Holding

The availability of a revision petition under Section 397 does not bar the High Court from exercising its inherent jurisdiction under Section 482 (or Section 483) to quash criminal proceedings, and issuance of summons is not an interlocutory order within the meaning of Section 397.

Summary

Dhariwal Tobaco Products Ltd. and its senior officials were charged with manufacturing adulterated Gutkha, violating Rule 62(1) of the Prevention of Food Adulteration Rules, 1955. A Judicial Magistrate issued summons, and the accused filed an application under Section 482 of the Code of Criminal Procedure, 1973 seeking to quash the proceedings. The Bombay High Court dismissed the application, holding that a revision petition under Section 397 was available and therefore the s.482 remedy was barred. The Supreme Court held that issuance of summons is not an interlocutory order within the meaning of s.397, and the mere availability of a revision remedy does not preclude the High Court from entertaining a s.482 application. The Court affirmed that the High Court may also act under s.483 and its inherent powers, and set aside the High Court’s order, directing a fresh consideration of the matter. The appeal was allowed.

Issues considered

Whether an application under Section 482 of the CrPC can be dismissed solely because a revision remedy under Section 397 is available.
Whether the issuance of summons by a Judicial Magistrate constitutes an interlocutory order within the meaning of Section 397 of the CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 397, s. 482, s. 483
Companies Act, 1956
Prevention of Food Adulteration Rules, 1955s. Rule 62(1)

Subjects

Section 482 CrPCSection 397 CrPCInherent jurisdictionRevision petitionInterlocutory orderQuash criminal proceedingsFood adulterationSummonsHigh Court jurisdiction

Judgment

[2008] 17 S.C.R. 844

A DHARIWAL TOBAGO PRODUCTS LTD. AND OTHERS
v. t-
I
..
..
~

•
'
STATE OF MAHARASHTRA AND ANOTHER
(Criminal Appeal No. 2055 of 2008)
DECEMBER 17, 2008 ...._
B
[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

CODE OF CRIMINAL PROCEDURE, 1973: ,... <
ss. 482 and 397 - Petition· seeking to quash order of
c Judicial Magistrate issuing summons - Dismissed by High
Court holding that remedy uls 397 could be availed of -
HELD: Issuance of summons is not an interlocutory order
within the meaning of s.397 - Only because a revision petition
is maintaina~le, it would not constitute a bar to entertain an
D application u/s 482 - Matter remitted to High Court for
decision afresh - Alternative remedy - Interlocutory order.
A criminal complaint was filed against appellant no.
1, its Chairman and the Managing Director, namely,
appellants no. 2 and 3, on the allegations that the 'Gutkha'
E manufactured by the company w.as found to be
adulterated in terms of r.62(1) of the Prevention of Food
Adulteration Rules, 1955. The Judicial Magistrate took
cognizance and issued summons. The petition filed by .
the appellants uls 482 of the Code of Criminal Procedure, ~
1973 seeking to quash the criminal proceedings was ,,
F dismissed by the High Court holding that revisional
jurisdiction uls 397 of the Code could be availed of.
,_-.,'
In the appeal filed by the accused, the question for
consideration before the Supreme Court was: Whether
an application u/s 482 of the Code of Criminal Procedure, .,.
I
G 1973 can be dismissed only on the premise that an
,._
alternative remedy of filing a revision application uls 397
of the Code was available? /It· .... '.
Allowing the appeal, the Court
H 844
DHARIWAL TOBACO PRODUCTS LTD. v. STATE OF · 845
MAHARASHTRA AND ANR.

