Holding

The High Court was justified in exercising its inherent power under Section 482 CrPC to set aside the magistrate’s erroneous order and strike the appellants’ names from the list of accused.

Summary

An FIR was lodged alleging offences under Sections 341, 323 and 435 IPC. Police investigation found that two women, Minu Kumari and Runjhun Kumari, were not involved and submitted a charge sheet only against two men. The Chief Judicial Magistrate, however, took cognizance and issued summons against all accused, including the two women, claiming a clerical error. The women petitioned the magistrate, who ordered their names struck off the summons. The Additional District and Sessions Judge set aside that order, holding the magistrate had no power to recall his order under Section 362 CrPC. The women then filed a petition under Section 482 CrPC, which the Patna High Court dismissed, saying a subordinate court cannot recall its own order. The Supreme Court allowed the appeal, holding that the High Court was justified in exercising its inherent power under Section 482 to quash the erroneous summons and strike the women’s names from the list of accused, emphasizing the need for notice to the informant and the wide but cautious scope of inherent jurisdiction.

Issues considered

Whether a magistrate can recall or review his own order issuing summons on the ground of clerical error under Section 362 of the CrPC.
Whether the High Court can entertain a petition under Section 482 of the CrPC to set aside such an order despite the subordinate court's limitation.
Whether notice to the informant is mandatory when a magistrate proceeds against some accused but not others.
The scope and limits of the inherent jurisdiction of the High Court under Section 482 of the CrPC.

Legislation cited

Code of Criminal Procedure, 1973s. 156(3), s. 169, s. 170, s. 173(2), s. 190(1)(b), s. 190(1)(c), s. 200, s. 202, s. 203, s. 362, s. 482
Indian Penal Code, 1860s. 323, s. 34, s. 341, s. 435

Subjects

criminal procedureSection 482inherent jurisdictionmagistrate's orderclerical errorsummonsnotice to informantSection 362abuse of process

Judgment

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A MINU KUMARI AND ANR.
v.
STATE OF BIHAR AND ORS.

APRIL 12, 2006

B (ARIJITPASAYAT ANDS.H. KAPADIA,JJ.]

Code of Criminal Procedure, 1973-Sections 173(2), 190(/)(b), 362
and 482-Cognizance of offence-Summons issued by Magistrate to persons
C named in FIR against whom police finding no involvement in crime, did not
submit charge sheet-On an application of such persons that their names
were included in summoning order due to clerical error, Magistrate ordered
striking of their names from that order-District and Sessions Judge set aside
this order on the ground that Magistrate did not have power to recall or
review his order, and High Court upholding this view in a petition under
D Section 482 of the Code-Correctness of-It was not a case where Magistrate
disagreed with view of investigating agency and therefore ordered issuance
of summons, but was case of was a mistake-As Magistrate did not proceed
against some of the persons named in the FIR, issuance of notice to informant
thereof was mandatory, and its non-issuance prejudiced the informant-As
E correct procedure was not followed, High Court should have allowed the
petition under Section 482 of the Code-Issuance of summons to
aforementioned persons was bad and their names ordered to be struck from
the array of accused persons.

Code of Criminal Procedure, 1973-Section 482-Jnherent power of
F Court-Nature and exercise of Discussed
Maxim quando lex aliquid alicui concedit, concedre videtur et id sine
quo res ipsae esse non protest, applicability of

Words and phrases-'Charge sheet' or 'final report'-Meaning of-Jn
G the context of Sections 169 and 173 of Code of Criminal Procedure, J973.

In an investigation pursuant to a First Information Report (FIR), police
found that appellants were not involved in the crime and submitted charge
sheet only against other accused. However, Chief Judicial Magistrate (CJM)
who took cognizance of offence, directed issuance of summons against
H 1086
MINU KUMAR! v. ST ATE OF BIHAR 1087
appellants also. Appellants filed a petition against this before CJM praying A
that summons were issued to them due to clerical error. On this petition,
CJM ordered striking of names of appellants from order whereby summons
were issued. However, Additional District and Sessions Judge set aside this
order on the ground that CJM did not have any power to recall or review his .
order. Appellants challenged this in a petition to High Court under Section B
482 of Code of Criminal Procedure, 1973 which came to be dismissed on the
ground that the subordinate court could not have recalled its own order under
Section 362 of the Code on the pretext that there was correction of clerical
and arithmetical errors. Hence the present appeal.

