhanced the sentence the accused had to be given an opportunity of being heard. Crl.M.C. No.2493/2017 Page 19 of 56 the poor accused by 5. The concept of an interlocutory order qua the revisional jurisdiction of the High Court, therefore, was completely foreign to the earlier Code. Subsequently it appears that there had been large number of arrears and the High Courts were flooded with revisions of all kinds against interim or interlocutory orders which led to enormous delay in the disposal of cases and exploitation of the affluent prosecutors. Sometimes interlocutory orders caused harassment to the accused by unnecessarily protracting the trials. It was in the background of these facts that the Law Commission dwelt on this aspect of the matter and in the 14th and 41st Reports submitted by the Commission which formed the basis of the 1973 Code the said Commission suggested revolutionary changes to be made in the powers of the High Courts. The recommendations of the Commission were examined carefully by the Government, keeping in view, the following basic considerations : „(i) an accused person should get a fair trial in accordance with the accepted principles of natural justice ; (ii) every effort should be made to avoid delay in investigation and trial which is harmful not only to the individuals involved but also to society ; and (iii) the procedure should not be complicated and should, to the utmost extent possible, ensure fair deal to the poorer sections of the community.‟ This is clearly mentioned in the Statement of Objects and Reasons accompanying the 1973 Code. Clause (d) of para 5 of the Statement of Objects and Reasons runs thus : “the powers of revision against interlocutory orders are being taken away, as it has been found to be one of the main contributing factors in the delay or disposal of criminal cases ; ” Similarly, replying to the debate in the Lok Sabha on sub- clause (2) of clause 397, Shri Ram Niwas Mirdha, the Minister concerned, observed as follows : Crl.M.C. No.2493/2017 Page 20 of 56 “It was stated before the Select Committee that a large number of appeals against interlocutory orders are filed with the result that the appeals got delayed considerably. Some of the more notorious cases concern big business persons. So, this new provision was also welcomed by most of the witnesses as well as the Select Committee. . . . This was a well-thought out measure so we do not want to delete it.” it would appear Thus that Section 397(2) was incorporated in the 1973 Code with the avowed purpose of cutting out delays and ensuring that the accused persons got a fair trial without much delay and the procedure was not made complicated. Thus the paramount object in inserting this new provision of sub- section (2) of Section 397 was to safeguard the interest of the accused.

6. Let us now proceed to interpret the provisions of Section 397 against the historical background of these facts. Sub-section (2) of Section 397 of the 1973 Code may be extracted thus : “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.” The main question which falls for determination in this appeal is as to what is the connotation of the term “interlocutory order” as appearing in sub-section (2) of Section 397 which bars any revision of such an order by the High Court. The term “interlocutory order” is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary “interlocutory” has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable must be Crl.M.C. No.2493/2017 Page 21 of 56 those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term “interlocutory order” in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revison to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397(2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the purview of the revisional jurisdiction of the High Court. In Central Bank of India v. Gokal Chand, AIR7 1967 SC799 800, this Court while describing the incidents of an interlocutory order, observed as follows : “In the context of Section 38(1), the words “every order of the Controller made under this Act”, though very wide, do, not include interlocutory orders, which are merely procedural and do not affect the rights or liabilities of the parties. In a pending proceeding, the Controller, may pass many interlocutory orders under Sections 36 and 37, such as orders regarding the summoning of witnesses, discovery, production and inspection of documents, issue of a commission for examination Crl.M.C. No.2493/2017 Page 22 of 56 of witnesses, inspection of premises, fixing a date of hearing and the admissibility of a document or the relevancy of a question. All these interlocutory orders are steps final adjudication and for assisting the parties in the prosecution of the pending proceeding they regulate the procedure only and do not affect any right or liability of the parties. their case taken towards the in The aforesaid decision clearly illustrates the nature and incidents of an interlocutory order and the incidents given by this Court constitute sufficient guidelines to interpret the connotation of the words “interlocutory order” as appearing in sub-section (2) of Section 397 of the 1973 Code.

