Month: December 2018

The Consumer Protection Bill, 2018


Highlights of the Bill

Hiba – Gift under Muslim Law

Introduction –

In Muslim law, gifts are called “hiba”. The gifts in India are governed by Transfer of Property Act, 1872. However, the provision of Transfer of Property Act, 1872 does not apply to Muslim law. The English term, ‘gift’ is of a wider connotation and applies to all transactions where one transfer’s one’s property to another without any consideration. The term hiba has a narrow meaning.

According to Ameer Ali, “A hiba is a voluntary gift without consideration of property or the substance of thing by one person to another so as to constitute the done the proprietor of the subject-matter of the gift.” Muslim law allows a Muslim to give away his entire property by a gift inter-vivos, even with the specific object of disinheriting his heirs. [Abdul vs. Ahmed, (1881) 8 IA 25]

Essentials of a Hiba

According to Ameer Ali, a hiba will be valid if the following conditions are fulfilled:-

  1. The manifestation of the wish to give on the part of the donor,
  2. Acceptance of the gift, express or implied, by the done, and
  3. Taking of possession of the subject-matter of the gift by the donee, either actually or constructively. [Jamela vs. Abdul Rahman, 2001 Guj. 175]

Capacity to make a Hiba

Mental capacity – Every Muslim, male or female, married or unmarried, who has attained the age of majority and who is of sound mind has the mental capacity to make a gift. The rule of Muslim law of majority, i.e. attainment of puberty, does not apply to gifts. A person of unsound mind can make a valid gift during lucid intervals. The Muslim law-givers recognize the doctrine of ikrash or compulsion, and a gift-deed executed under compulsion is not valid. In such a case the gift is voidable, and it can be avoided by the donor whose consent was so obtained.

Financial capacity – The Malikis hold the view that a person under insolvent circumstances or extremely involved circumstances have no capacity to make a gift. On the other hand, the Hanafis hold the view that insolvency does not create an incapacity to make a gift, but the kazi has the power to render such gift nugatory if it is made with a view to defrauding the creditors. The Indians court follow the Hanafi view. In every gift, there must be a bona fide intention on the part of the donor to transfer property to the donee.  And, if a gift is made with an intention to defraud the creditors, the gift I invalid. [Abdul vs. Mir Md, (1886) 11 IA 10]  

Subject-matter of Gift

All forms of property over which dominion could be exercised, or anything which could be taken into possession, or which could exist as a specific entity, or as an enforceable right, maybe the subject-matter of a valid gift. Muslim law, in this context, makes no distinction between ancestral or self-acquired or between movable and immovable property.

Gift of Musha

The word “musha” means an undivided share or part of a property, movable or immovable. Among the Shafis and Ithana Asharis, the gift of musha is valid, if the donor withdraws his dominion and allows the donee to exercise control. [Sadiq vs. Hashim, (1916) 43 IA 212]

But the rule is otherwise among the Hanafis. The general rule is thus laid down in the Hedaya, “A gift of a part of a thing which is capable of a division is not valid unless the said part is divided off and separated from the property of the donor, but a gift of an indivisible thing is valid.”

The doctrine of musha has been subject to much criticism. It has been said that the doctrine is “wholly unadapted to a progressive society”. [Sheikh Md. vs. Zabeda, (1889) 16 IA 205] The doctrine has been confined to within the strictest rules by judicial interpretation and has been cut-down considerably.

Donee

Under the Muslim law, a gift may be made to any person without any distinction of age, sex or religion. Under the Hanafi law, the donee must be must be legally in existence at the time of hiba. Thus, a gift to an unborn person, one not in existence, either actually or presumably, is invalid. Under the Shia law, a gift to an unborn person can be validly made provided the gift commences with a person in existence.