HELD: Issuance of summons is not an interlocutory A
-t order within the meaning of s. 397 of the Code of Criminal
Procedure, 1973. Only because a revision petition is
maintainable, the same by itself would not constitute a
bar for entertaining ·an application under s. 482 of the
Code. The power of the High Court can be exercised not 8
only in terms of s. 482 but also in terms of s. 483 of the
Code. Inherent power of the High Court is not conferred
by statute but has merely been saved thereunder. Thus,
' it cannot be said that the jurisdiction of the High Court
would be held to be barred only because the revisional
jurisdiction could also be availed of. The judgment of the C
High Court is set aside. It would consider the matter
afresh on merits. [Para 8, 10 and 16] [848-C-D; 849-A; 854-
C-D]
R.P. Kapur v. State of Punjab AIR 1960 SC 866; Som
Mittal v. Govt. of Karnataka (2008) 3 SCC 574; Surya Dev D
Rai v. Ram Chander Ral and others (2003) 6 SCC 675;
~
Krishnan and another v. Krishnaveni and another (1997) 4
SCC 241; Ada/at Prasad v. Roop/al Jindal and others (2004)
7 SCC 338 and Amar Nath and others v. State of Haryana
and others AIR 1977 SC 2185, relied on. E
G. Sagar Suri v. State of UP. (2000) 2 SCC 636 and
Central Bureau of Investigation v. Ravi Shankar Srivastava
(2006) 7 sec 188, referred to.
Vishwanaath Ramkrishna Patil and:another v. Ashok
Murlidhar Sonar and Anr. 2006 (5) Mh.L.J. 671 and Keki F
---(
Bomi Dadiseth and others v. State of Maharashtra 2002 (3)
Mh.L.J.246, approved.
V.K. Jain and others v. Pratap V. Padode and Anr. 2005
(30) Mh.L.J. 778, overruled.
G
Case Law Reference:
2005 (30) Mh.L.J. 778 overruled para 6
,.. -}( AIR 1960 SC 866 relied on para 8
(2008) 3 sec 574 relied on para 8
(2003) 6 sec 675 relied on para 8 H
846 SUPREME COURT REPORTS [2008) 17 S.C.R.

(1997) 4 sec 241

.
A relied on para 10
(2004) 1 sec 338 relied on para 10 ~-
AIR 1977 SC 2185 relied on para 11
(2000) 2 sec 636 referred t9 para 12

B
(2006) 1 sec 188 referred to para 13
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
-
i

No. 2055 of 2008.
-
From the Judgment & Order dated 21.12.2006 of the High 4·
~-
Court Bombay at Mumbai in Criminal Application No. 7220 of
2005.
c
Siddharth Dave, Neil Hildreth, Praveen Kumar and Tarun
Gulati for the Appellants.
Madhavi Diwan and Ravindra Keshavrao Adsure for the
Respondents.
D The Judgment of the Court was delivered by
S.B. SINHA, J. 1. Leave granted. ,.
2. Whether an application under Section 482 of the Code
of Criminal Procedure, 1973; (for short 'the Code') can be
dismissed only on the premise that an alternative remedy of
E filing a revision application under Section 397 of the Code is
available, is the question involved herein.
3. First Appe.llant is a company incorporated and
registered under the Companies Act, 1956 and is engaged in
the business of manufacturing Gutkha. Appellant Nos. 2 and 3
F are the Chairman and Managing Director of the company. It is
said to be a large organization. It has multi-locational.. -,.-.-
manufacturing units and each of them is said to be headed by
senior officials of the company, who were responsible for the
conduct of its business. Inter alia on the premise that the '
.
'

G samples collected from the manufacturing unit of appellants at ~

Solapur were found to be adulterated in terms of Rule 62(1) of
the Prevention of Food Adulteration Rules, 1955 (in short '1955
~"'r-
Rules) providing for restriction on the use of anti-caking agents,
a criminal complaint was filed in the Court of the Judicial .
~
Magistrate, First Class at Akkalkot, Solapur. Cognizance was
H
. ,

DHARIWAL TOBACQ PRODUCTS LTD. v. STATE OF 847
MAHARASHTRA AND ANR. [S.B. SINHA, J.]

taken thereof and sur;nmons were issued to the appellants. A
'
4. They filed an application under Section 482 of the Code,
... -t which by reason of the impugned judgment and order dated
21st December, 2006 has been dismissed, stating :-
"2. The jurisdiction under section 482 of the said Code has
to be exercised sparingly and only in exceptional cases. B
As held by this Court in the case of V.K. Jain and others
(Supra) the jurisdiction under section 482 of the said Code
will not b~ exercised if recourse can be taken by" the
::>
-..{ Applicants to the remedy of filing a Revision Application
under Section 397 of the said Code. In this view of the c