8. Similarly in a later case in Mohan Lal Magan Lal Thacker v. State of Gujarat, AIR1968SC733 this Court pointed out that the finality of an order could not be judged by co-relating that order with the controversy in the complaint. The fact that the controversy still remained alive was irrelevant. In that case this Court held that even though it was an interlocutory order, the order was a final order. Similarly 9. in Baldevdas v Filmistan Distributors (India) (P) Ltd., (1969) 2 SCC201while interpreting the import of the words “case decided” appearing in Section 115 of the Code of Civil Procedure, this Court observed as follows : “A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy ; Apart from this it would appear that under the various provisions of the Letters Patent of the High Courts in India, an appeal lies to a Division Bench from an order passed by a Single Judge and some High Courts have held that even though the order may appear to be an interlocutory one where it does Crl.M.C. No.2493/2017 Page 23 of 56 decide one of the aspects of the rights of the parties it is appealable. For instance, an order of a Single Judge granting a temporary injunction was held by a Full Bench of Allahabad High Court in Standard Glass Beads Factory v. Shri Dhar, AIR1960All 692 as not being an interlocutory order having decided some rights of the parties and was, therefore, appealable. To the same effect are the decisions of the Calcutta High Court in Union of India v. Khetra Mohan Banerjee, AIR1960Cal 190, of the Lahore High Court in Gokal Chand v. Sanwal Das, AIR1920Lah 326, of the Delhi High Court in Begum Aftab Zamani v. Shri Lal Chand Khanna, AIR1969Delhi 85 and of the Jammu and Kashmir High Court in Har Parshad Wall v. Naranjan Nath Matoo, AIR1959J & K139” to that order 10. Applying the aforesaid tests, let us now see whether the order impugned in the instant case can be said to be an interlocutory order as held by the High Court. In the first place, so far as the appellants are concerned, the police had submitted its final report against them and they were released by the Judicial Magistrate. A revision against the Additional Sessions Judge preferred by the complainant had failed. Thus the appellants, by virtue of the order of the Judicial Magistrate as affirmed by the Additional Sessions Judge acquired a valuable right of not being put on trial unless a proper order was made against them. Then came the complaint by Respondent 2 before the Judicial Magistrate which was also dismissed on merits. The Sessions Judge in revision, however, set aside the order dismissing the complaint and ordered further inquiry. The Magistrate on receiving the order of the Sessions Judge summoned the appellants straightaway which meant that the appellants were to be put on trial. So long as the Judicial Magistrate had not passed this Crl.M.C. No.2493/2017 Page 24 of 56 order, no proceedings were started against the appellants, nor were any such proceedings pending against them. 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's passing an order prima facie in a mechanical fashion without applying his mind. We are, 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 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. therefore, satisfied that 11. For these reasons, the order of the Judicial Magistrate, First Class, Karnal dated November 15, 1976 cannot be said to be an interlocutory order and does not fall within the mischief of sub-section (2) of Section 397 of the 1973 Code and is not covered by the same. That being the position, a revision against this order was fully competent under Section 397(1) or under Crl.M.C. No.2493/2017 Page 25 of 56 Section 482 of the 1973 Code, because the scope of both these sections in a matter of this kind is more or less the same.” 15. Madhu Limaye (supra) wholeheartedly endorses Amar Nath (supra). Paras 8 to 16 of the report, which carry the ratio decidendi thereof, read thus: “8. Under Section 435 of the 1898 Code the High Court had the power to “call for and examine the record of any proceeding before any inferior criminal court situate within the local limits of its .… jurisdiction for the purpose of satisfying itself ... as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court”, and then to pass the necessary orders in accordance with the law engrafted in any of the sections following Section 435. Apart from the revisional power, the High Court possessed and possesses the inherent powers to be exercised ex debito justitiae to do the real and the substantial justice for the administration of which alone Courts exist. In express language this power was recognized and saved in Section 561-A of the old Code. Under Section 397(1) of the 1973 Code, revisional power has been conferred on the High Court in terms which are identical to those found in Section 435 of the 1898 Code. Similar is the position apropos the inherent powers of the High Court. We may read the language of Section 482 (corresponding to Section 561-A of the old Code) of the 1973 Code. It says: „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.‟ Crl.M.C. No.2493/2017 Page 26 of 56 At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions: „(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party; (2) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; (3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.‟ the the other. Sometimes 9. In most of the cases decided during several decades the inherent power of the High Court has been invoked for the quashing of a criminal proceeding on one ground or revisional jurisdiction of the High Court has also been resorted to for the same kind of relief by challenging the order taking cognizance or issuing processes or framing charge on the grounds that the Court had no jurisdiction to take cognizance and proceed with the trial, that the issuance of process was wholly illegal or void, or that no charge could be framed as no offence was made out on the allegations made or the evidence adduced in Court. In the background aforesaid, we proceed to examine as to what is the correct position of law after the introduction of a provision like sub-section (2) of Section 397 in the 1973 Code.

10. As pointed out in Amar Nath case the purpose of putting a bar on the power of revision in relation to any interlocutory order passed in an appeal, inquiry, trial or other proceeding, is to bring about expeditious disposal of the cases finally. More often than not, the revisional power of the High Court was resorted to in relation to interlocutory orders delaying the final disposal of the Crl.M.C. No.2493/2017 Page 27 of 56 proceedings. The Legislature in its wisdom decided to check this delay by introducing sub-section (2) in Section 397. On the one hand, a bar has been put in the way of the High Court (as also of the Sessions Judge) for exercise of the revisional power in relation to any interlocutory order, on the other, the power has been conferred in almost the same terms as it was in the 1898 Code. On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also, “shall be deemed to limit or affect the inherent powers of the High Court”, But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out?. In our opinion, a happy solution of this problem 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 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 is absolutely necessary, Crl.M.C. No.2493/2017 Page 28 of 56 of a criminal proceeding initiated illegally, vexatiously or as being without jurisdiction. Take for example a case where a prosecution is launched under the Prevention of Corruption Act without a sanction, then the trial of the accused will be without jurisdiction and even after his acquittal a second trial, after proper sanction will not be barred on the doctrine of autrefois acquit. Even assuming, although we shall presently show that it is not so, that in such a case an order of the Court taking cognizance or issuing processes is an interlocutory order, does it stand to reason to say that inherent power of the High Court cannot be exercised for stopping the criminal proceeding as early as possible, instead of harassing the accused up to the end?. 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. In R.P. Kapur v. State of Punjab, AIR1960SC11 866, Gajendragadkar, J., as he then was, delivering the judgment of this Court pointed out, if we may say so with respect, very succinctly the scope of the inherent power of the High Court for the purpose of quashing a criminal proceeding. Says the learned Judge at pp. 392-93: „Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this Crl.M.C. No.2493/2017 Page 29 of 56 for instance, inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction this may, furnish cases under category. Cases may also arise where the allegations in the first information report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the first information report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to Crl.M.C. No.2493/2017 Page 30 of 56 in question. prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained.‟ In We think the law as stated above is not affected by Section 397(2) of the new Code. It still holds good in accordance with Section 482.

12. Ordinarily expression “interlocutory order” has been understood and taken to mean as a converse of the term “final order”. In volume 22 of the third edition of Halsbury's Laws of England at p. 742, however, it has been stated in para 1606: generally and the „... a judgment or order may be final for one purpose and interlocutory for another, or final as to part and interlocutory as to part. The meaning of the two words must therefore be considered separately in relation to the particular purpose for which it is required.‟ In para 1607 it is said: „In general a judgment or order which determines the principal matter in question is termed „final‟.‟ In para 1608 at pp. 744 and 745 we find the words: Crl.M.C. No.2493/2017 Page 31 of 56 „An order which does not deal with the final rights of the parties, but either (1) is made before judgment, and gives no final decision on the matters in dispute, but is merely on a matter of procedure, or (2) is made after judgment, and merely directs how the declaration of right already given in the final judgment, are to be worked out, is termed „interlocutory‟. An interlocutory order, though not conclusive of the main dispute, may be conclusive as to the subordinate matter with which it deals.‟ 13. In S. Kuppuswami Rao v. King, AIR1949FC1 Kania, C.J.

