ORDER
S.D. Jha, J.
1. The Question arising for consideration in this Misc. Cri. Case and other similar Misc. Cri. Cases Nos. 888/92, Mis. Rajdhani Distillers v. M. P. State and 2428/92, Gajendra Kumar Sharma v. M. P. State, at this stage is whether prohibition under Sections 397(3) and 399(3) of the Code of Criminal Procedure, 1973 (hereinafter called ‘Code’) as to entertaining second revision application by this Court at the instance of the person, who had made application to Sessions Judge, prevents this Court from exercising its inherent jurisdiction under Section 482 of the Code even when requisite conditions for exercise of such power as stipulated in three Judge Bench in Madhu Limaye v. State of Bihar, 1978 Cr. LJ. 165 (SC) are fulfilled.
2. The question arises in view of recent decision of the Supreme Cout in Rajkumar Manchanda v. State of Karnataka, 1990 (Suppl) SCC 192, inter alia holding that merely by saying that jurisdiction of the High Court for exercise of its inherent power was being invoked, the statutory bar (under Section 397, Criminal Procedure Code) could not have been overcome.
3. At the hearing Shri S. G. Bagadiya argued that the two Judge Bench decision of Supreme Court in Rajkumar Manchanda’s case (supra) had not taken note of an earlier three Judge Bench decision of the Supreme Court in Madhu Limaye v. State of Bihar, 1978 Cr. LJ. 165 (SC). He submitted that this exercise of inherent power under Section 482 of the Code is not controlled any sub-section (3) of Section 397 of the Code. In support of his contention he relied on decision- of Rajasthan High Court in Raju and Ors. v. State of Rajasthan, 1991 Cr. LJ. 123, dealing with the scope and content of inherent power of the High Court under Section 482 of the Code. The decision dealing with the scope and content of inherent power under Section 482 of the Code in spite of Rajkumar Manchanda’s case (supra) held that in appropriate case on requisite conditions being fulfilled, inherent power under Section 482 of the Code can be exercised by the High Court and that Section 397(3) would not be a bar to exercise of the same.
4. Other learned counsel appearing in other cases for the petitioners have more or less as to maintainability of the petition urged similar arguments.
5. In the present case Shri P. K. Saxena, learned counsel representing the respondent, however, submitted that having regard to Supreme Court decision in Rajkumar Manchanda’s case (supra) the petitions for exercise of inherent power under Section 482 of the Code would not at all be maintainable and would deserve straightway rejection without looking into merits of the same. He submitted that without examining the merits of the case the present petition should straightway be dismissed.
6. For case of reference and proper appreciation of Section 482 of the Code and other relevant provisions for the. purpose of this order are reproduced below:-
Section 482 :
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. Section 397 :
(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or orr his bond pending the examination of the record.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(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 either of them.
Section 399 :
(3) Where any application for revision is made or on behalf of any person before the Sessions Judge, the decision of the Sessions Judge thereon in relation to such person shall be final and no further proceeding by way of revision at the instance of such persons shall be entertained by the High Court or any other Court.
Section 401:
(1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a court of Appeal by Sections 386, 389, 390 and 391 or on a Court of session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
7. Unlike sub-section (2) of Section 397 which wholly prohibits exercise of powers of revision in relation to any interlocutory order passed in any appeal, enquiry, trial or other proceedings, sub-section (3) of Section 397 and sub-section (3) of Section 399 only bar further proceeding by way of revision at the instance of the person, who had made an application for revision or on whose behalf an application was made before the Sessions Judge, subsection (3) of Section 399 of the Code attaches finality to the decision of the sessions Judge in respect of such person. The other party, who had not made such an application for revision to the Sessions Judge is not prohibited from moving this Court for exercising its power of revision nor is this Court precluded from entertaining such revision application. Further sub-section (1) of Section 401 of the Code dealing with the High Court’s power of revision where the proceeding of the record has been called for by the High Court or which otherwise comes to its knowledge would show that power of the High Court under this section is not controlled by sub-section (3) of Sections 397 and 399 of the Code which place embargo only on that applicant to move this court by way of revision who had presented an application for revision before the Sessions Judge.