Formalities: Delivery of Possession

Under Muslim law, a gift may be made orally or in writing, irrespective of the fact whether the property is movable or immovable. [Ibrahim vs. Noor Ahmed, 1984 Guj. 126] The only formality that is essential for the validity of a Muslim gift is “taking a possession of the subject-matter of gift by the done either actually or constructively”. [Mohammed vs. Fakr, (1922) 49 IA 195]

Who can Challenge a Hiba or Gift

A stranger cannot challenge the validity of a gift on the ground that the gift is bad as no delivery of possession has been made. A gift on this ground can be challenged only when the issue is raised between the donor or those claiming under him on one side and the done and those claiming under him on the other.

Conditional or Contingent Hiba or Gifts

The contingent or conditional gifts are those which are made dependent for their operation upon the occurrence of a consistency. A contingency is a possibility, a chance, an event, which may or may not happen. In Muslim law, contingent or conditional gifts are void.

In Muslim law, a gift is not rendered invalid, by involving an invalid condition. Hanafi law clearly lays down that in such a case the gift is valid and the condition is valid.

Under Shia law, if the conditions attached to a gift is subsidiary, then both the gift and the condition are valid.

Revocation of Gifts

Although there is a tradition which indicates that the Prophet was against the revocation of gifts, it is a well-established rule of Muslim law that all voluntary transactions, including gifts, are revocable.

Modes of Revocation

  1. Revocation of gifts before the delivery of possession
  2. Revocation of gifts after the delivery of possession

Revocation of gifts before the delivery of possession

Under Muslim law, all gifts are revocable before the delivery of possession is given to the done. The fact of the matter is that under Muslim law no gift is complete till the delivery of possession is made, and therefore, in all those cases where possession has not been transferred, the gift is incomplete. The revocation of such a gift, therefore, merely means that the donor has changed his mind and does not want to complete it by the delivery of possession.

Revocation of gifts after the delivery of possession

Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not sufficient to revoke a gift. Until a decree of the court is passed revoking the gift, the donee is entitled to use the property in any manner, he can also alienate it. [Mahboob vs. Abdul, 1964 Raj 250]

The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked by his heirs after his death. A gift can also not be revoked after the death of the donee. (There are some exceptions in Hanafi School)A


References:

  1. Aqil Ahmad, Mohammedan Law, 23rd Edition
  2. Dr. Paras Diwan, Muslim law in Modern India, 12th Edition
  3. M. Hidayatullah, Mulla Principle of Mohammedan Law, 19th Edition
  4. SCC Online
  5. Supreme Court Words and Phrases, 3rd Edition, Eastern Book Company

What is the difference between a will and a gift in Muslim law?

Definition of will:
Baillie:

A will a conferment of rights property in a specific thing or a profit or an advantage or in gravity to take effect on the death of the testator.
Fatawa alamgiri:
Will is a legal declaration of the intention of a testator with respect to his property which desires to be carried into effect his death.

Definition of gift (Hibba):
Hedaya:

A hibba is a transfer of Tengible property without consideration.
Fyzee:
It is the immediate and unqualified transfer of the corpus of the property without any return.

Difference between gift and will:
I. As to completion:

Will is aecuted after the death of the testator.
Gift is completed during the life time of the donor.
II. As to condition:
Will is dependent upon a condition i.e. the death of the testator.
Gift is operated immediately.
III. As to revocation:
Will can be revoked at any time before the death of testator.
Gift after the delivery of the possession is usually irrevocable.
IV. As to limitation:
In will the right of making a will is limited in two ways.
In gift the right of donor to gift is unrestricted.
V. As to existence of subject matter:
It is not necessary that subject matter of the will must be exist at the time of making will.
The subject of gift must be in existence at the time of making gift.
VI. As to delivery of possession:
Delivery of possession is not required in the will.
In a gift there must be delivery of the possession of the property to the donee.
VII. As to doctrine of mushaa:
The doctrine of Mushaa has no application in case of will.
The doctrine of Mushaa is applicable in case of gift.
VIII. As to acceptance:
In will acceptance by the legatee in not necessary.
In gift acceptance by the legatee in necessary.
IX. As to registration:
Registration of will is optional.
Gift must be registered under the registration act.
X. As to insanity:
The subsequent insanity of the testator makes the will void.
Gift after the delivery of the possession is irrevocable on the ground of insanity.
XI. As to consideration:
A will is always without consideration.
In some case there is consideration in gift.