delivering the judgment of the Court has referred to some English decisions at pp. 185 and 186. Lord Esher, M.R. said in Salaman v. Warner, (1891) 1 QB734 „If their decision, whichever way it is given, will, if it stands, finally dispose of the matter in dispute, I think that for the purposes of these rules it is final. On the other hand, if their decision, if given in one way, will finally dispose of the matter in dispute but, if given in the other, will allow the action to go on, final, but then interlocutory.” is not I think it To the same effect are the observations quoted from the judgments of Fry, L.J.

and Lopes, L.J.: „Applying the said test, almost on facts similar to the ones in the instant case, it was held that the order in revision passed by the High Court [at that time there was no bar like Section 397(2)]. was not a “final order” within the meaning of Section 205(1) of the Government of India Act, 1935. It is to be noticed that the test laid down therein was that if the objection of the accused succeeded, the proceeding could have ended but not vice versa. The order can be said to be a final order only if, in either event, the action will be determined. In our Crl.M.C. No.2493/2017 Page 32 of 56 the words opinion if this strict test were to be applied in interpreting „interlocutory order‟ occurring in Section 397(2), then the order taking cognizance of an offence by a Court, whether it is so done illegally or without jurisdiction, will not be a final order and hence will be an interlocutory one. Even so, as we have said above, the inherent power of the High Court can be invoked for quashing such a criminal proceeding. But in our judgment such an interpretation and the universal application of the principle that what is not a final order must be an interlocutory order is neither warranted nor justified. If it were so it will render almost nugatory the revisional power of the Sessions Court or the High Court conferred on it by Section 397(1). On such a strict interpretation, only those orders would be revisable which are orders passed on the final determination of the action but are not appealable under Chapter XXIX of the Code. This does not seem to be the intention of the Legislature when it retained the revisional power of the High Court in terms identical to the one in the 1898 Code. In what cases then the High Court will examine the legality or the propriety of an order or the legality of any proceeding of an inferior criminal court?. Is it circumscribed to examine only such proceeding which is brought for its examination after the final determination and wherein no appeal lies?. Such cases will be very few and far between. It has been pointed out repeatedly, example, River Wear Commissioners v. William Adamson (1876-77) 2 AC743and R.M.D. Chamarbaugwalla v. Union of India, AIR1957SC628 that although the words occurring in a particular statute are plain and unambiguous, they have to be interpreted in a manner which would fit in the context of the other provisions of the statute and bring about the real vide for Crl.M.C. No.2493/2017 Page 33 of 56 in relation that power intention of the Legislature. On the one hand, the Legislature kept intact the revisional power of the High Court and, on the other, it put a bar on the exercise of to any interlocutory order. In such a situation it appears to us that the real intention of the Legislature was not to equate the expression “interlocutory order” as invariably being converse of the words “final order”. There may be an order passed during the course of a proceeding which may not be final in the sense noticed in Kuppuswami case, but, yet it may not be an interlocutory order — pure or simple. Some kinds of order may fall in between the two. By a rule of harmonious construction, we think that the bar in sub-section (2) of Section 397 is not meant to be attracted to such kinds of intermediate orders. They may not be final orders for the purposes of Article 134 of the Constitution, yet it would not be correct to characterise them as merely interlocutory orders within the meaning of Section 397(2). It is neither advisable, nor possible, to make a catalogue of orders to demonstrate which kinds of orders would be merely, purely or simply interlocutory and which kinds of orders would be final, and then to prepare an exhaustive list of those types of orders which will fall in between the two. The first two kinds are wellknown and can be culled out from many decided cases. We may, however, indicate that the type of order with which we are concerned in this case, even though it may not be final in one sense, is surely not interlocutory so as to attract the bar of sub-section (2) of Section 397. In our opinion it must be taken to be an order of the type falling in the middle course.

14. In passing, for the sake of explaining ourselves, we may refer to what has been said by Kania, C.J.

Crl.M.C. No.2493/2017 Page 34 of 56 in Kuppuswami case at pp. 187 by quoting a few words from Sir George Lowndes in the case of V.M. Abdul Rahman v. D.K. Cassim and Sons, AIR1933PC58 The learned Law Lord said with reference to the order under consideration in that case: „The effect of the order from which it is here sought to appeal was not to dispose finally of the rights of the parties. It no doubt decided an important, and even a vital issue in the case, but it left the suit alive, and provided for its trial in the ordinary way.‟ Many a time a question arose in India as to what is the exact meaning of the phrase “case decided” occurring in Section 115 of the Code of Civil Procedure. Some High Courts had taken the view that it meant the final order passed on final determination of the action. Many others had, however, opined that even interlocutory orders were covered by the said term. This Court struck a mean and it did not approve of either of the two extreme lines. In Baldevdas v. Filmistan Distributors (India) Pvt. Ltd., (1969) 2 SCC201it has been pointed out: „A case may be said to be decided, if the Court adjudicates for the purposes of the suit some right or obligation of the parties in controversy.‟ We may give a clear example of an order in a civil case which may not be a final order within the meaning of Article 133(1) of the Constitution, yet it will not be purely or simply of an interlocutory character. Suppose for example, a defendant raises the plea of jurisdiction of a particular Court to try the suit or the bar of limitation and succeeds, then the action is determined finally in that Court. But if the point is decided against him the suit proceeds. Of course, in a given case the point raised may be such that it is interwoven and inter-connected with the other issues in the case, and that it may not be possible to decide it under Order 14 Rule 2 of the Code of Civil Procedure as a preliminary point of law. But, if it is a pure point of law and is decided one way or the other, Crl.M.C. No.2493/2017 Page 35 of 56 then the order deciding such a point may not be interlocutory, albeit — may not be final either. Surely, it will be a case decided, as pointed out by this Court in some decisions, within the meaning of Section 115 of the Code of Civil Procedure. We think it would be just and proper to apply the same kind of test for finding out the real meaning of the expression “interlocutory order” occurring in Section 397(2). the meaning of 15. In Amar Nath case, reference has been made to the decision of this Court in Mohan Lal Magan Lal Thacker v. State of Gujarat, AIR1968SC733 After an enquiry under Section 476 of the 1898 Code an order was made directing the filing of a complaint against the appellant. It was affirmed by the High Court. The matter came to this Court on grant of a certificate under Article 134(1)(c). A question arose whether the order was a the said “final order” within constitutional provision. Shelat, J., delivering the judgment on behalf of himself and two other learned Judges, said that it was a final order. The dissenting judgment was given by Bachawat, J., on behalf of himself and one other learned Judge. In the majority decision four tests were culled out from some English decisions. They are found enumerated at p.