-
matter, the Application is rejected. Notwithstanding the
reje'ction of this Application, it will be open for the
Applicants to take out appropriate proceedings before the
appropriate court. All contentions on merits are kept open."
5. By an order dated 30th April, 2007 a limited notice was D
issued. It reads :-
"Issue notice limited to the question as to whether the
matter should be directed to be considered afresh by the
High Court keeping in view the fact that other matters
~herein similar contentions have been raised are pending E
before the High Court.
Dasti service, in addition is permitted.
Liberty to mention after service is complete."
6. Mr. Siddhartha Dave, learned counsel appearing on
behalf of appellants would urge that the High Court committed F
---( a serious error in rejecting the application filed by appellants
under Section 482 of the Code without entering into the merit
of the matter. It was urged that reliance placed by the High
Court on its earlier judgment in V.K. Jain and others v. Pratap
V. Padode and another, [2005 (30) Mh.L.J. 778] rendered by G
the learned Single Judge of that Court is contrary to various
other decisions of the same Court inter alia in Vishwanaath
....,_-..:: Ramkrishna Patil and another v. Ashok Murlidhar Sonar and
another, [2006 (5) Mh.L.J. 671] and Keki Bomi Dadiseth and
H
848 SUPREME COURT REPORTS [2008] 17 S.C.R.

A others v. State of Maharashtra, [2002 (3) Mh.L.J. 246].
7. Ms. Madhavi Diwan, learned counsel appearing on
behalf of the respondents, on the other hand, contended that
having regard to the conduct of appellants, this Court should
not exercise its extra-ordinary jurisdiction under Article 136 of
-
B the Constitution of India, particularly when the power under
Section 482 of the Code should not be used mechanically or
routinely.
8. Indisputably issuance of summons is not an iriterlocutory
order within the meaning of Section 397 of the Code. This
c Court in a large number of decisions beginning from R.P. Kapur
v. State of Punjab, AIR 1960 SC 866 to Som Mittal v. Govt. of
Kamataka, [(2008) 3 SCC 574] has laid down the criterion for
entertaining an application under Sectio11 482. Only because
a revision petition is maintainable, the same by itself, in our
considered opinion, would not constitute a bar for entertaining
0
an application under Section 482 of the Code.
Even where a revision application is barred,. as for
example the remedy by way of Section 115 of the Code of Civil
Procedure, 1908 this Court has held that the remedies under
E Articles 226/227 of the Constitution of India would be available.
(See Surya Dev Rai v. Ram Chander Rai and others, [(2003)
6 sec 675]). ·
Even in cases where a second revision before the High
Court after dismissal of the first one by the Court of Sessions
F is barred under Section 397 (2) of the Code, the inherent power
of the Court has been held to be available.
9. The power of the High Court can be exercised not only
in terms of Section 482 of the Code but also in terms of Section
483 thereof. The said provision reads thus :-
G "483. Duty of High Court to exercise continuous
superintendence over Courts of Judicial Magistrates:-
Every High Court shall so exercise its superintendence
over the Courts of Judicial Magistrates subordinate to it
as to ensure that there is an expeditious and proper
disposal of cases by such Magistrates."
H
DHARIWAL TOBAGO PRODUCTS LTD. v. STATE OF 849
MAHARASHTRA-AND ANR. [S.B. SINHA, J.]

10. Inherent power of the High Court is not conferred by A
•

- --t statute but has merely been saved thereunder. It is, thus, difficult
to conceive that the jurisdiction of the High Court would be held
to be barred only because the revisional jurisdiction could also
be availed of.
(See Krishnan and another v. Krishnaveni and another, B
[(1997) 4 sec 241]).
. -.(.
In fact in Ada/at Prasad v. Roop/al Jindal and others,
[(2004) (7) sec 338)] to which reference has been made by
the learned Single Judge of the Bombay High Court in V.K. Jain
and others (supra) this Court has clearly opined that when a c
process is issued, the provisions of Section 482 of the Code
can be resorted to.
11. It may be true, as has been noticed by the High Court
that thereunder availability of appellate or revisional jurisdiction
of the High Court did not fall for its consideration but in our D
considered opinion it is wholly preposterous to hold that
"' Adalaat Prasad (supra), so far as it related to invoking the
inherent jurisdiction of the High Court is concerned, did not lay
down good law. The High Court in saying so did not only read
the said judgment in its proper perspective; it misdirected itself E
in saying so as it did not pose unto itself a correct question.
.. In Amar Nath and others v. State of Haryana and others,
[AIR 1977,SC 2185] it was opined:-
".... It was only with the passing of the impugned order that
the proceedings started and the question of the appellants F
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 G
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
H
850 SUPREME COURT REPORTS [2008) 17 S.C.R.