The gift is the transfer of property which is made immediately and without any exchange by one person to another will is dependent upon a condition lies the death of the testator. the gift and will are two different things under Islamic law.

Criminal court inherent powers

Andhra High Court
C. Subramanyam vs C. Sumathi And Anr. on 17 October, 2003
Equivalent citations: 2003 (2) ALD Cri 905, I (2004) DMC 456
Author: Bilal Nazki
Bench: B Nazki, K Bhanu

JUDGMENT Bilal Nazki, J

1. This is the reference made by a learned Single Judge of this Court on 12.2.2002 in respect of order dated 19.7.2001 passed by the learned Judicial First Class Magistrate, Pakala in Crl. M.P. No. 798 of 2001 in M.C. No. 5 of 2000.

2. The brief facts that are necessary for answering the present Reference are that the first respondent herein filed a petition seeking to set aside the order dated 4.10.2000 whereunder the maintenance petition filed by her in M.C. No. 5 of 2000 was dismissed for default. She filed the said maintenance petition against her husband. When the case came up for hearing on 4.10.2000 for her non-appearance, the Court dismissed the maintenance petition for default. She filed a petition seeking restoration of the maintenance petition on the ground of ill-health. Her husband contended that no medical certificate in support of the claim of ill-health was filed and the default order could not be set aside. After hearing both sides, the learned Magistrate allowed the petition placing reliance on the decision reported in the case of Smt. Prema Jain v. Sudhir Kumar Jain, 1980 Cr.L.J. 80. Against the said order, the husband filed Crl. R.C. No. 984 of 2001 which came up before the learned Single Judge.

3. The learned Judge, after considering the decisions of various High Courts and for the reasons mentioned in the reference order, is of the view that having regard to the fact that the trend of judicial decision appears to be that an application for maintenance dismissed for default, can be restored and the Magistrate can entertain an application for setting aside the default order and pass appropriate orders thereon. Since this view is contrary to the view of this Court in Abdul Waked v. Hafeez Begum and Ors., 1986 (2) APLJ 200, the learned Single Judge is of the opinion that the judicial discipline requires that the matter should be referred to the Bench consisting of two Judges to have an authoritative pronouncement in the matter. The Reference is accordingly posted before us.

4. We have heard the learned Counsels for both sides and also taken the assistance of Senior Advocate, Mr. C. Padmanabha Reddy as amicus curiae. The short point that falls for consideration before us is whether the Magistrate is having inherent powers to restore a petition for maintenance, which was dismissed for default.

5. According to the learned Single Judge that when the Magistrate has no power to dismiss the application filed under Section 125 for default and pass an illegal order, by dismissing the petition for default that is to say, he has no power to rectify the mistake and the illegal order passed by him should be perpetuated would result in miscarriage of justice and the Court should rectify its own mistake as seen from the principle “actus curiae neminem gravabit”. It is also observed that . the Apex Court was of the view that the proceedings under Section 488 of the Code of Criminal Procedure (old Code) are of civil nature vide Mst. Jagir Kaur and Anr. v. Jaswant Singh, .

In Abdul Wahed’s case, it is held as follows :

“The Trial Court is not empowered to pass an order dismissing the application for default and much less the application for setting aside the default order cannot be entertained. It is obvious that the Trial Court has no power to pass a default order. The revision has been filed before the Sessions Court against the order declining to set aside the ex parte order and restore the same on file. The Magistrate has no power to pass default order or set aside such ex parte order and the Sessions Court invoking the revisional jurisdiction cannot clothe such power with the Magistrate in the absence of provision to that effect in the Criminal Procedure Code. Though the revision petition before the Sessions Court is confined to the order declining to set aside the ex parte order the Sessions Court under the powers vested in revisional jurisdiction is justified in setting aside the original order dismissing the application for default. The Sessions Court has ample power under revisional jurisdiction to revise any illegal order passed by the Subordinate Court and need not be fettered by the subject-matter in the revision petition. Considering from this perspective the order of the Sessions Court is sustainable. Revision petition dismissed.”