688. One of the tests is “if the order in question is reversed would the action have to go on?.” Applying that test to the facts of the instant case it would be noticed that if the plea of the appellant succeeds and the order of the Sessions Judge is reversed, the criminal proceeding as initiated and instituted against him cannot go on. If, however, he loses on the merits of the preliminary point the proceeding will go on. Applying the test of Kuppuswami case such an order will not be a final order. But applying the fourth test noted at p. 688 in Mohan Lal case it would be a final order. The real point of distinction, however, is to be found at p. 693 in the judgment of Shelat, J.

The passage runs thus: Crl.M.C. No.2493/2017 Page 36 of 56 „As observed in Ramesh v. Gendalal Motilal Patni, AIR1966SC1445 the finality of that order was not to be judged by co-relating that order with the controversy in the complaint viz. whether the appellant had committed the offence charged against him therein. The fact that that controversy still remained alive is irrelevant.” The majority view is based upon the distinction pointed out in the above passage and concluding that it is a final order within the meaning of Article 134(1)(c). While Bachawat, J.

said at p. 695: “It is merely a preliminary step in the prosecution and therefore an interlocutory order”. Even though there may be a scope for expressing different opinions apropos the nature of the order which was under consideration in Mohan Lal case in our judgment, undoubtedly, an order directing the filing of a complaint after enquiry made under a provision of the 1973 Code, similar to Section 476 of the 1898 Code will not be an interlocutory order within the meaning of Section 397(2). The order will be clearly revisable by the High Court. We must, however, hasten to add that the majority decision in Mohan Lal case treats such an order as an order finally concluding the enquiry started to find out whether a complaint should be lodged or not, taking the prosecution launched on the filing of the complaint as a separate proceeding. From that point of view the matter under discussion may not be said to be squarely covered by the decision of this Court in Mohan Lal case. Yet for the reasons already alluded to, we feel no difficulty in coming to the conclusion, after due consideration, that an order rejecting the plea of the accused on a point which, when accepted, will conclude the particular proceeding, will surely be not an interlocutory order within the meaning of Section 397(2).

16. We may also refer to the decision of this Court in Parmeshwari Devi v. State, (1977) 1 SCC169 that an order made in a criminal proceeding against a person Crl.M.C. No.2493/2017 Page 37 of 56 who is not a party to the enquiry or trial and which adversely affected him is not an interlocutory order within the meaning of Section 397(2). Referring to a passage from the decision of this Court in Mohan Lal case the passage which is to be found in Halsbury's Laws of England, Vol 22, it has been said by Shinghal, J.

delivering the judgment of the Court, at p. 164 (SCC p. 172, SCC (Cri) p. 77, para 8): „It may thus be conclusive with reference to the stage at which it is made, and it may also be conclusive as to a person, who is not a party to the enquiry or trial, against whom it is directed.‟ As already mentioned, the view expressed in Mohan Lal case may be open to debate or difference. One such example is to be found in the decision of this Court in Prakash Chand Agarwal v. Hindustan Steel Ltd., (1970) 2 SCC806wherein it was held that an order of the High Court setting aside an ex parte decree in the suit and restoring the suit to the file of the trial court is not a final order within the meaning of Article 133. It is to be noticed that if the High Court would have refused to set aside the ex parte decree, the proceeding for setting it aside would have finally ended and on some of the principles culled out by the majority in Mohan Lal case, such an order would have been a final order. We are, however, not under any necessity to enter into this controversial arena. In our opinion whether the type of the order aforesaid would be a final order or not, surely it will not be an interlocutory order within the meaning of sub-section (2) of Section 397 of the 1973 Code.” 16. Though there is a wealth of case law, on the issue of whether specific orders may be regarded as “interlocutory” or not, it is neither necessary, nor expedient, to burden this judgement therewith, as the written submissions filed by the petitioner disclose that they do not seriously dispute the proposition that the impugned order, of the Crl.M.C. No.2493/2017 Page 38 of 56 ACMM, is not an interlocutory order. M/s Vikram Bakshi and Khosla are, therefore, ad idem on the issue. This Court, therefore, proceeds on the premise that the order is not interlocutory, as contended by Mr Khosla.

17. Having so observed, however, it remains to be examined whether, by virtue of the impugned order being revisable, under Sections 399 and 401 of the Cr PC, the jurisdiction, to exercise powers under Section 482, stands denuded. The judgement in Prabhu Chawla (supra):

18. Ex facie, the question whether an order, which is revisable elsewhere under the Cr PC, is immune from interference under Section 482 thereof, would no longer appear to be res integra, in view of the pronouncement of a 3-judge bench of the Supreme Court in Prabhu Chawla (supra), rendered as recently as on 5th September 2016.