Appellant contended that even if it is conceded that the CJM Court could C
not have recalled or reviewed its order, on the facts of the case the High Court
should have exercised power under Section 482 of the Code.

Allowing the appeal, the Court

HELD: 1. When a report fonvarded by the police to the Magistrate under D
Section 169 Cr.P.C. states that no offence has been committed and is placed
before the Magistrate, he has option of adopting one of the three courses (1)
he may accept the report and drop the proceeding; or (2) he may disagree
with report and take the view that there is sufficient ground for further
proceeding, take cognizance of the offence and issue process; or (3) he may
direct further investigation to be made by the police under Section 156(3). E
(1090-G; 1091-AI

Abhinandan Jha and Anr. v. Dinesh Mishra. AIR (1968) SC 117 and
Mis. India Carat Pvt. Ltd. v. State of Karna/aka and Anr., AIR (1969) 885
referred to.
F
2. Where the Magistrate takes a view that there is material for
proceeding against some and there is insufficient ground in respect of others,
the informant would certainly be prejudiced as First Information Report lodged
becomes wholly or partially ineffective. In such a case, notice to the informant
and grant of opportunity of being heard in the matter becomes mandatory, G
though there is no provision in the Code for issue of a notice in this regard.
(1091-E, F)
Bhagwant Singh v. Commr. of Police, (1985) 2 SCC 537, relied on.

3.1. Section 362 of the Code permits correction of clerical or
arithmetical errors. But High Court seems to have completely lost sight of H
1088 SUPREME COURT REPORTS (2006] 3 S.C.R.

A the scope and ambit of Section 482 of the Code. (1093-A)

3.2. High Court was not justified in rejecting the application in terms
of Section 482 of the Code. This is a case when the cognizance was taken,
summons were issued by mistake and the names of the appellants were also
mentioned in the order directing issuance of summons. Since the police have
B not found any material against the appellants, the CJM without following the
procedure as indicated above could not have directed issuance so far as they
are concerned. There was no indication that the CJM disagreed with the
opinion of the investigation agency and therefore ordered issuance of
summons. On the contrary, as noted by CJM, later was a mistake and,
C therefore, he had ordered to strike of the names of the appellants. The names
of appellants shall be struck off from the array of the accused person.
(1094-C, D, E)
All India Institute of Medical Science Employees' Union (Reg.) through
its President v. Union of India and Ors., (1996) 11 SCC 582; Gangadhar
D Janardhan and Ors., (2004) 7 sec 768; Janata Dal v. HS. Chowdhary (1992)
4 SCC 305 and Raghubir Singh (Dr.) v. State of Bihar, AIR (1964) SC 1,
referred to.
CRIMINAL ORIGINAL JURISDICTION : Criminal Appeal No. 420 of
2006.
E From the Judgment and Order dated 2.7.2003 of the High Court Judicature
at Patna in Cr. Misc. No. 28444 of2000.
J.N. Dubey, Anurag Dubey, qaurav Jain, Pramod Kumar and S.R. Setia
for the Appellants.
Gopal Singh for the Respondents.
F The Judgment of the Court was delivered by
ARIJIT PASAYAT, J. Leave granted.
Challenge in this appeal is to the legality of order passed by a learned
Single Judge of the Patna High Court rejecting the petition filed by the
G appellants in terms of Section 482 of the Code of Criminal Procedure, 1973 (in
short the 'Code').
Factual position in essence is as follows:

On the written report of informant Dhrup Narain Dubey, father of
-
respondents 2 and 3 case for alleged commission of offences punishable
H under Sections 341, 323 and 435 read with Section 34 of the Indian Penal
MINUKUMAR!v. STATEOFBIHAR[PASAYAT,J.) 1089
Code, 1860 (in short the '!PC') was registered vide Raghunath Pur P.S. case A
No.7/99 dated 20.8.1999. It was alleged that accused persons named in the FIR
assaulted the informant and others. However, the police after investigation
submitted charge sheet wherein three of the ladies accused were found to be
not involved in the case. The police submitted charge sheet only against
Harendra Dubey and Sheo Kumar Dubey. The charge sheet was placed before
the learned Chief Judicial Magistrate (in short the 'CJM') who by his order B
dated 15.2.1999 took cognizance of the offence and directed issuance of
processes against accused Sheo Kumar Dubey, Harendra Dubey, and
appellants Minu Kumari and Runjhun Kumari on the ground that there is a
prima facie case against them for the offences punishable u/s 341, 323 and
435 read with Section 34 !PC. The learned CJM also ordered for issuance of C
summons and made over the case to the court of Judicial Magistrate, I st
Class for favour of disposal.

However, on behalf of appellants Minu Kumari and Runjhun Kumari a
petition was filed before the Court of learned CJM praying therein that due
to clerical error the names of the appellants have also been mentioned in the D
order dated 15.2.1999 and cognizance was also taken and issuance of summons
was also ordered so far as they are concerned. The learned CJM on the above
petition got a miscellaneous case No.37/99 registered and by order dated
5.5.1999 he called for the record from the court of the Magistrate, where the
Trial No. 795/1999 was pending. The learned CJM heard learned counsel for E
the appellants and ordered to strike of their names.

The order passed by learned CJM was assailed before learned First
Additional District and Sessions Judge, Siwan who set aside the order holding
that the learned CJM did not have any power, muchless inherent power to
recall or review his order. With reference to Section 362 of the Code it was F
held that the Court is not empowered to alter the judgment save as otherwise
provided by the Code or by any other law for the time being in force. It was
further held that the order passed by learned CJM amounted to review.
Accordingly, the order passed by learned CJM was set aside.

Appellants questioned correctness of the order by filing a petition G
under Section 482 of the Code which came to be dismissed on the ground that
the Subordinate Court cou Id not have recalled its own order under Section
362 of the Code on the pretext that there was correction of clerical and
arithmetical errors.

H
1090 SUPREME COURT REPORTS [2006) 3 S.C.R.

A In support of the appeal, learned counsel for the appellants submitted
that approach of the High Court is clearly erroneous. Even if it is conceded
for the sake of argument that the Subordinate Court could not have recalled
or review its order, on the facts of the case the High Court should have
exercised power under Section 482 of the Code.

B In spite of service of notice respondents 2 and 3 have not entered
appearance.

Learned counsel for the State of Bihar submitted that technically the
learned !st Additional District and Sessions Judge was correct. But the High
C Court should have exercised power under Section 482 of the Code.

In Abhinandan Jha and Anr. v. Dinesh Mishra, AIR (1968) SC I 17, this
Court while considering the provisions of Sections 156(3), 169, 178 and 190
of the Code held that there is no power, expressly or impliedly conferred,
under the Code, on a Magistrate to call upon the police to submit a charge
D sheet, when they have sent a report under Section l 69 of the Code, that there
is no case made out for sending up an accused for trial. The functions of the
Magistracy and the police are entirely different, and the Magistrate cannot
impinge upon the jurisdiction of the police, by compelling them to change
their opinion so as to accord with his view. However, he is not deprived of
the power to proceed with the matter. There is no obligation on the Magistrate
E to accept the report if he does not agree with the opinion formed by the
police. The power to take cognizance notwithstanding fonnation of the opinion
by the police which is the final stage in the investigation has been provided
for in Section 190( 1)( c).

