ARMY INSTITUTE OF LAW,

MOHALI

IN PARTIAL FULFILLMENT OF 5 YEARS BA LLB COURSE

Section 482 of the Criminal procedure

SUBMITTED TO: Dr Bajirao Rajwade

SUBMITTED BY: SANKALP CHHAJED

ROLL NO. : 1543

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Index

Sno Content Page

1 Acknowledgement 3

2 Introduction 4

3 Section 482 5-7

4 The Two Contradictory 7-10

5 Conclusion 11- 12

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ACKNOWLEDGEMENT

I take this opportunity to express my profound gratitude and deep regards to my guide, Dr
Bajirao Rajwade for his exemplary guidance, monitoring and constant encouragement
throughout the course of this thesis. The blessing, help and guidance given by him time to time
shall carry me a long way in the journey of life on which I am about to embark.

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Introduction

Section 482 of the Code of Criminal Procedure (CrPC) extends plenary powers to the High
Courts to deal with any form of criminal matters. But whether these powers percolate down to
the magistrates courts is a question because time and again these courts are unsure as to
whether they can assume these powers to themselves to adjudicate criminal cases within their
prescribed jurisdiction. The project is based mainly on the analyses of judgments both in favour
and against extending the inherent powers to the subordinate judiciary dealing with criminal
matters. The subordinate civil courts can pass orders under Section 151 of the Code of Civil
Procedure (CPC), why can’t the magistrates courts pass orders invoking Section 482 of CrPC.
The project purports that the Indian criminal justice system will be greatly served if the
inherent powers granted to the High Courts under Section 482 of CrPC are extended to the
subordinate judiciary. The methodology adopted in this paper is doctrinal and the method
employed (to reach at conclusive findings) is analytical.

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Section 482

Section 482 CrPC lays down, “Saving of inherent powers of High Court. 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.”

The language of provision shows it is an enabling provision, declaring for the sake of clarity that
High Court‟s power is not affected and that as superior Court it has power of interference for
meeting the ends of Justice. Nowhere is there any suggestion for exclusion of the Magistrate‟s
power to invoke the provisions of Section 482.

WHY THE NEED FOR SECTION 482 CR.P.C?

The powers of the High Court U/s 482 Cr.P.C are partly administrative and partly judicial. The
section was added by the Code of Criminal Procedure (Amendment) Act of 1923, as the High
Courts were unable to render complete justice even if in a given case the illegality was palpable
and apparent. The Hon'ble Supreme Court in State of Karnataka v. Muniswami– AIR 1977 SC
1489, held that the section envisages 3 circumstances in which the inherent jurisdiction may be
exercised, namely, "to give effect to an order under CrPC, to prevent abuse of the process of
the court, and to secure the ends of justice".

The Hon'ble Allahabad High Court went on to state that, "The section is a sort of reminder to the
High Courts that they are not merely courts in law, but also courts of justice and possess
inherent powers to remove injustice". The inherent power of the High Court is an inalienable
attribute of the position it holds with respect to the courts subordinate to it. They are necessarily
judicial when they are exercisable with respect to a judicial order and for securing the ends of
justice. The jurisdiction under section 482 is discretionary, therefore, the high court may refuse
to exercise the discretion if a party has not approached it with clean hands.

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Defining inherent powers
In a general sense, inherent powers are those that permanently exist in a particular authority
by virtue of its very existence without being derived from any other authority. Different law
dictionaries and Judges have defined the term inherent powers as follows:

(a) Black‟s Law Dictionary defines „inherent powers‟ as “Existing in something as a permanent,
essential, or characteristic attribute.”

(b) Webster‟s New World Law Dictionary defines it as “A power that must be deemed to exist
in order for a particular responsibility to be carried out.”

The idea of inherent powers is not new to the Indian legal system, for the first time it figured as
Section 151 of CPC. So far as criminal procedural law is concerned, prior to 1923, there was no
provision dealing with inherent powers or any such power in CrPC and in 1923 this provision
was added under Section 561A of CrPC, 1898, which later became Section 482 under CrPC,
1973.