19. Prabhu Chawla (supra) was an appeal against a judgement of the High Court of Rajasthan, which held, following its own earlier decision, that, in view of the availability of the remedy of revision, under Section 397 of the Cr PC, against the order under challenge before it, Section 482 was not invocable. When the matter reached the Supreme Court in appeal, it appeared, to the Supreme Court, that there was an apparent conflict, on the issue, between the judgements in Dhariwal Tobacco Products Ltd (supra) and Mohit (supra), inasmuch as, while the former decision held that availability of the Crl.M.C. No.2493/2017 Page 39 of 56 remedy of revision under Section 397 (or

399) of the Cr PC would not foreclose Section 482, the latter appeared to hold to the contrary. This apparent conflict was, therefore, referred to a three-Judge Bench, which rendered its view, thereon, in Prabhu Chawla (supra), as reported in (2016) 16 SCC30 20. Shiva Kirti Singh, J., speaking for the Bench in Prabhu Chawla (supra), affirmed the legal position, leaving no scope for ambiguity or uncertainty, in paras 6 to 8 of the report, thus: “6. In our considered view any attempt to explain the law 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 the Court's extraordinary jurisdiction. The self-restraint, nothing more”. (Raj Kapoor v. State, (1980) 1 SCC43 excites is situation limitation 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 Crl.M.C. No.2493/2017 Page 40 of 56 only to petty interlocutory orders! A situation wholly unwarranted and undesirable. As a sequel, we are constrained to hold that the 7. Division Bench, particularly in Mohit v. State of U.P., (2013) 7 SCC789in respect of inherent power of the High Court in Section 482 CrPC does not state the law correctly. We record our respectful disagreement. in para 28, 8. In our considered opinion the learned Single Judge of the High Court should have followed the law laid down by this Court in Dhariwal Tobacco Products Ltd. v. State of Maharashtra, (2009) 2 SCC370and other earlier cases which were cited but wrongly ignored them in preference to a judgment of that Court in Sanjay Bhandari v. State of Rajasthan, (2009) 1 Cri LR282passed by another learned Single Judge on 5-2-2009 in SB Criminal Miscellaneous Petition No.289 of 2006 which is impugned in the connected criminal appeal arising out of Special Leave Petition No.4744 of 2009. As a result, both the appeals, one preferred by Prabhu Chawla and the other by Jagdish Upasane and others are allowed. The impugned common order dated 2-4-2009 [Ashish Bagga v. State, 2009 SCC OnLine Raj 1552]. passed by the High Court of Rajasthan is set aside and the matters are remitted back to the High Court for fresh hearing of the petitions under Section 482 CrPC in the light of law explained above and for disposal in accordance with law. Since the matters have remained pending for long, the High Court is requested to hear and decide the matters expeditiously, preferably within six months.” (Emphasis supplied) Is Prabhu Chawla (supra) per incuriam?. Crl.M.C. No.2493/2017 Page 41 of 56 21. Mr Khosla seeks to overcome Prabhu Chawla (supra) by an argument which, clearly, is more ingenious than ingenuous. It is sought to be contended that Prabhu Chawla (supra) is per incuriam and, consequently, unworthy of reliance.

22. How, and why, according to Mr Khosla, is Prabhu Chawla (supra) per incuriam?. The answer, as conceptualized, and articulated, by Mr Khosla, is involved and complex.

23. Prabhu Chawla (supra), Mr Khosla complains, overruled Mohit (supra). Empirically, Mr Khosla admits, no real exception can be taken thereto, as Prabhu Chawla (supra) was rendered by a bench of three learned Judges, while Mohit (supra) was the handiwork of two. The story, however, Mr Khosla would contend, does not end there. A reading of Mohit (supra) discloses that it relied on two earlier decisions, in Padam Sen (supra) and Manohar Lal Chopra (supra) respectively, authored by three and four learned Judges respectively (though the latter decision is, apparently inadvertently, referred to, in Prabhu Chawla (supra), as one rendered by a Constitution Bench). It is sought to be contended, by Mr Khosla, arguing in person, that, had Prabhu Chawla (supra) declared the reliance, in Mohit (supra), on the earlier decisions in Padam Sen (supra) and Manohar Lal Chopra (supra) to be misplaced, the situation might have been different. However, he contends, having not done so, Prabhu Chawla (supra) could not have subscribed to a view contrary to that taken in Padam Sen (supra) and Manohar Lal Chopra (supra), as the former decision was of a co-equal bench and Crl.M.C. No.2493/2017 Page 42 of 56 the latter of a bench consisting of a larger number of judges. Ergo, Mr Khosla would contend, Prabhu Chawla (supra) is rendered per incuriam.

24. Additionally, Mr Khosla contends, Prabhu Chawla (supra) also postulates the law differently from Amar Nath (supra) and Madhu Limaye (supra), and is per incuriam for this reason as well. The per incuriam principle 25. Per incuriam literally translates as “through lack of care”. There is wealth of judicial authority delineating the contours of the expression, and they all speak in one voice. We need, therefore, only refer to the hallowed 7-judge bench decision in A. R. Antulay v R. S. Nayak, (1988) 2 SCC602 which explained the expression “per incuriam” as meaning “decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.” It is not enough, therefore, to show that a judgement, which is cited, has been rendered in ignorance of a statutory provision, or binding judicial precedent, to make out a case for ignoring such cited judgement as per incuriam; it has also to be shown that, on account of such ignorance, the decision, or reasoning therefor, as contained in such cited judgement, is, for that reason, “demonstrably wrong”. Almost identical is the definition, of the term “per incuriam”, as contained in State of Madhya Pradesh v Narmada Bachao Andolan, (2011) 7 SCC639 Crl.M.C. No.2493/2017 Page 43 of 56 26. Forgetfulness, inadvertence, or ignorance, are generally regarded as the sine qua non for the per incuriam principle to apply. Even so, there are some decisions which apply the principle even in cases of mere omission, such as Siddharam Satlingappa Mhetre v State of Maharashtra, (2011) 1 SCC694 27. Adverting, first, to Manohar Lal Chopra (supra), the paragraph, from the said decision, extracted in Mohit (supra), reads thus: “43. … The inherent jurisdiction of the court to make orders ex debito justitiae is undoubtedly affirmed by Section 151 of the Code, but [inherent]. jurisdiction cannot be exercised so as to nullify the provisions of the Code of Civil Procedure. Where the Code of Civil Procedure deals expressly with a particular matter, the provision should normally be regarded as exhaustive.” 28. It has been rightly pointed out by Ms Rebeca John, learned Senior Counsel appearing for the petitioner, that the above passage figures, not in the majority judgement in Manohar Lal Chopra (supra) (authored by Raghubar Dayal, J.), but in the minority judgement authored by J.C.Shah, J.

