MOSTT. SIMRIKHIA versus SMT. DOLLEY MUKHERJEE @ SMT. CHHABI MUKHERJEE & ANR.

Citation: [1990] 1 S.C.R. 788 · Decided: 02-03-1990 · Supreme Court of India · Bench: A.M. AHMADI · Disposal: Appeal(s) allowed

Cited by 8 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

A 
B 
MOSTI. SIMRIKHIA 
v. 
SMT. DOLLEY MUKHERJEE@ SMT. CHHABI 
MUKHERJEE & ANR. 
MARCH 2, 1990 
[A.M. AHMADI AND M. FATHIMA BEEVJ, JJ.) 
Code of Criminal Procedure, 1973: Sections 362 and 482-
lnherent power of High Court-To be invoked only to prevent abuse of 
process of Court and to secure ends of justice-Not to override express 
C provisions barring review. 
A case was instituted on a private complaint by the appellant for 
offences under Sections 323 and 452 IPC before the Judicial Magistrate 
First Class, who transferred the case to Second Class Magistrate for 
enquiry. The Second Class Magistrate issued process to the respon-
D dents, which was challenged under Section 482 Cr.P.C., on the ground 
that the First Class Magistrate transferred the case without taking 
cognizance and that the subsequent proceedings were illegal. The High 
Court dismissed the petition. Again the respondents approached the 
High Court under Section 482 Cr.P.C. alleging that the case had not 
been taken cognizance of, before it was transferred. This time the High 
E Court accepted the plea and quashed the proceedings. 
F 
This appeal, by special leave, challenges the High Court's order 
on the grounds that the second application under Section 482 Cr.P.C. 
ought not to have been entertained as it amounted to review of the 
earlier order and it was contrary to the spirit of section 362 Cr.P.C. 
Allowing the appeal, this Court, 
HELD: I.I The inherent power under Section 482 Cr.P.C. is 
intended to prevent the abuse of the process of the Court and to secure 
ends of justice. Suell power cannot be exercised to do something which 
G 
is expressly barred under the Code. If any consideration of the facts by 
way of review is not permissible under the Code and is expressly 
barred, it is not for the Court to exercise its inherent power to recon-
sider the matter and record a conflicting decisio.n., If there had been 
) 
change in the circumstances of the case, it would be in order for the 
High Court to exercise its inherent power in the prevailing circum-
H 
stances and pass appropriate orders to secure the ends of justice or to 
788 
\ 'r'" 
MOSTI. SIMRIKHIA v. SMT. DOLEY [FATHIMA BEEVJ, J.] 
789 
prevent the abuse of the process of the Court. Where there is no such 
changed circumstance and the decision has to be arrived at on the facts 
that existed as on the date of earlier order, the exercise of the power to 
reconsider the same materials to arrive at different conclusion is in 
effect a review, which is expressly barred mxler section 362. [790F-H; 791A] 
1.2 If a matter is covered by an express letter of law, the court 
cannot give a go-by to the statutory provisions and instead evolve a new 
' 
provision in the garb of inherent jurisdiction. The inherent jurisdiction 
of the High Court cannot be invoked to override bar of review under 
Section 362 Cr.P.C. [791E-H] 
Sooraj Devi v. Pyare Lal, I 1981] l SCC 500, relied on. 
Superintendent & Rememberancer of Legal Affairs. v. Mohan 
~ Singh, [1975] 3 SCC 706, referred to. 
2. In the instant case, there had been a definite finding that the 
complaint was taken cognizance of by the Magistrate before he trans-
ferred the proceedings under section 192(2) Cr.P.C. for enquiry under 
section 202 Cr.P.C. This finding has been arrived at after perusal of the 
record of the proceedings before the Magistrate and on a consideration 
of the report of the concerned Magistrate. A reappraisal of the facts on 
record to determine whether such cognizance bad been taken in a subse-
quent proceeding is not, therefore, warranted. It was not open to the 
parties to reagitate the question by a fresh application nor was the court 
empowered under section 482 to reconsider the matter. [7918-C] 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 128 of 1990. 
FrQm the Judgment and Order dated 19.8. 1989 of the Patna High 
Court in Criminal Miscellaneous No. 2314 of 1989. 
A.D. Sikri, Ranjan Mukherjee and D. Goburdhan for the 
Appellant. 
R.K. Garg and A. Sharan for the Respondents. 
The Judgment of the Court was delivered by 
FATHIMA BEEVI, J. Special leave granted. 
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790 
SUPREME COURT REPORTS 
[ 1990] 1 S.C.R. 
A 
The legality of the order of the High Court dated 19.8.1989 
passed on an application made under section 482 Cr.P.C. is challenged -1 
in this appeal. In a case instituted on a private complaint by .the appel-
lant for offences under sections 452 and 3231.P.C., the Judicial Ma

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