The Hon‟ble Privy Council in Jai Berham’s case held, “every Court exists to do real and
substantial justice or to prevent abuse of its own process and hence, possesses inherent power
to achieve these ends, where the code is silent on any matter.” 6 Thus, prior to insertion of
Section 482 CrPC, that is before amendment when earlier identical provision was in force as
under Section 561A CrPC, the Privy Council interpreted in favour of inherent powers for every
Court including that of the Magistrates.

Administering justice is the main objective of courts and while so doing they have to have
powers enabling them to pass necessary orders for the ends of justice even when the statute
fails to provide for the same. Speedy trials aid the administration of justice and for avoiding
delay it is necessary that the grassroots courts are empowered to deal with exigencies by way
of exercising inherent powers; if their authority is limited to the literal words of a statute, their
ability to cater to justice stands retarded. The doctrine of inherent judicial power licenses the
courts to take necessary actions to fulfil their statutory and constitutional functions even when

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such actions are not specifically authorised by either constitutional text or by express provisions
in a statute.

The Two Contradictory Approaches

There exists a contrary view that the Magistrates do not enjoy any inherent powers for the
simple reason that Section 482 CrPC does not confer or reserve any such power directly or
expressly on the Magistrates.1

The following are a few judgments that indicate that Magistrates do not enjoy inherent
powers under Section 482 of CrPC.

(1) In 1977, the Hon‟ble Supreme Court in Bindeswari Prasad’s Case held, “Even if Magistrate
had any jurisdiction to recall the 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 561A 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
complaint”.2

1
A. S. Ganraya v S. N. Thakur AIR1986 SC 1440
2
8 Bindeshwari Prasad Singh v Kali Singh AIR 1977 SC 2432

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(2) In 2004, a similar view was expressed by the Supreme Court in Adalat Prasad v Rooplal
Jindal where Court held that, “the observation of this Court in the case of Mathew 3 that for
recalling an order of issuance of process erroneously, no specific provision of law is
required would run counter to the Scheme of the Code which has not provided for review
and prohibits interference at interlocutory stages. Therefore, we are of the opinion, that
the view of this Court in Mathew's case (supra) that no specific provision is required for
recalling an erroneous order, amounting to one without jurisdiction, does not lay down the
correct law.”
(3) In 2009, in Mithabhai Pashabhai Patel v. State of Gujarat,4 the Supreme Court held, “The
courts subordinate to the High Court even do not have any inherent power under Section
482 of the Code of Criminal Procedure or otherwise. The pre- cognisance jurisdiction to
remand vested in the subordinate courts, therefore, must be exercised within the four-
corners of the Code.”

The following are a few judgments that indicate that Magistrates do enjoy inherent
powers under Section 482 of CrPC

(1) In 1969 in Pritam Singh v State, the Allahabad High Court resorted to a judicious, as distinct
from hyper technical, approach and interpreted this provision to mean that subordinate
Criminal Courts have inherent powers and held that, “in case of an order which is a nullity
there is no reason why the court, having discovered the mistake be not allowed to correct it
and be compelled to adapt the lengthy process of referring the case to the High Court. In
this case Court made a distinction between an erroneous order and an order which is a
nullity and arrived at the finding that in case of erroneous order the subordinate court has
no inherent power to rectify the mistake.”5

3
1992 AIR 2206; 1991 SCR Supl. (2) 364
4
(2009) 6 SCC 332
5
Pritam Singh v State AIR1969 ALL 513

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(2) In 1992 Supreme Court in the case of K M Mathews recognised the inherent powers of
Magistrate and held, “Magistrate may drop the proceedings if he is satisfied on
reconsideration of the complaint that there is no offence for which the accused could be
tried. It is his judicial discretion. No specific provision required for the Magistrate to drop
the proceedings or rescind the process” and that, “to ask the accused to undergo the trial
of the case merely on the ground of the issue of process would be oppressive. No person
should be tried without a prima facie case.” 6 Thus Supreme Court interpreted the provision
and held that subordinate criminal court has inherent powers to drop the proceedings
against an accused when no prima facie case could be made out against him.

