Dipak Misra, J.
1. The question of maintainability of an application under Section 482 of the Code of Criminal Procedure, 1973 (in short, 'the Code'), after disposal of the revision at the level of the Sessions Judge has arisen again like a mythical phoenix and that being the preliminary objection by Shri Debasis Panda, learned counsel for opp. party No. 1 it has to be dealt with before the petitioner is allowed to cross the threshold to advance his contentions in regard to the merits of the case.
2. The preliminary objection of Shri Panda is that, challenging the order dated 26-7-1994 passed by the learned Judicial Magistrate First Class, Bhadrak, in, ICC Case No. 60 of 1993 whereby he refused to. entertain the application filed under Section 219 of the Code the accused persons had preferred Criminal Revision No. 40 of 1994 before the Additional Sessions Judge, Bhadrak, and having lost in the said revision, they are debarred to invoke the inherent Jurisdiction of this Court as the application at their instance is not maintainable. In support of his submission, he has placed reliance on the decisions of the apex Court in Dharampal and Ors. v. Smt. Ramshri and Ors. : AIR 1993 SC 1361, and Deepti alias Arati Rai v. Akhil Rai and Ors.: (1995) 5 SCC 751.
3.: Before I proceed to deal with the contention raised by Shri Panda and the answer thereto by the learned counsel for the petitioner Shri D. P. Dhal, it is relevant to state here that two application were taken up together with regard to maintainability and I have heard the learned counsel for the parties at length, in Criminal Misc. Case No. 1396 of 1994(Panchanan Mohanty v. State of Orissa and Anr. disposed of by me today, Shri Samir Kumar Misra, the learned counsel for the petitioner therein has advanced his arguments in regard, to the maintainability of such an application.
4. Shri Panda has laid immense emphasis on the ratio of Dharampal case (AIR 1993 SC 1361). In paragraph-4 of the judgment In the said case, the apex Court held as follows :
'......The question that falls for our consideration now is whether the High Court could have utilised the powers under Section 482 of, the Code and entertained a second revision- application at the instance of the 1st respondent: Admittedly the 1st respondent had preferred a Criminal Application being Cr. R. No. 180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment. The Sessions Judge had dismissed the said application on 14th May, 1979. Section 397(3) bars a second revision application by the same party. It is now well-settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising- powers, which are expressly barred by the Code. Hence the High Court. had clearly erred in entertaining the second revision at the instance of 1st respondent. On this short, ground itself, the impugned order of the High Court can be set aside.'
After this judgment of the apex Court, this Court had the occasion to deal, with the preliminary objection raised by patties challenging entertainability of an application preferred under Section 482 of the Code. The problem arose in the case of Iswar Chandra Naik v. Smt AIlahadini Sahu (Naik ) and Anr.: (1995) 9 OCR 79. This Court in paragraph-4 of the judgment stated thus:
'4. In vie of the rival contentions at the Bar, the first question that arises for consideration is whether a statutory bar under Section 397(2) of the Code for entertaining a second revision at the instance of the petitioner would operate as a bar for exercise of inherent power of this Court under Section 482 Mr. Pujari in this connection relies upon the decision of of the Supreme Court in the case of Dharampal and Ors. v. Smt. Ramshri and Ors. : (1993) 6 OCR 109 : AIR 1993 SC 1361, whch supports Mr. Pujari's connection fully. In the aforesaid case, their Lordships of the Supreme Court held
'......It is now well-settled that the inherent powers under Section 432 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the instance of 1st respondent. ......' In that case also, the order of the Magistrate as well as the order of the Sessions Judge in revision was found to be patently erroneous and the High Court had interfered with that order in exercise of power under Section 482, but the Supreme Court came to the conclusion that the High Court should not have interfered with the order in exercise of power under Section 482 of the Cods of Criminal Procedure.
Mr. Nanda, the learned counsel appearing for the petitioner, however contends that the aforesaid decision has not taken note of the earlier decision of the Supreme Court in the case of Madhu Limaye v. State of Maharashtra: AIR 1978 SC 47, which had categorically stated that the bar under Section 397(2) cannot limit or affect the exercise of inherent powers under Section 482 of the Code. Obviously that observation had been made in relation to the question whether in respect of arc interlocutory order, the High Court would be justified in exercising its inherent power, when it is not entitled to entertain a revision and the decision is not directly in relation to the bar under Section 397(2). But even if the ratio of that decision applies in respect of entertaining a second revision against the revisional order, but still in view of the parameters fixed by the apex Court with regard to the circumstances where the inherent powers could be exercised, the present case would not be one for exercise of the said power..........'