(as His Lordship then was). The issue before the Supreme Court, in that case, was whether the High Court, exercising jurisdiction under Section 151 of the CPC, was empowered to grant interim injunction in circumstances outside those contemplated by Order 39 Rules 1 and 2 thereof. The submission, by the appellant before the Supreme Court, was that, in the face of a specific provision dealing with grant of interim injunction, viz. Order Crl.M.C. No.2493/2017 Page 44 of 56 39, it was not open to the High Court to grant interim injunction in a situation which was not covered by Order 39, by invoking its inherent jurisdiction under Section 151 of the CPC. There is no gainsaying the statutory reality that Section 151 of the CPC and Section 482 of the Cr PC are not only in pari materia, but in haec verba as well. To that extent, it may not be possible to find fault with Mr Khosla, for having relied on a judgement rendered in the context of the CPC, rather than the Cr PC. On the issue before it, however, the majority judgement, in Manohar Lal Chopra (supra) held as under: “17. On the first question it is argued for the appellant that the provisions of clause (c) of Section 94 CPC, make it clear that interim injunctions can be issued only if a provision for their issue is made under the rules, as they provide that a Court may, if it is so prescribed, grant temporary injunctions in order to prevent the ends of justice from being defeated, that the word “prescribed”, according to Section 2, means “prescribed by rules” and that Rules 1 and 2 of Order 39 lay down certain circumstances in which a temporary injunction may be issued.

18. There is difference of opinion between the High Courts on this point. One view is that a Court cannot issue an order of the circumstances do not fall within the provisions of Order 39 of the Code: Varadacharlu v. Narsimha Charlu [AIR1926Mad 258]. ; Govindarajulu v. Imperial Bank of India [AIR Mad 180]. Karuppayya v. Ponnuswami [AIR1933Mad 500 (2)]. ; Murugesa Mudali v. Angamuthu Mudali [AIR1938Mad 190]. and Subramanianv. Seetarama [AIR1949Mad 104]. . The other view is that a Court can issue an interim injunction under circumstances which are not covered by Order 39 of the Code, if the Court is of temporary 1932 injunction if Crl.M.C. No.2493/2017 Page 45 of 56 and Chinese Tannery interim incapable of contemplating all opinion that the interests of justice require the issue of such injunction: Dhaneshwar Nath v. Ghanshyam Dhar [AIR1940All 185]. ; Firm Bichchha Ram v. Firm Baldeo Sahai [AIR1940All 241]. ; Bhagat Singh v. Jagbir Sawhney [AIR1941Cal 670]. Owners' Association v. Makhan Lal [AIR1952Cal 560]. . We are of opinion that the latter view is correct and that the Courts have inherent jurisdiction to issue temporary injunctions in circumstances which are not covered by the provisions of Order 39 CPC. There is no such expression in Section 94 which expressly prohibits the issue of a temporary injunction in circumstances not covered by Order 39 or by any rules made under the Code. It is well settled that the provisions of the Code are not exhaustive, for the simple reason that the legislature is the possible circumstances which may arise in future litigation and consequently for providing the procedure for them. The effect of the expression “if it is so prescribed” is only this that when the rules prescribe the circumstances in which the temporary injunction can be issued, ordinarily the Court is not to use its inherent powers to make the necessary orders in the interests of justice, but is merely to see whether the circumstances of the case bring it within the prescribed rule. If the provisions of Section 94 were not there in the Code, the Court could still issue temporary injunctions, but it could do that in the exercise of its inherent jurisdiction. No party has a right to insist on the Court's exercising that jurisdiction and the Court exercises its inherent jurisdiction only when it considers it absolutely necessary for the ends of justice to do so. It is in the incidence of the exercise of the power of the Court to issue temporary injunction that the provisions of Section 94 of the Code have their effect and not in taking away the right of the Court to exercise its inherent power. Crl.M.C. No.2493/2017 Page 46 of 56 19. There is nothing in Order 39 Rules 1 and 2 which provide specifically that a temporary injunction is not to be issued in cases which are not mentioned in those rules. The rules only provide that in circumstances mentioned in them the Court may grant a temporary injunction.

20. Further, the provisions of Section 151 of the Code make it clear that the inherent powers are not controlled by the provisions of the Code. Section 151 reads: „Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.‟ 21. A similar question about the powers of the Court to issue a commission in the exercise of its powers under Section 151 of the Code in circumstances not covered by Section 75 and Order 26, arose in Padam Sen v. State of Uttar Pradesh[(1961) 1 SCR884 and this Court held that the Court can issue a commission in such circumstances. It observed at p. 887 thus: „The inherent powers of the Court are in addition to the powers specifically conferred on the Court by the Code. They are complementary to those powers and therefore it must be held that the Court is free to exercise them for the purposes mentioned in Section 151 of the Code when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intentions of the legislature.‟ These observations clearly mean that the inherent powers are not in any way controlled by the provisions of the Code as has been specifically stated in Section 151 itself. But those powers are not to be exercised when their exercise may be in conflict with what had been expressly Crl.M.C. No.2493/2017 Page 47 of 56 legislature for orders the provided in the Code or against the intentions of the legislature. This restriction, for practical purposes, on the exercise of those powers is not because those powers are controlled by the provisions of the Code but because it should be presumed that the procedure specifically provided by in certain circumstances is dictated by the interests of justice.

22. In the above case, this Court did not uphold the order of the civil court, not coming under the provisions of Order 26, appointing a commissioner for seizing the account books of the plaintiff on the application of the defendants. The order was held to be defective not because to appoint a commissioner in circumstances not covered by Section 75 and Order 26, but because the power was exercised not with respect to matters of procedure but with respect to a matter affecting the substantive rights of the plaintiff. This is clear from the further observations made at p.