When a report forwarded by the police to the Magistrate under Section
F l 73(2)(i) is placed before him several situations arise. The report may conclude
that an offence appears to have been committed by a particular person or
persons and in such a case, the Magistrate may either (I) accept the report
and take cognizance of the offence and issue process, or (2) may disagree
with the report and drop the proceeding, or (3) may direct further investigation
G under Section 156(3) and require the police to make a further report. The
report may on the other hand state that according to the police, no offence
appears to have been committed. When such a report is placed before the
Magistrate he has again option of adopting one of the three courses open
--
i.e., (I) he may accept the report and drop the proceeding; or (2) he may
disagree with the report and take the view that there is sufficient ground for
H
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MINU KUMAR!v. STATEOFBIHAR[PASAYAT, J.] 1091

further proceeding, take congnizance of the offence and issue process; or (3) A
he may direct further investigation to be made by the police under Section
156(3). The position is, therefore, now well-settled that upon receipt of a
police report under Section 173(2) a Magistrate is entitled to take cognizance
of an offence under Section 190(1 )(b) of the Code even if the police report
is to the effect that no case is made out against the accused. The Magistrate B
can take into account the statements of the witnesses examined by the police
during the investigation and take cognizance of the offence complained of
and order the issue of process to the accused. Section 190( I )(b) does not lay
down that a Magistrate can take cognizance of an offence only if the
Investigating Officer gives an opinion that the investigation has made out a
case against the accused. The Magistrate can ignore the conclusion arrived C
at by the Investigating officer and independently apply his mind to the facts
emerging from the investigation and take cognizance of the case, if he thinks
\ ..
fit, exercise of his powers under Section 190(1)(b) and direct the issue of
process to the accused. The Magistrate is not bound in such a situation to
follow the procedure laid down in Sections 200 and 202 of the Code for taking
cognizance of a case under Section 190(1 )(a) though it is open to him to act D
under Section 200 or Section 202 also. [See Mis. India Carat Pvt. Ltd. v. State
of Karnataka and Anr., AIR ( 1989) SC 885].

The informant is not prejudicially affected when the Magistrate decides
to take cognizance and to proceed with the case. But where the Magistrate E
decides that sufficient ground does not subsist for proceeding further and
drops the proceeding or takes the view that there is material for proceeding
against some and there are insufficient grounds in respect of others, the
infonnant would certainly be prejudiced as the First Infonnation Report lodged
becomes wholly or partially ineffective. This Court in Bhagwant Singh v.
Commnr. of Police, [1985] 2 sec 537 held that where the Magistrate decides F
not to take cognizance and to drop the proceeding or takes a view that there
is no sufficient ground for proceeding against some of the persons mentioned
in the First Information Report, notice to the infonnant and grant of opportunity
of being heard in the matter becomes mandatory. As indicated above, there
is no provision in the Code for issue of a notice in that regard.
G
We may add here that the expressions 'charge-sheet' or 'final report'
are not used in the Code, but it is understood in Police Manuals of several
States containing the Rules and the Regulations to be a report by the police
filed under Section 170 of the Code, described as a "charge-sheet". In case
of reports sent under Section 169, i.e., where there is no sufficiency of H
t
'

1092 SUPREME COURT REPORTS [2006) 3 S.C.R.

A evidence to justify forwarding of a case to a Magistrate, it is tenned variously
i.e., referred charge, final report or summary. Section 173 in terms does not
-
refer to any notice to be given to raise any protest to the report submitted
by the police. Though the notice issued under some of the Police Manuals
states it to be a notice under Section 173 of the Code, though there is nothing
B in Section 173 specifically providing for such a notice.

As decided by this Court in Bhagwant Singh 's case (supra), the
Magistrate has to give the notice to the infonnant and provide an opportunity
to be heard at the time of consideration of the report. It was noted as follows:-

" .... the Magistrate must give notice to the informant and provide
C him an opportunity to be heard at the time of consideration of the
report ... "

Therefore, the stress is on the issue of notice by the Magistrate at the
time of consideration of the report. If the informant is not aware as to when
the matter is to be considered, obviously, he cannot be faulted, even if protest
D petition in reply to the notice issued by the police has been filed belatedly.
But as indicated in Bhagwant Singh 's case (supra) the right is conferred on
the informant and none else.