I have quoted in extenso from the aforesaid decision because both parties interpret the aforesaid decision differently. Shri Panda interprets that this Court has already held that an application under Section 482 is hot maintainable, inasmuch as it has observed that the ratio of Dharampal case (supra) supported the contention of the counsel for the opposite party therein. The purpose of the submission of Sri Panda is that the aforesaid decision is binding on the Single Judge. Shri Dhal and Shri Misra appearing for the opposite parties in their respective cases have, on the other hand, contended that the ratio of that judgment is exactly not so, and it has not been specifically decided that an application under Section 482 is barred.
5. This Court in the case of Giridhari Das and Ors. v. Basubev Das (1995) 8 OCR 367, following the ratio of Dharampal's case (supra) has held that as application under Section 482 is not maintainable after disposal of a revision by the Court of Session.
6. As the law does not remain in gtagnation and is inherently imbibed with the lively spirit of life, the progressive spirit of law brings in new expositions having roots in the past. The apex Court in the case of Ganesh Narayan Hegde v. S. Bangarappa and Ors.: (1995) 4 SCC 41, while dealing with the provisions of Sections 482, 397 and 399 of the Code of Criminal Procedure held as follows :
' -- While it is true that availing of the remedy of the revision to the Sessions Judge under Section 399 does not bar a person from invoking the power of the High Court under Section 482, it is equally true that the High Court should not act as a Second Revisional Court under the garb of exercising inherent powers. While exercising its inherent powers in such a matter it must be conscious of the fact that the learned Sessions Judge has declined to exercise his revisory power in the matter. The High Court should interfere only where it is satisfied that if the complaint is allowed to be proceeded with, it would amount to abuse of process of Court or that the interests of justice otherwise call for quashing of the charges. ......'
It is worthwhile to note here that in the aforesaid decision, the apex Court has referred to Sections 399 and 482 and has observed as aforesaid.
7. Again, in the case of Deepti alias Arati Rai (supra), the apex Court while dealing with the jurisdiction under Section 482 of the Code in relation to quashing of a charge held as follows :
'...The High Court also should have taken care to verify the record before accepting the concession made by the learned Government Advocate. It should have also applied its mind to the aspect that second revision application, after dismissal of the first one by Sessions Court is not maintainable and that inherent power under Section 482 of the Code cannot be utilised for exercising powers which are expressly barred by the Code. .....'
8. Shri Panda, has canvassed two-fold contentions. His attack is that the latest pronouncement of the apex Court is that an application under Section 482 is not maintainable after dismissal of a revision by the Sessions Judge and this Court's view being that as expressed by the learned Single Judges, the same has to be accepted.
9. In Dharampal's case, the apex Court has held that inherent powers under Section 482 of the; Code cannot be utilised for exercising powers which are expressly barred by the Code and, therefore, entertaining a, second revision was erroneous. In the case of Ganesh Narayan Hegde (supra) it has been held that there is no bar for invoking the power under Section 482, but the High Court should not act as a second revisional Court.
In the case of Deepti alias Arati Rai (supra), it has been held that inherent power under Section 482 cannot be utilised for exercising powers which are expressly barred by the Code. Before I proceed to analyse the inherent and intrinsic quintessence of the aforesaid decisions, I may refer to the decision in the' case of V.C. Sukla v. State through CBI : AIR 1980 SC 962. wherein dealing with the concept of an interlocutory order and power under Section 482, the apex Court observed as follows :
'6. One of the questions that arose was as to whether an interlocutory order which could be revised by the Sessions Judge, can be further revised under Section 482 of the Code by the High Court because Section 397(3) permitted the power of revision to be exercised only by the High Court or the Sessions Judge but not by both of them. The limitation contained in Section 397(3) runs as follows :
'(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. Sub-section (3), however, does not limit at all the inherent power of the High Court contained in Section 482, as mentioned above. It merely curbs the revisional power given to the High Court or the Sessions Judge under Section 397(1) of the Code. We need not dilate on this aspect because we are not called upon to consider the interpretation of Section 397(3) of the Code, although in one of the cases cited before us this aspect has been gone into and that is why we have indicated the same.......'
The aforesaid view has been expressed by Fazal Ali, J. for himself and A. P. Sen. J. In the concurring judgment, Dasai, J. referred to the case of Madhu Limaye v. The State of Maharashtra : (1978) 1 SCR 749 in regard to the concept of an interlocutory order.