A Judicial Magistrate summoning the appellants in the
circumstances of the present case, particularly having
regard to what had preceded, was undoubtedly a matter
of moment, and a valuable right of the appellants had been
taken away by the Magistrate in passing an order prima
t~

-
B facie in sheer mechanical fashion without applying his
mind. We are, therefore, satisfied that the order impugned
was one which was a matter of moment and which did
involve a decision regarding the rights of the appellants. If .._~

~
the appellaritswere not summoned; then they could not have
·faced the trial at all, but by compelling the appellants to face
c a trial without proper application of mind cannot be held
to be an interlocutory matter but one which decided a "'
serious question as to the rights of the· appellants to be
put on trial."
12. We may notice that in G. Sagar Suri v. State of U.P.,
D ((2000) 2 SCC 636} this Court has held:-
"7. It was submitted by Mr Lalit, learned counsel for the
second respondent that the appellants have already filed
an application in the Court of Additional Judicial
Magistrate for their discharge and that this Court should
E not interfere in the criminal proceedings which are at the
threshold. We do not think that on filing of any application
for discharge, the High Court cannot exercise its jurisdiction ..
~

under Section 482 of the Code. In this connection,
reference may be made to two decisions of this Court in
F Pepsi Foods Ltd. v. Special Judicial Magistrate and
Ashok Chaturvedi v. Shitul H. Chanchani wherein it has ,.-
been specifically held that though the Magistrate trying a
case has jurisdiction to discharge the accused at any stage
of the trial if he considers the charge to be groundless but
G that does not mean that the accused cannot approach the
High Court under Section 482 of the Code or Article 227
of the Constitution to have the proceeding quashed
against them when no offence has been made out against
)\' -
,

them and still why must they undergo the agony of a criminal
trial.
H
DHARIWAL TOBACO PRODUCTS LTD. v. STATE OF 851
MAHARASHTRA AND ANR. [S.S. SINHA, J.]

8. Jurisdiction under Section 482 of the Code has to be A
exercised with great care. In exercise of its jurisdiction the
High Court is not to examine the matter superficially. It is
to be seen if a matter, which is essentially of a civil nature,
has been given a. cloak of criminal offence. Criminal
proceedings are not a short cut of other remedies
8
available in law. Before issuing process a criminal court
has to exercise a great deal of caution. For the accused
it is a serious matter. This Court has laid certain principles
on the basis of which the High Court is to exercise its
jurisdiction under Section 482 of the Code. Jurisdiction
under this section has to be exercised to prevent abuse C
of the process of any court or otherwise to secure the ends
of justice."
This Court therein noticed a large number of decisions to
opine that whenever the High Court comes to the conclusion
that allowing the proceeding to continue would be an abuse of P
the process of court and that the ends of justice require that
the proceedings should be quashed, it would not hesitate to do
so.
13. We may furthermore notice that in Central Bureau of
Investigation v. Ravi Shankar Srivastava, [(2006) 7 SCC 188] E
this Court while opining that the High Court in exercise of its
jurisdiction under Section 482 of the Code does not function
either as a court of appeal or revision, held:-
"?. Exercise of power under Section 482 of the Code in a
case of this nature is the exception and not the rule. The F
section does not confer any new powers on the High Court.
It only saves the inherent power which the Court
possessed before the enactment of the Code. It envisages
three circumstances under which the inherent jurisdiction
may be exercised, namely, (i) to give effect to an order G
under the Code, (ii) to prevent abuse of the process of
court, and (iii) to otherwise secure the ends of justice. It is
neither possible nor desirable to lay down any inflexible
rule which would govern the exercise of inherent
jurisdiction. No legislative enactment dealing with
H
852 SUPREME COURT REPORTS [2008] 17 S.C.R.

