Shukla Vs. State of Uttar Pradesh & Ors  INSC 227 (23 July 1999)
M.B.Shah Shah, J.
appears that unfortunately the High Court by exercising its inherent
jurisdiction under Section 482 of the Criminal Procedure Code (for short the
Code) has prevented the flow of justice on the alleged contention of the
convicted accused that it was polluted by so called misconduct of the judicial
officer. It is true that under Section 482 of the Code, the High Court has inherent
powers to make such orders as may be necessary to give effect to any order
under the Code or to prevent the abuse of process of any Court or otherwise to
secure the ends of justice.
the expressions abuse of the process of law or to secure the ends of justice do
not confer unlimited jurisdiction on the High Court and the alleged abuse of
the process of law or the ends of justice could only be secured in accordance
with law including procedural law and not otherwise. Further, inherent powers
are in the nature of extraordinary powers to be used sparingly for achieving
the object mentioned in Section 482 of the Code in cases where there is no
express provision empowering the High Court to achieve the said object. It is
well neigh settled that inherent power is not to be invoked in respect of any
matter covered by specific provisions of the Code or if its exercise would
infringe any specific provision of the Code.
present case, the High Court overlooked the procedural law which empowered the
convicted accused to prefer statutory appeal against conviction of the offence.
Court has intervened at an uncalled for stage and soft-pedaled the course of
justice at a very crucial stage of the trial.
present case, accused-respondents were charged for the offences punishable
under Sections 148, 302, 149 and also under Section 307/149 of the IPC for the
incident which took place at about 1.30 P.M. on 26th July,
1981 at the village in
Jhahirpur District, Lucknow. It appears that for one or the
other reason, the trial dragged on till the end of November 1997. The
proceedings as minuted by the Sessions Judge show that on 20.11.1997 judgment
was pronounced convicting Ram Gopal Misra, Ram Naresh and Radhey Sham Mishra
under Section 302 and 307 read with Section 149 of IPC. Accused Ram Gopal Misra
was absent, but the other two accused went outside the court and did not
return. So the case was posted to the succeeding days and since none of the
accused turned up the sessions court ordered non-bailable warrants of arrest to
be issued against them on 25.11.1997.
of appearing before the trial court the accused filed a petition under Section
482 of the Code which was numbered as Criminal Miscellanous Case No.743 of 1997
before the Lucknow Bench of the High Court of Allahabad.
matter was placed before Virendra Saran J. The learned judge called for the
comments of the Sessions Judge concerned. The court also directed the Sessions
Judge to send the record including the shorthand book in a sealed cover. Thereafter
on 6th January, 1998 the High Court stayed the execution
of warrants of arrest issued against the accused. It appears that from 6th January, 1998 to 29th January, 1999 the High Court posted the Criminal Miscellaneous Case to a
large number of days for hearing, but unfortunately on every such day the
hearing was merely adjourned, with a direction that interim order shall
the facts stated above, it is seen that Additional Sessions Judge pronounced
judgment dated 20-11- 1997 convicting the accused-respondents and as the
accused were required to be heard on the question of sentence, the matter was
kept on 21st, 22nd and 25th of November, 1997.
the accused failed to appear, the trial judge issued non-bailable warrants
returnable by 2nd
the informant-injured witness moved an application in the High Court for
modification of the order dated 9th December, 1997 that was placed before I.P. Vashishth,
J. who observed that it was contended by counsel for the private respondent
that since the convicting judgment was already pronounced by the trial court
and the matter was fixed for hearing, the petition was no longer maintainable,
however, as the application seeks modification of the Order, the same may be
placed before the Honble Judge whose order is sought to be modified.
Thereafter, Virendra Saran, J. on 6-1-1998 directed the matter to be placed before the appropriate bench on 20th January, 1998 and till that date the execution of
the warrants of arrest and the process issued under Section 82 and 83 CR.P.C. were
stayed. From that date onwards, the matter was adjourned for one or the other
reason, as stated above.
informant-injured witness filed this appeal by Special Leave and contended that
the accused who were convicted of the offence of murder of two persons have
succeeded in evading the arrest till that date and it amounts to abuse of the
process of the Court and the judicial system. It was submitted that accused
have misled the High Court by their misrepresentations and having obtained an
interim order of stay of arrest, accused on one pretext or the other, succeeded
in getting adjournments and thus delayed hearing of the matter. It was,
therefore, prayed that the proceedings in the High Court be quashed or the High
Court be directed to dispose of the application under Section 482 filed by the
accused. On 1st April,
1999 this Court has
directed as under:- Issue notice. The order passed by the High Court staying
the arrest of respondent Nos.2,3 & 4 in connection with their conviction
under Section 302/34 IPC is put in abeyance. In other words, the said
respondents are liable to surrender or it is open to the authority to put them
On 12th May, 1999 we directed that all further
proceedings in the Criminal Miscellaneous Case No.743 of 1997 of the Allahabad
High Court, Lucknow Bench be stayed until further orders from this Court.
view, the order passed by the High Court entertaining the petition of the
convicted accused under Section 482 of the Code is, on the face of it, illegal,
erroneous and to say the least, unfortunate. It was known to the High Court
that the trial court passed proceedings to the effect that final judgment and
order convicting the accused were pronounced by the trial court. It was also
recorded by the trial court that as the accused were absent, the court had
issued non-bailable warrants. In such a situation, instead of directing the
accused to remain present before the Court for resorting to the steps
contemplated by the law for passing the sentence, the High Court has stayed
further proceedings including the operation of the non-bailable warrants issued
by the trial court. It is disquieting that the High Court has overlooked the
important legal aspect that accused have a right of appeal against the order of
conviction purported to have been passed by the trial court. In such
circumstances the High Court ought not to have entertained a petition under
Section 482 of the Code and stonewalled the very efficacious alternative remedy
of appeal as provided in the Code.
because the accused made certain allegations against the trial judge the
substantive law cannot be bypassed.
this view of the matter, this appeal is allowed and the order passed by the
High Court entertaining the petition under Section 482 and the other interim
orders passed thereunder are quashed. The learned Sessions Judge is directed to
hear the accused on the question of sentence and pass appropriate orders
according to law. Till then the accused shall remain in jail. This appeal
stands disposed of accordingly.
make it clear that it is open to the High Court to consider all the contentions
which the accused may raise against the said conviction either in the appeal
which they may file, or administratively, untrammeled by any of the
observations made by us in the judgment.