In the minority view expressed by P.N. Singhal, J. there is discussion with regard to interlocutory order, but not with regard to the concept of jurisdiction under Section 482 of the Code. The ratio of the aforesaid decision is similar to the ratio of the case of Ganesh Narayan Hegde (supra) that there is no bar to invoke the inherent power under Section 482 of the Code. What I notice, the apex Court has made a subtle distinction between revisional and inherent jurisdiction. In the case of Ganesh Narayan Hegde the apex Court has used the words, the High Court while exercising its power under Section 432 of the Code, the inherent power, should not act as a second revisional Court under the garb of exercising this power.
Analysing the history, development and the delineation of the inherent power of the High Court the apex Court on a number of occasions has dealt with this concept and has made a distinction between exercise of revisional jurisdiction and the inherent power. In the case of Madhu Limaye (supra), Untewalia, J. speaking for the Bench held thus:
'In our opinion, a happy solution of this problem would be to see that the , bar provided under Sub-section (2) of Section 397 operates only in exercise of revisional power of the High Court, meaning thereby that the High Court will have no power of revision in relation to interlocutory order. Then in accordance with one or the other principle 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 Ccd the High Court will exercise its inherent jurisdiction power. But in case the impugned order clearly brings about a circumstance which is an abuse of the process of the Code or for the purpose of securing the ends of justice, interference by the High Court is absolutely necessary, then nothing contained in Section 397(2) can limit or affect the exercise of the inherent power of the High Court. But such cases would be few and far between. The High Court must exercise the inherent power sparingly.
The subtle distinction between the revisional jurisdiction and the inherent power was also highlighted in the case of Municipal Corporation of Delhi v. Ram Kishan Rohtagi, reported in AIR 1983 SC 67, wherein their Lordships observed thus:
'xx xx xx It is true that Section 397(2) clearly bars the jurisdiction of the Court in respect of interlocutory orders passed in appeal, enquiry or other proceedings. The matter is, however, no longer res integra as the entire controversy has been set at rest by a decision of this Court in Madhu Limaye v. State of Maharashtra (1978) 1 SCR 749 : (AIR 1978 SC 47) where this Court pointed out that Section 482 of the present Code had a different parameter and was a provision independent of Section 397(2). This Court further held that while Section 397(2) applied to the exercise of revisional powers of the High Court, Section 482 regulated the inherent powers of the Court to pass orders necessary in order to prevent the abuse of the process of the Court'
In the said judgment their Lordships further expressed as under:
'......This provision confers a separate and independent power on the High Court alone to pass orders ex debito justitiae in cases where grave and substantial injustice has been done or where the process of the Court has been seriously abused. It is not merely a revisional power meant to be exercised against the orders passed by subordinate Courts. It was under this section that in the old Code, the High Courts used to quash the proceedings or expunge uncalled for remarks against witnesses or other persons or subordinate Courts. Thus, the scope, ambit and range of Section 561-A (which is now Section 482) is quite different from the powers conferred by the present Code under the provisions of Section 397. It may be that in some cases there may be overlapping but such cases would be few and far between. It is well-settled that the inherent powers under Section 482 of the present Code can be exercised only when no other remedy is available to the litigant and not where a specific remedy is provided by the statute, further, the power being an extraordinary one, it has to be exercised sparingly. If these considerations are kept in mind, there will be no inconsistency between Sections 482 and 397(2) of the present Code.'
The aforesaid views were reiterated in the case of Raj Kapur v. State of Delhi Administration, reported in 1980 SC 258. The language of Section 482 uses the word inherent power of the High Court with certain specific purposes, namely, to give effect to any order under this Code or to prevent abuse of the process of the Court or otherwise to secure the ends of justice. Extraordinary circumstances may call for exercise of inherent jurisdiction.
10. In this context, I may refer to the decision in the case of Lalit Mohan Mandal and Ors. v. Benoyendra Nath Chatterjee, reported in AIR 1982 SC 785, wherein it has been held as follows:
'Although against an order passed in appeal under Section 341 of the Criminal P.C., the order would not be revisable by the High Court under Section 397(2), but High Court is entitled to examine the matter under Section 482 which expressly overrules the bar contained in Section 341 of the Code.......'