A procedure can provide for all cases that may possibly
arise. The courts, therefore, have inherent powers apart
-
from express provisions of law which are necessary for f~
proper discharge of functions and duties imposed upon
them by law. That is the doctrine which finds expression
in the section which merely recognises and preserves
B
inherent powers of the High Courts. All-courts, whether civil
or criminal possess, in the absence of any express
provision, as inherent in their constitution, all such powers
as are necessary to do the right and to undo a wrong in ,,,_ ).
the course of administration of justice on the principle
c "quando lex aliquid alicui concedit, concedere videtur et
id sine quo res ipsae esse non potest" (when the law gives
a person anything it gives him that without which it cannot
exist). While exercising powers under the section, the court
does hot function as a court of appeal or revision. Inherent
-
D jurisdiction under the section though wide has to be
exercised sparingly, carefully and with caution and only
when such exercise is justified by the tests specifically laid
down in the section itself. It is to be exercised ex debito
justitiae to do real and substantial justice for the
administration of which alone the courts exist. Authority of
E
the court exists for advancement of justice and if any
attempt ls·made to abuse that authority so as to produce
injustice, the court has power to prevent abuse. It would
be an abuse of the process of the court to allow any action·
which would result in injustice and prevent promotion of
F justice. In exercise of the powers the court would be justified
to quash any proceeding if it finds that initiation/
continuance of it amounts to abuse of the process of court
,,,
or quashing of these proceedings would otherwise serve
the ends of justice. When no offence is disclosed by the
G complaint, the court may examine the question of fact.
·When a complaint is sought to be quashed, it is
permissible to look into the materials to assess what the
complainant has alleged and whether any offence is made x .....
out even if the allegations are accepted in toto."
H 14. It is interesting to note that the Bombay High Court itself
DHARIWAL TOBAGO PRODUCTS LTD. v. STATE OF 853
MAHARASHTRA AND ANR. [S.B. SINHA, J.]

has taken a different view. In a decision rendered by the A
Aurangabad Bench of the Bombay High Court, a learned Single
-~-=;.-
Judge in Vishwanath Ramkrishna Patil (supra), where a similar
question was raised, opined as under:-
"It is difficult to curtail this remedy merely because there
is a revisional remedy available. The alternate remedy ;s 8
no bar to invoke power under Article 227. What is required
as to see the facts and circumstances of the case while
entertaining such petition under Article 227 _of the
Constitution and/or under Section 482 of Crimin~I
"" Procedure Code. The view therefore, as taken in both the c
cases V.K. Jain and Saket Gore, no way expressed tot~I
bar. If no case is made out by the petitioner or the party to
invoke the inherent power as contemplated under Sectiori
482 of Criminal Procedure Code and/or the discretionary
or the supervisory power under Article 227 of the
D
Constitution of India they may approach to the revisional.
Court, against the order of issuance of process.
11. Taking into consideration the facts and circumstances
of those cases, the learned Judge has observed in V.K.
Jain and Saket Gore (supra) that it would be appropriate
for the parties to file revision application against the order . E
of issuance of process. There is nothing mentioned and/
or even observed that there is total bar to file petition under
Section 482 of Criminal Procedure Code and/or petition
under Article 227 of the Constitution of India.
12. The Apex Court's decision already referred above, F
. '"' nowhere prohibited or expressly barred to invoke Section
482 of Criminal Procedure Code or Article 227 of the
Constitution of India against the order of issuance of
process."
In Keki Bomi Dadiseth (supra), another learned Single G
Judge of the Nagpur Bench of the Bombay High Court
entertained an application under Section 482 of the Code,
...,.,
where summons have been served for commission of offence
under the Prevention of Food Adulteration Act, 1954, holding:-
H
854 SUPREME COURT REPORTS [2008] 17 S.C.R.
)I
'
"'I
A "33. In view of the ratio laid down by the Apex Court in the
above referred cases, it is well settled that inherent power
under Section 482 can be invoked by the accused in the ~
'.,.
appropriate case irrespective of other factors and this
Court can exercise the same in a deserving case within
B parametres of law and, therefore, the contentions.
canvassed by the learned Additional Public Prosecutor in
this regard are misconceived and same are rejected."
15. In our considered opinion V.K. Jain (supra) does not
lay-dowrra-good law; It is over-ruled accordingly. )tr

c 16. For the reasons aforementioned the impugned
judgment cannot be sustained which is set aside accordingly.
The High Court is directed to consider the matter afresh on
merits, The appeal is allowed.
RP. Appeal allowed.
D

j>.