887. This Court said: the Court had no power „The question for determination is whether the impugned order of the Additional Munsif appointing Sri Raghubir Pershad Commissioner for seizing the plaintiff's books of account can be said to be an order which is passed by the Court in the exercise of its inherent powers. The inherent powers saved by Section 151 of the Code are with respect to the procedure to be followed by the Court in deciding the cause before it. These powers are not powers over the substantive rights which any litigant possesses. Specific powers have to be conferred on the Courts for passing such orders which would affect such rights of a party. Such powers cannot come within the scope of inherent powers of the Court in matters of procedure, which powers have their source in the Court possessing all the essential powers to regulate its practice and procedure.” Crl.M.C. No.2493/2017 Page 48 of 56 23. The case reported as Maqbul Ahmad v. Pratap Narain Singh [LR62IA80 does not lay down that the inherent powers of the Court are controlled by the provisions of the Code. It simply holds that the statutory discretion possessed by a Court in some limited respects under an Act does not imply that the Court possesses a general discretion to dispense with the provisions of that Act. In that case, an application for the preparation of a final decree was presented by the decree-holder beyond the period of limitation prescribed for the presentation of such an application. It was however contended that the Court possessed some sort of judicial discretion which would enable it to relieve the decree-holder from the operation of the Limitation Act in a case of hardship. To rebut this contention, it was said at p. 87: „It is enough to say that there is no authority to support the proposition contended for. In Their Lordships' opinion it is impossible to hold that, in a matter which is governed by Act, an Act which in some limited respects gives the Court a statutory discretion, there can be implied in the Court, outside the limits of the Act, a general discretion to dispense with its provisions. It is to be noted that this view is supported by the fact that Section 3 of the Act is peremptory and that the duty of the Court is to notice the Act and give effect to it, even though it is not referred to in the pleadings.” These observations have no bearing on the question of the Court's exercising its inherent powers under Section 151 of the Code. The section itself says that nothing in the Code shall be deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice. In the face of such a clear statement, it is not possible to hold that the provisions of the Code control the inherent power by limiting it or otherwise affecting it. The inherent power has not been conferred upon the Court; it is a power inherent in the Crl.M.C. No.2493/2017 Page 49 of 56 Court by virtue of its duty to do justice between the parties before it.

24. Further, when the Code itself recognises the existence of the inherent power of the Court, there is no question of implying any powers outside the limits of the Code.

25. We therefore repel the first contention raised for the appellant.” (Emphasis supplied) 29. Plainly, in the above extracted passages, the majority judgement in Manohar Lal Chopra (supra) has, in clear and unmistakable terms, rejected the contention, advanced by the appellant before the Court, that Section 151 of the CPC could not be invoked to grant injunction in circumstances not contemplated by Order 39 Rules 1 and 2 thereof. The judgement rules that, so long as the exercise of such jurisdiction does not infract any other provision of the CPC, the non obstante clause with which Section 151 begins, has to be given full effect, and cannot be sought to be reined in, by reference to Order 39 Rules 1 and 2. Pertinently, it is noticed that Order 39 Rules 1 and 2 merely confer power to grant injunction, and do not stipulate that injunction could not be granted in any other circumstance; they certainly do not limit the expansive ambit of Section 151. This reasoning would equally apply, mutatis mutandis, to Section 482, vis-à-vis Sections 397 to 401, of the Cr PC.

30. The minority order of J.C. Shah, J.

(as His Lordship then was), in Manohar Lal Chopra (supra), commences with this preface: Crl.M.C. No.2493/2017 Page 50 of 56 “I have perused the judgment delivered by Mr Justice Dayal. I agree with the conclusion that the appeal must succeed, but I am unable to hold that civil courts generally have inherent jurisdiction in cases not covered by Rules 1 and 2 of Order 39 of the Civil Procedure Code to issue temporary injunctions restraining parties to the proceedings before them from doing certain acts.” (Emphasis supplied) 31. Quite obviously, the minority judgement of Shah, J.

is in disharmony with the majority judgement authored by Raghubar Dayal, J., regarding the power of the court to grant injunction, in exercise of its inherent power, in circumstances outside those contemplated by Order 39 of the CPC. Such a minority judgement cannot be cited as a precedent. If at all authority were required for such a truism, it is to be found in para 5 of the report in Common Cause v U.O.I., (2004) 5 SCC222 which reads as under: to the Union of India “5. Another submission made by the learned counsel for the applicant is that this Court can issue a writ of mandamus directing issue notification for enforcement of an enactment already passed by Parliament. For this purpose, reliance is placed on the dissenting opinion contained in paragraphs 111 and 112 of a Constitution Bench decision of this Court in A.K. Roy v. Union of India, (1982) 1 SCC271 The view taken by the minority cannot be cited as the law laid down by the Constitution Bench nor can it be followed in the face of the opinion of the majority to the contrary.” (Emphasis supplied) Crl.M.C. No.2493/2017 Page 51 of 56 32. The attempt, of Mr Khosla, to use Manohar Lal Khanna (supra) as a crutch to prop his premise that Prabhu Chawla (supra), has, therefore, necessarily to fail.

33. Padam Sen (supra), too, is of no avail to Mr Khosla in this regard, as Padam Sen (supra) stands noticed, explained and distinguished in the above extracted passages from the majority judgement in Manohar Lal Chopra (supra).