8. The parameters of Section 482 of the Criminal Procedure Code were laid down by the Supreme Court in Madhu Limaye v. State of Maharashtra, AIR 1978 SC 47, in the following words :-
“At the outset the following principles may be noticed in relation to the exercise of the inherent power of the High Court which have been followed ordinarily and generally, almost invariably, barring a few exceptions :-
(1) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party ;
(2) That. it should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice ;
(3) That it should not be exercised as against the express bar of law engrafted in any other provision of the Code.
The decision related to the question whether in case of an interlocutory order governed by bar under sub-section (2) of Section 397 of the Code, High Court could exercise its inherent power under Section 482 of the Code to quash the order. Their Lordships referred to their earlier decision in Amarnath v. State ofHaryana and Ors., 1977 Cri. LJ. 1891 and the two points decided therein (para 6) of the judgment. The first point decided in the decision was as follows :-
“While we fully agree with the view taken by the learned Judge that where a revision to the High Court against the order of the subordinate Judge is expressly barred under sub-section (2) of Section 397 of the 1973 Code the inherent powers contained in Section 482 would not be available to defeat the bar contained in Section 397(2)”.
In para 7 of the judgment Their Lordships stated that statement of law apropos point No. 1 is not quite accurate and needs some modulation. Proceeding further in para 10 of the judgment after referring to Amarnath’s case (supra) and stating the legislative intention behind sub-section (2) of Section 397 of the Code, their Lordships held as under:-
“On a plain reading of Section 482, however, it would follow that nothing in the Code, which would include sub-section (2) of Section 397 also “shall be deemed to limit or affect the inherent powers of the High Court”. But, if we were to say that the said bar is not to operate in the exercise of the inherent power at all, it will be setting at naught one of the limitations imposed upon the exercise of the revisional powers. In such a situation, what is the harmonious way out ? In our opinion, a happy solution of this problem would be to say that the bar provided in sub-section (2) of Section 397 operates only in exercise on the revisional power of the High Court, meaning thereby that the High Court wilt have no power of revision in relation to any interlocutory order. Then in accordance with one or the other principles 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 Code, the High Court will refuse to exercise its inherent power. But in case the impugned order clearly brings about a situation which is an abuse of the process of the court 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 by the High Court. But such cases would be few and far between. The High Court must exercise the inherent power very sparingly”.
Their Lordships also gave illustrations where the power could be exercised.
9. It may be pointed out that Hon’ble Shri Justice N. L. Untwalia was member in both the benches which decided Amarnath’s case and Madhu Limaye’s case (supra).
10. Raj Kapoor and Ors. v. State (Delhi Administration) and Ors., AIR 1980 SC 258, is another decision deserving reference though not cited by the parties. The High Court had “refused to exercise its inherent power under Section 482 of the Code because the subject fell under its revisional power under Section 397 of the Code and this power was not exercised because of a copy of the short order of the trial court had not been filed as required by High Court rules. Justice V. R. Krishna Iyer, who wrote the leading Judgment in para 10 after formulating the question thus
“The First question is as to whether the inherent power of the High Court under Section 482 stands repelled when the revisional power under Section 397 laps” ; answered the question thus :
The inherent power of the High Court under Section 482 does not stand repelled when the revisional power under Section 397 overlaps, nothing in the Code, not even Section 397 can affect the amplitude of the inherent power preserved in so many terms by the language of Section 482. Even so, when a specific provision is made easy resort to inherent power is not right except under compelling circumstances. Not that there is absence of jurisdiction but that inherent power should not invade areas set apart for specific power under the same code. There is not total ban on the exercise of inherent power where abuse of process of the court or other extraordinary situation excites the Court’s jurisdiction. The limitation is self-restraint, nothing more”.
The Judge later in the judgment noted the agreement of the parties that the fanatical insistence on the formal filing of a copy of the order under cessation need not take up this Court’s time and recorded its conclusion concurring with the concession of counsel on both sides that merely because a copy of the order has not been produced, despite its presence in the records in the court, it is not possible for the Judges to hold that the entire revisory power stands frustrated and the inherent power stultified.
11. Jagir Singh v. Ranbir Singh and Anr., AIR 1979 SC 381, a two Judge Bench decision of the Supreme Court inter alia holding that revision cannot be entertained by both the High Court and Sessions Judge and where Sessions Judge refused to interfere with the order of Magistrate bar of Section 397 is attracted was not concerned with exercise of inherent power under Section 482 of the Code. It had also not noticed Madhu Limaye’s case (supra).