6. A perusal of the above decision shows that the Trial Court is not empowered to pass an order dismissing an application for maintenance for default, much less an application for setting aside the default order cannot be entertained. To the same effect is the decision reported in the case of Shyamta v. Smt. Dangra and Anr., 1980 All.L.J., 135, wherein it is held as follows :

“A Criminal Court cannot even review its judgment or order. It can only correct clerical or arithmetical errors. Section 488(6) contemplates only one situation in which restoration of an order passed under Section 488Cr.P.C. can be done. It is only when an ex parte order has been passed against a husband, this remedy is not available to a wife who files a petition for maintenance. The learned Sessions Judge was wrong in holding that the Magistrate could have restored her application in the exercise of inherent powers. As held in the case of Krishna Rao Paine v. Pramila Bai, (1976 Crl. L.J. 1819) (All), Magistrate has no power under Section 561A to order restoration. The inherent powers are possessed only by the High Court. The proceedings may be of a quasi-judicial nature but that does not mean that the Magistrate dealing with them gets all the powers of a Civil Court. In Hakimi Jan Bibi v. Monze AH, (1905 (2) Crl. LJ 213) a Division Bench of the Calcutta High Court had held that the law does not empower a Magistrate to rehear an application for maintenance under Section 488Cr.P.C. dismissed for non-appearance. I respectfully subscribe to this view. A wife whose application for maintenance has been dismissed for default can file a second application and on this ground also the question of restoration of previous application does not arise”

7. From the above decisions, it is clear that the Criminal Court has not conferred with the power to review its own judgment, but it can only correct clerical or arithmetical errors therein. To the same analogy, it is pertinent to quote the observations of the Apex Court in A.S. Gauraya v. S.N. Thakur, , which reads as follows:

In B.D. Sethi v. V.P. Dewan, , a Division Bench of the Delhi High Court held that a Magistrate could revive a dismissed complaint since the order dismissing the complaint was not a judgment or a final order. In para 9, the Court observes as follows: ‘9. As long as the order of the Magistrate does not amount to a judgment or a final order there is nothing in the Criminal Procedure Code prohibiting the Magistrate from entertaining a fresh application asking for the same relief on the same facts or from reconsidering that order. During the course of the proceedings, a Magistrate has to pass various interlocutory orders and it will not be correct to say that he has no jurisdiction to reconsider them….’.

We would like to point that this approach is wrong. What the Court has to see is not whether the Codeof Criminal Procedure contains any provision prohibiting a Magistrate from entertaining an application to restore a dismissed complaint, but the task should be to find out whether the said Code contains any provision enabling a Magistrate to exercise an inherent jurisdiction which he otherwise does not have. It was relying upon this decision that the Delhi High Court in this case directed the Magistrate to recall the order of dismissal of the complaint. The Delhi High Court referred to various decisions dealing with Section 367 (old Code) of the Criminal Procedure Code as to what should be the contents of a judgment. In our view, the entire discussion is misplaced. So far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction.

For our purpose, this matter is now concluded by a judgment of this Court in the case of Bindeshwari Prasad Singh v. Kali Singh, . We may usefully quote the following passage at page 126 (of SCR) : (at p. 2433 of AIR):