(3) ) In 2008, a similar view was expressed by the Supreme Court in Sakiri Vasu v. State of Uttar
Pradesh and Others.7 The Court held, “It is well-settled that when a power is given to an
authority to do something it includes such incidental or implied powers which would ensure
the proper doing of that thing. In other words, when any power is expressly granted by the
statute, there is impliedly included in the grant, even without special mention, every power
and every control the denial of which would render the grant itself ineffective. Thus where
an Act confers jurisdiction it impliedly also grants the power of doing all such acts or
employ such means as are essentially necessary to its execution.” The above discussion
shows that the Supreme Court and Various High Courts have held different ,at times even
contradictory, opinions and views as regards the question whether sub-ordinate Criminal
Courts have inherent powers or not

Powers of High court

Inherent powers u/s 482 of Cr.P.C. include powers to quash FIR, investigation or any
criminal proceedings pending before the High Court or any Courts subordinate to it and are
of wide magnitude and ramification. Such powers can be exercised to secure ends of justice,
prevent abuse of the process of any court and to make such orders as may be necessary to

6
1991 SCR Supl. (2) 364.
7
(2008) 2 SCC 409.

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give effect to any order under this Code, depending upon the facts of a given case. Court can
always take note of any miscarriage of justice and prevent the same by exercising its powers
u/s 482 of Cr.P.C. These powers are neither limited nor curtailed by any other provisions of
the Code. However, such inherent powers are to be exercised sparingly and with caution.

It is well settled that the inherent powers under section 482 can be exercised only when no
other remedy is available to the litigant and NOT where a specific remedy is provided by the
statute. If an effective alternative remedy is available, the High Court will not exercise its
powers under this section, especially when the applicant may not have availed of that remedy

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 Conclusion

The first level of court system in India, i.e., the primary structure of the subordinate
judiciary, consists of two streams- Civil & Criminal. These two
faculties/streams/branches are manned by Civil Judges and Judicial Magistrates,
respectively.
Law recognises, grants and saves the inherent powers of the Civil Judge, which is the
lowermost Judge in the structure of civil adjudication in terms of jurisdiction as well as
seniority/experience. It is the first filing Court for the minimum pecuniary jurisdiction
and anyone who qualifies to be a Judge at this level is placed as Civil Judge or as a
Judicial Magistrate in his/her first posting. So the junior-most Civil Judge has inherent
powers as under Section 151 of Civil Procedure Code. But another officer of the same
qualification and seniority who is placed as a Judicial Magistrate does not have any
inherent powers as per Section 482 CrPC. Even the Sessions Judge or Assistant Sessions
Judge or Additional Sessions Judge or Chief Sessions Judge of a District, who are
entrusted with trial and adjudication of offences punishable by death sentence are also
not having any inherent powers as under Section 482 CrPC. Thus, the argument that
inherent powers are not granted to subordinate Criminal Courts as it entails lot of
maturity to handle also stands no ground.
Moreover, just as in case of bail matters and death sentences every single order of a
subordinate Criminal Court is open to scrutiny of the higher and the highest Court of the
land and orders passed by virtue of inherent powers will be no different. And if gravity
of the matter concerned is the issue, the law maker can very well demarcate the areas
and matters of lesser gravity where such powers can be exercised by the Magistrates
and the areas where they can be exercised by the Sessions Judge.
It is real hardship for the common litigant to travel all the way to a High Court for
remedy in the case of a minor mistake such as issuing process. In a study, it has been

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 found that geographical proximity of the litigant with the court is a significant factor in
deciding whether he can actually avail of the remedy or not.8 This study, interestingly,
reveals that there is proportionately increased likelihood of a litigant availing a remedy
if it is available at a geographically nearer place and to make the population of more
than 1.3 billion to approach 24 High Courts raises obvious accessibility issues and the
process involves lot of man hours and expenses also which in turn makes it an
economically expensive exercise as well.

8
Nick Robinson, The Indian Supreme Court in numbers (Azim Premji University LGDI Working Paper 2012-2013),
accessed 12 March 2018; See also Nick Robinson, Quantitative Analysis of Indian Supreme Court‟s Workload,
(2013) 10(3) Journal of Empirical Legal Studies 573-601.

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