12. The High Court decisions in (1) Enumula Subbarao and Ors. v. The State, 1979 Cr. LJ. 259, (2) N. M. Velayudhan v. P. S. Sukamari, 1978 Cri. LJ. 1209, (3) Sorbeswar Milli v. Meghraj Malla and Ors., 1982 Cr. LJ. NOC 50 and (4) Avadh Pali Singh and Ors. v. Raj Bahadur Singh, 1978 Cri. LJ. NOC 288 (Allahabad), having a bearing on the question being earlier in point of time to Rajkumar Manchanda’s case (supra) do not require any discussion.
13. Besides, in Rajkumar Manchanda’s case (supra) the Supreme Court after formulating the question in the following words :
“The question for consideration is as to whether the bar under Section 397(3), Criminal Procedure Code should have been taken note of to reject the revision at the instance of the State Government or action taken by the High Court in exercise of its inherent power has to be sustained ?”
took note of the concession made by the counsel appearing for the State that the move before the High Court was really an application for revision of the order of the Magistrate releasing the truck. It is in this context that the Supreme Court observed :-
“Merely by saying that the jurisdiction of the High Court for exercise of its inherent power was being invoked the statutory bar could not have been overcome. If that was to be permitted every revision application facing the bar of Section 397(3) of the Code could be labelled as one under Section 482”.
The Division Bench decision based on the concession made by counsel appearing for the State that the application before the High Court was really an application for revision of the order of the Magistrate, cannot be said to have in any way affected the binding force as a precedent the Three Judge Bench Supreme Court decision in Madhu Limaye’s case (supra).
14. Under sub-section (2) of Section 397 of the Code where prohibition against entertaining revision application is total, the Supreme Court in Madhu Limye’s case has held that on requisite parameters being fulfilled inherent power under Section 482, Criminal Procedure Code can be invoked. As already said bar under sub-section (-3) of Sections 397 and 399 unlike sub-section (2) of Section 397 is only against the court entertaining revision applications at the instance of the party who moved the Sessions Judge. There is no bar against exercise of revisional power at the instance of the other party, suo motu or even at the instance of the third party, when inherent power can be exercised even in relation to an interlocutory order and provision placing total ban against exercising revisional power, there is no good reason why on requisite conditions being fulfilled the inherent power could not be exercised in respect of an order against which prohibition is partial and is only against the party who had moved the Sessions Judge and not this court.
15. The Rajasthan High Court in Raju and Ors. etc. v. State of Rajasthan, 1992 Cri. L.J. 723, a case relating to exercise of inherent power under Section 482 of the code in respect of an interlocutory order governed by bar under sub-section (2) of Section 397 of the Code as to exercise of revisionary power in respect of the order and further bar under sub-section (3) of Section 397 of the Code (to the extent material for the petition) on entertaining any further application by the same person by the High Court where the person had made an application to the Sessions Court. After referring to decision in Amamath’s case (supra), Rajkumar Manchanda and Madhu Limaye’s cases (supra) in paras 16 and 17 of the judgment concluded as under :-
“It appears that this three Judge Bench decision was not brought to the notice of their I^ordships, who decided Rajan Kumar’s case. Hence, in spite of Rajan Kumar, I am bound to follow the principle enunciated in Madhu Limaye’s case, which is decision of a larger Bench of the Apex Court and following the same I hold that even though a second revision by the petitioners was not competent before this court, yet this court is not precluded from preventing abuse of the process of the court and is competent to see that the ends of justice are secure.” Here, I may state that I am fully aware of the limitations that operate while exercising inherent jurisdiction of this court under Section 482, Criminal Procedure Code. This power has to be exercised very sparingly only to ensure that ends of justice are secured and to see that process of court is not abused.
16. Conclusion flowing from the above discussion is that if a case fulfiles to parameters of Madhu Limaye’s case (supra) reiterated in Rajkapoor and other v. State (Delhi Administration) and Ors., AIR 1980 SC 258, justifying invoking of inherent power under Section 482 of the Code, sub-section (3) of Section 397 would not impede exercise of such power by this court. On the same of reasoning bar under sub-section (3) of Section 399 of the Code on requisite conditions as aforesaid being fulfilled would not affect exercise of inherent power under Section 482 of the Code by this court.
17. Let the petitions now be listed for hearing for their admission or final disposal as may be necessary in each case in the light of this order.