When the information is laid with the Police, but no action in that behalf
is taken, the complainant is given power under Section 190 read with Section
E 200 of the Code to lay the complaint before the Magistrate having jurisdiction
to take cognizance of the offence and the Magistrate is required to enquire
into the complaint as provided in Chapter XV of the Code. In case the
Magistrate after recording evidence finds a prima facie case, instead of
issuing process to the accused, he is empowered to direct the police concerned
F to investigate into offence under Chapter XII of the Code and to submit a
report. If he finds that the complaint does not disclose any offence to take
further action, he is empowered to dismiss the complaint under Section 203
of the Code. In case he finds that the complaint/evidence recorded prima
facie discloses an offence, he is empowered to take cognizance of the offence
and would issue process to the accused. These aspects have been highlighted
G by this Court in All India Institute of Medical Sciences Employees' Union
(Reg.) through its President v. Union of India and Ors., [1996] 11 SCC 582.
It was specifically observed that a writ petition in such cases is not to be
entertained.

The above position was highlighted in Gangadhar Janardan Mhatre
H v. State of Maharashtra and Ors., .(2004) 7 SC 768.
MINU KUMAR! v. STATE OF BIHAR [PASAYAT, J.] 1093
..;.....
Section 362 of the Code, as noted above, pennits correctness of clerical A
or arithmetical errors. There is no quarrel with that proposition. But the High
Court seems to have completely lost sight of the scope and ambit of Section
482 of the Code.

The Section does not confer any new power on the High Court. It only
saves the inherent power which the Court possessed before the enactment of B
the Code. It envisages three circumstances under which the inherent jurisdiction
may be exercised, namely, (i) to give effect to an order 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 procedure can provide for all cases that may possibly
c
arise. Courts, therefore, have inherent powers apart from express provisions
of law which are necessary for proper discharge of functions and duties
imposed upon them by law. That is the doctrine which finds expression in the
section which merely recognizes and preserves inherent powers of the High
Courts. All courts, whether civil or criminal possess, in the absence of any D
express provision, as inherent in their constitution, all such powers as are
necessary to do the right and to undo a wrong in course of administration of
justice on the principle "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
E
powers under the section, the court does not function as a court of appeal or
revision. Inherent 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 courts exist. Authority of the court exists for advancement of F
justice and if any attempt is made to abuse that authority so as to produce
injustice, the court has power to prevent abuse. It would be an abuse of
process of the court to allow any action which would result in injustice and
prevent promotion of justice. In exercise of the powers 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
G
otherwise serve the ends of justice.

As noted above, the powers possessed by the High Court under Section
482 of the Code are very wide and the very plenitude of the power requires
1 great caution in its exercise. Court must be careful to see that its decision in H
t
SUPREME COURT REPORTS [2006] 3 S.C.R.

-
1094
A exercise of this power is based on sound principles. The inherent power
should not be exercised to stifle a legitimate prosecution. The High Court
being the highest court of a State should nonnally refrain from giving a
primafacie decision in a case where the entire facts are incomplete and hazy,
more so when the evidence has not been collected and produced before the
Court and the issues involved, whether factual or legal, are of magnitude and
B cannot be seen in their true perspective without sufficient material. Of course,
no hard-and-fast rule can be laid down in regard to cases in which the High
Court will exercise its extraordinary jurisdiction of quashing the proceeding
at any stage. (See: Janata Dal v. H. S. Chowdhary, [1992] 4 SCC 305, and
Raghubir Saran (Dr.) v. State of Bihar, AIR (1964) SC 1).
c When the factual scenario is considered in the background of legal
principle set out above, the inevitable conclusion is that the High Court was
not justified in rejecting the application in tenns of Section 482 of the Code.
This is a case when the cognizance was taken, summons were issued by
mistake and the names of the appellants were also mentioned in the order
D dated 15.2.1999. Since the police have not found any material against the
appellants, the learned CJM without following the procedure as indicated
above could not have directed issuance of summons so far as they are
concerned. There was no indication that learned CJM disagreed with the
opinion of the investigating agency and therefore ordered issuance of summons.
E On the contrary, as noted by learned CJM later that was a mistake and,
therefore, he had ordered to strike of the names of the appellants. The High
Court's order is set aside. The names of the appellants shall be struck of from
the array of accused persons.

The appeal is allowed.
F V.S. Appeal allowed.