‘…….. Even if the Magistrate had any jurisdiction to recall this order, it could have been done by another judicial order after giving reasons that he was satisfied that a case was made out for recalling the order. We, however, need not dilate on this point because there is absolutely no provision in the Criminal Procedure Code of 1898 (which applies to this case) empowering a Magistrate to review or recall an order passed by him. Criminal Procedure Code does contain a provision for inherent powers, namely, Section 561-A which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the Subordinate Criminal Courts have no inherent powers. In these circumstances, therefore, the learned Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision. In fact, after having passed the order dated 23.11.1968, the Sub-Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever. In these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint was entirely without jurisdiction. This being the position, all subsequent proceedings following upon recalling the said order would fall to the ground including order dated 3.5.1972, summoning the accused which must also be treated to be nullity and destitute of any legal effect. The High Court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings. It was suggested by Mr. D. Goburdhan that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint. We are, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out. This has been held by this Court in Pramatha Nath Taluqdar v. Sdaroj Ranjan Sarkar, . For these reasons, therefore, the appeal is allowed. The order of the High Court maintaining the order of the Magistrate dated 3.5.1972 is set aside and the order of the Magistrate dated 3.5.1972 summoning the appellant is hereby quashed’.”

8. Though the above decision is not directly on the point, but it clearly provides that the subordinate Criminal Courts have no inherent powers in recalling the order. A contra view is taken by a Division Bench of Punjab and Haryana High Court in Kamla Devi v. Mehma Singh, 1989 Crl. L.J. 1866, wherein it is held that :

“There is no provision in Chapter 9 of Code of Criminal Procedure dealing with the application for grant of maintenance of wives, children and the parents, but to dismiss such application for non-appearance of the petitioner. Since such applications are not to be equated with criminal complaint which necessarily ought to be dismissed for non-appearance of the complainant in view of Section 256of Code of Criminal Procedure, it is only in the exercise of inherent power of the Court that for non-appearance of the petitioner, the application under Section 125 of the Code is dismissed. If that is so, there is no reason why there should not be inherent power with the Court to restore such applications dismissed in default on showing sufficient cause by the petitioner for his non-appearance.”

9. To the same effect, the decision reported in the case of S.K. Alauddin v. Khadiza Bibi, 1991 Crl. L.J. 2035, wherein a learned Single Judge of the Calcutta High Court has held as follows :

“Following the decision of the Supreme Court reported in 1963 SC 1521, I hold that instant proceedings before me under Section 125, Cr. P.C. is a proceeding of a civil nature in which the Magistrate can invoke the inherent powers to recall his earlier order finally disposing the proceeding of this nature provided sufficient grounds are shown.”

10. In another decision reported in the case of Smt. Prema Jain v. Sudhir Kumar Jain (supra), a learned Single Judge of the Delhi High Court has held that as below :

“The order in the present case was of administrative nature, rather than the judicial one and the Magistrate cannot be held to be incapable of reviewing or reversing the same. This view finds strength in the provision following Section 125, in the same chapter which entitles the Court to alter or review or to cancel its judicial orders.”

11. Firstly, we deal with the maxim of equity, namely “actus curiae neminem gravabit” which means an act of Court shall prejudice no man. This maxim is founded upon justice and a Good Sense, which serves safe and certain guidelines for the administration of law.

12. After disposal of the main petition on 4.10.2000, there was no lis pending in the Court of Judicial First Class Magistrate, Pakala. Crl. M.P. No. 798 of 2001 was preferred under Section 126(3) of the Code of Criminal Procedure praying for restoration of M.C. No. 5 of 2000 which was dismissed for default.

Section 126(3) reads as follows :

“The Court in dealing with applications under Section 125 shall have power to make such order as to costs as may be just.”