34. Mr Khosla also sought to rely on the decisions in Amar Nath (supra) and Madhu Limaye (supra) to support his stance that Prabhu Chawla (supra) is per incuriam. It is difficult to understand how sustenance is sought to be drawn, by Mr Khosla, from these two authorities. Both the decisions specifically dealt with the jurisdiction, of the High Court under Section 482 of the Cr PC, in the case of interlocutory orders. The reliance, by Mr Khosla, thereon, flies directly in the face of his very first premise, being that the impugned order, dated 22nd June 2017, of the ACMM, was final, and not interlocutory, in nature. Neither Amar Nath (supra), nor Madhu Limaye (supra), holds that, in respect of orders which are not “interlocutory” in nature, the High Court is powerless to exercise jurisdiction under Section 482 of the Cr PC. Mr Khosla’s reliance thereon has, therefore, to be characterized as thoroughly misplaced. It is useful, in this regard, to remember the following hallowed and well- recognized principle of law: “The ratio of a decision, as is well known, must be culled out from the facts involved in a given case. A decision, as Crl.M.C. No.2493/2017 Page 52 of 56 is well known, is an authority for what it decides and not what can logically be deduced therefrom.” (per S.B.Sinha, J., in Commissioner of Customs v Toyota Kirloskar Motor (P) Ltd, (2007) 5 SCC371 A reading of Amar Nath (supra) and Madhu Limaye (supra) reveals that the proposition, that Section 482 of the Cr PC cannot apply in the cases of final orders, cannot even be “logically deduced therefrom”.

35. The submission, of Mr Khosla, that Prabhu Chawla (supra) is per incuriam, is, therefore, rejected.

36. The contention of Mr Khosla, if accepted, would, moreover, reduce, to a redundancy, the non obstante clause with which Section 482 of the Cr PC commences. On the scope and ambit of such a non obstante clause, one may refer, with advantage, to the decision in Chandravarkar Sita Ratna Rao v Ashalata S. Guram, (1986) 4 SCC447 37. The Supreme Court, in Chandravarkar Sita Ratna Rao (supra), was concerned with the interpretation of Section 15-A(1) of the Bombay Rents, Hotel and Lodging Rates Control Act, 1947, which read thus: anything (1) Notwithstanding “15-A. contained elsewhere in this Act or anything contrary in any other law for the time being in force, or in any contract, where any person is on the 1st day of February, 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee, he shall on that date be deemed to have become, for the purposes of this Act, Crl.M.C. No.2493/2017 Page 53 of 56 the tenant of the landlord, in respect of the premises or part thereof, in his occupation.” The submission, advanced, before the Supreme Court, regarding the non obstante clause in Section 15-A(1) of the Bombay Rents, Hotel and Lodging Rates Control Act, 1947, and the reaction of the Court thereto, are to be found in paras 66 and 67 of the report, which may be reproduced thus: “66. It was canvassed before us that the non obstante clause was connected with the verb i.e. that a licensee in Section 15-A of the Act on the date be deemed to become tenant but it does not detract from the power of the tenant not to create licence. The construction placed by the Full Bench, in our opinion, would curtail the language of the section and on the basis of the High Court's judgment, the amendment ceases to be meaningful for a large section intended to be protected and unless one is constrained by compulsion to give a restricted meaning, one should not do it in this case. We find no such compulsion.

67. A expression “notwithstanding anything contained in this Act or in some particular provision in the Act or in some particular Act or in any law for the time being in force, or in any contract” is more often than not appended to a section in the beginning with a view to give the enacting part of the section in case of conflict an overriding effect over the provision of the Act or the contract mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision of the Act or any other Act mentioned in the non obstante clause or any contract or document mentioned the enactment following it will have its full operation or that the provisions embraced in the non obstante clause would not be an impediment for an operation of the enactment.” clause beginning with the Crl.M.C. No.2493/2017 Page 54 of 56 (Emphasis supplied) 38. The path of this Court, in dealing with the issue, is further illuminated by the following words of K. Subba Rao. J.

(as he then was), in South India Corpn (P) Ltd v Secretary, Board of Revenue, AIR1964SC207 in the Constitution” “19. That apart, even if Article 372 continues the pre- Constitution laws of taxation, that provision is expressly made subject to the other provisions of the Constitution. The expression “subject to” conveys the idea of a provision yielding place to another provision or other provisions to which it is made subject. Further Article 278 opens out with a non obstante clause. The phrase “notwithstanding anything is equivalent to saying that spite of the other articles of the Constitution, or that the other articles shall not be an impediment to the operation of Article 278. While Article 372 is subject to Article 278, Article 278 operates in its own sphere in spite of Article 372. The result is that Article 278 overrides Article 372; that is to say, notwithstanding the fact that a pre-Constitution taxation law continues in force under Article 372, the Union and the State Governments can enter into an agreement in terms of Article 278 in respect of Part B States depriving the State law of its efficacy. In one view Article 277 excludes the operation of Article 372, and in the other view, an agreement in terms of Article 278 overrides Article 372. In either view, the result is the same, namely, that at any rate during the period covered by the agreement the States ceased to have any power to impose the tax in respect of “works contracts”. Though, in this case, the prefatory “subject to” clause in Article 372 of the Constitution also had its role to play, it appears obvious that the (Emphasis supplied) Crl.M.C. No.2493/2017 Page 55 of 56 non obstante clause in Article 278 would, even by itself, have led to the same result.

39. The concern, expressed in Prabhu Chawla (supra), that, if orders otherwise revisable under the Cr PC, are, pro tanto and by reason thereof, completely removed from the sphere of Section 482 thereof, Section 482 would be rendered invokable only in the case of “petty interlocutory orders” is, unquestionably justified, and this Court respectfully remains guided thereby.

40. In the conspectus of the above discussion, and in the realm of the law laid down, as late as in September 2016, in Prabhu Chawla (supra), no occasion, to deal with the judgement of the Full Bench of this Court in Gopal Dass (supra), or with the ancillary arguments regarding the power of this Bench to differ therewith, arises for consideration. Prabhu Chawla (supra) is the most recent, and most authoritative, pronouncement on the issue under consideration, and must, in view of the mandate of Article 141 of the Constitution of India, guide the path of this court.

41. The preliminary objection of Mr Khosla, to the effect that the present petition is not maintainable under Section 482 of the Cr PC is, therefore, rejected. SEPTEMBER07 2017/neelam C. HARI SHANKAR, J.

Crl.M.C. No.2493/2017 Page 56 of 56

Court	Delhi High Court
Decided On	Sep-07-2017
Appellant	Vikram Bakshi
Respondent	State & Anr

Vikram Bakshi vs.state & Anr - Court Judgment