(Quoted from the placitum)
11. Taking into consideration the distinction between the revisional jurisdiction and inherent powers of the High Court, a Division Bench of Bombay High Court in the Case of Shyamrani and Ors. v. State of Maharashtra and Ors., reported in 1991 (sic) Crimes 496, held as follows :
'9. This takes up to the consideration of the ambit of bar created under Section 397(3). The bar is limited and operates only against the unsuccessful applicant from moving the other concurrent Court over again in the same subject matter. Bar does not operate against others. Bar also does not operate against suo motu exercise. It is pertinent to notice that no finality as such is attached to the revisional order in the Code. There is also no warrant for a conclusion that either Section 397(3) or any other provision in the Code engrafts an express bar in the matter against the High Court exercising inherent powers to give effect to any order under the Code or to prevent abuse of process of Court or to secure ends of justice. Any one can move the High Court for exercise of inherent jurisdiction suo motu and High Court can, if satisfied, choose to exercise the said jurisdiction in appropriate cases- Crux of the matter is, must High Court refuse to exercise the said jurisdiction merely because an unsuccessful revisional applicant (who has no right of second revision) has brought the matter to its notice. In our view, no law, no equity, no principle can permit such a course of action. There is a fine but well defined distinction between revisional and inherent jurisdiction though at times they may overlap.'
Thus, it becomes crystal clear that there is a fine but real distinction between the revisional jurisdiction and inherent power. In fact, the apex Court in the case of Ganesh Narayan Hegde (supra) has carved out a synthesis by taking note of Section 399 of the Code and the concept of inherent powers. It may be stated here that the power under Section 482 was directly in issue in the case of Ganesh Narayan Hegde. Taking into consideration the distinctive view of operation of the powers and the ratio of the decisions it can be safely concluded that an application under Section 482 of the Code is maintainable though a person has availed the remedy of revision under Section 399 of the Code. But the parameters of Section 432 have always to be kept in view.
12. Now to the facts of the present case : On the basis of an FIR, being lodged, the petitioner and seven others were charge-sheeted for offences punishable under Sections 341/324/34, IPC in G.R. Case No. 59/92 before the learned SDJM, Bhadrak. The opp. party No. 1, for the self-same occurrence filed a complaint petition forming the subject matter of ICC Case (Mo. 60/93 in the Court of learned SDJM, Bhadrak, who after due enquiry took cognizance of the offence under Section 326, IPC. against the petitioner but dismissed the complaint case in respect of other seven accused persons. The petitioner filed an application for trial of both the cases together but the same was rejected on the ground that no document - had been filed by the petitioner in connection with the G. R. case to satisfy the Court that the petitioner was an accused in G. R. case and both the cases had arisen out of the same occurrence. The said order of rejection was challenged in Criminal Revision No. 40/94 before the learned Additional Sessions Judge, Bhadrak who called for the records from the Court below and observed, though the time, date and place of occurrence in both the cases were same, yet, as the charge had already been framed, the scope of Section 219 was over and the petitioner, having not filed an application earlier, had to face the consequences of his negligence.
13. Shri D.P. Dhal, the learned counsel for the petitioner has submitted that Section 219 of the Code is not applicable but in fact. Section 210 is attracted. On perusal of the order passed by the learned SDJM. I find that he has not dealt with the matter solely on the ground that no document was filed by the accused in connection with G. R. case No. 59/92. The revisional Court has proceeded on the basis that the application was filed under Section 219 of the Code. At this juncture, Shri Dhal fairly admits that- the application under Section 219 was misconceived. Needless to say, nomenclature given to a petition does not determine its fate in its entirety. The Court is required to see the real essence of the prayer. As I find both the Courts below have proceeded to deal with the petition as one under Section 219 of the Code. Shri Dhal has submitted in the facts of present case Section 210 of the Code is attracted inasmuch as cognizance has been taken by the Magistrate on the basis of a complaint case and the police has filed the charge-sheet in respect of Offence arising out of same occurrence. He has highlighted that as the petitioner is a common accused in both the cases relating to the same occurrence, the Courts below should have been taken recourse to Section 210 of the Code. Keeping in view the aforesaid submissions and on perusal of the orders of the Courts below. I find that the entire approach of the Courts below is erroneous. True it is, the petition was filed under Section 219 of the Code but the essence of the prayer and the concept of real relief sought for should have been scrutinised in proper perspective. The approach being fundamentally defective, there has been miscarriage of justice. Accordingly, I set aside the impugned orders and direct the learned SDJM to consider the application keeping in view the provisions envisaged under Section 210(2) of the Code. To cut short delay, I direct the parties to appear before him on 7-11-1996 on which date the learned SDJM shall fix a date for hearing. He should dispose of the matter by end of November, 1996.
14. It is worthwhile to mention here that this Court by order dated 21-7-1995, had directed stay of execution of the Non-Bailable Warrant issued against the petitioner as he was absent on 5-9-1994, As this Court had already granted stay at the time of admission, I permit the petitioners to surrender on 7th of November, 1996 and go on fresh bail.
15. Resultantly, the Criminal Miscellaneous Application is allowed. Lower Court records be sent back forthwith.