This provision relates to imposition of costs to the successful parties in order to compensate for the costs incurred. So, this provision does not confer any power to the Magistrate to recall the order dated 4.10,2000. The maintenance proceedings stood terminated by that date and the case was disposed of. There is no provision in the Code to restore the application under Section 125Cr.P.C. which was dismissed for default. In the absence of specific provision, the maxim has no application as there is no Us pending in the Trial Court. Section 362 of the Cr.P.C. mandates that no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. This section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specfic statutory provision becomes functus officio and disentitled to entertain a prayer with the same relief unless formal order of final disposal is set aside by the Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment a final order disposing of the case is signed. In the new Section 362 of the Code of Criminal Procedure which was drafted keeping in view of the recommendations of 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment, but also to the final order other than the judgment. This provision applies to any order or judgment disposing of the case under Criminal Procedure Law. Though the proceedings under Section 125 are in the nature of civil proceedings, that does not mean Section 151 of CPC would apply. Therefore, any order passed under Section 125 of Code of Criminal Procedure is subject to Section 362 of Cr.P.C. Though the order passed by the learned Judicial Magistrate of First Class is illegal, but he cannot rectify it under the guise of review. It can be corrected only by invoking revisional jurisdiction by the concerned Court as contemplated under the Code. Therefore, in our view, entertainment of the Miscellaneous Petition after disposal of the main case and restoration of the main case by the learned Judicial First Class Magistrate, Pakala are unwarranted and not referable to any statutory provision. In support of our view, a decision reported in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh, , may be quoted, wherein it has clearly been laid down that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment, as there is no provision in the Code of Criminal Procedure which would enable the High Court to review the same or to exercise revisional jurisdiction. In the same way, the subordinate Criminal Courts have no inherent power to invoke under Section 482 of Cr.P.C. which vests such power only with High Courts. There is no provision in the Cr.P.C. which would enable the learned Magistrate to review or recall the order dated 4.10.2000.

13. In view of the above discussion, we hold that, firstly a Magistrate has no power to dismiss a petition under Section 125Cr.P.C. for default, and secondly, for any reason, if it is dismissed, the said Court will become functus officio and it has no power to set aside the default order, the earlier order is illegal notwithstanding. In such a case, the affected party has to take recourse to the revisional jurisdiction as contemplated under the Code of Criminal Procedure.

inherent powers of Criminal court

Supreme Court of India
Minu Kumari And Anr vs The State Of Bihar And Ors on 12 April, 2006
Author: A Pasayat
Bench: Arijit Pasayat, S.H. Kapadia
           CASE NO.:
Appeal (crl.)  420 of 2006

PETITIONER:
Minu Kumari and Anr.

RESPONDENT:
The State of Bihar and Ors.

DATE OF JUDGMENT: 12/04/2006

BENCH:
ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:

J U D G M E N T (Arising out of (SLP (Crl.) No. 4607 of 2003) 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 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 under Sections 341323 and 435 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC‘) was registered vide Raghunath Pur P.S. case 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 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 IPC. The learned CJM also ordered for issuance of summons and made over the case to the court of Judicial Magistrate, 1st 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 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 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 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 under Section 482 of the Code 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.

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. 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 1st Additional District and Sessions Judge was correct. But the High Court should have exercised power under Section 482 of the Code.

In Abhinandan Jha and another v. Dinesh Mishra (AIR 1968 SC 117), this Court while considering the provisions of Sections 156(3)169178 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 sheet, when they have sent a report under Section 169 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 to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation 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 173(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 (1) 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 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., (1) 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 further proceeding, take congnizance of the offence and issue process; or (3) 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 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(1)(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 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 under Section 200 or Section 202 also. [See M/s. India Carat Pvt. Ltd. v. State of Karnataka and another (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 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 informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. This Court in Bhagwant Singh v. Commnr. of Police (1985 (2) SCC 537) held that where the Magistrate decides 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 informant 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.

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 evidence to justify forwarding of a case to a Magistrate, it is termed 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 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 informant 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 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 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 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 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 by this Court in All India Institute of Medical Sciences Employees’ Union (Reg.) through its President v. Union of India and others (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 v. State of Maharashtra and Ors. (2004 (7) SC 768).

Section 362 of the Code, as noted above, permits correctness of clerical 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 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 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 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 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 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 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 great caution in its exercise. Court must be careful to see that its decision in 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 normally refrain from giving a prima facie 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 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).

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 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 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 dis- agreed with the opinion of the investigating agency and therefore ordered issuance of summons. 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.