The inherent powers of the High Court under Section 482, Cr.P.C., cannot be invoked to override an express provision of the Code.

This is a petition filed under Sec. 482, Cr. P. C. for a review of this Court's decision rendered in Criminal Appeal No. 25/75.*

*See 1977 Cri LJ NOC 71 (Goa).

2. The matter arises in the following manner :-

The applicant Dr. J. M. Almeida, was placed on trial for offences said to have been committed by him under Section 161, I. P. C. and Sec. 5 (2) r/w. Sec. 5 (1) (d) of the Prevention of Corruption Act, 1947. He was acquitted of the aforesaid charges. The State came in appeal against the said order of acquittal to this Court. The appeal memo dated 5th Nov. 1975 that was presented to the court was signed by Joaquim Dias as Government Advocate. This Court granted special leave to appeal on 18-10-1975. After hearing the appeal on merits, this Court allowed it on 30th August, 1976 setting aside the order of acquittal and remanding the case to the Trial Court for disposal in the light of the observations made therein. As Mr. Joaquim Dias had not been appointed as Public Prosecutor for this Court either on the day the appeal petition was presented or on the day special leave was accorded to the Appellant, the disposal of the appeal by this Court was a nullity and without jurisdiction, not having been preferred by the competent person. Hence the application for review.

3. The State having raised a preliminary objection regarding maintainability of this petition of review, it is necessary to decide first whether the petition is maintainable under Sec. 482, Cr. P. C., 1973.

4. The learned advocate for the petitioner relying on two decisions of Allahabad High Court reported in AIR 1950 All 652 and AIR 1951 All 441, which arose under the old Code of Criminal Procedure, has argued that under Sec. 482 of the new Code, this Court has powers to review its judgment As against this, on behalf of the State, reliance has been placed on two decisions, one reported in AIR 1962 All 193 and the other reported in AIR 1965 Mys 224.

5. Section 482 of the new Code reads as follows :-

"482. 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."

A persual of the provision contained in the aforesaid section, makes it clear that this section does not confer new powers but merely safeguards or preserves the existing inherent powers. It was so held by the Privy Council in Emperor v. Nazir Ahmed, (1944) 71 Ind App 203. To the same effect are the observations of the Supreme Court in Talab Haji Hussain v. Madhukar Purshottam, AIR 1956 SC 376. It further follows that this inherent power cannot be invoked where another remedy is available and also that the powers so exercised cannot be made to override any express provision of law. Section 393, Cr. P. C. (corresponding to Section 430 of the old Code) speaks about finality of judgments and orders on Appeal. Thus the said section will apply in full force. There is no provision in the Cr. P. C. empowering the Court to review its appellate judgment or order. The question is whether S. 482 can therefore override an express provision of the Code by inventing a new category of inherent jurisdiction. The Allahabad High Court in the case of Sadhu Singh v. State, AIR 1962 All 193 seems to have taken the view that S. 561-A cannot override the express provision of the Code. This case came up for consideration in a later case of the same High Court in Mahesh v. State of U. P., 1971 Cri LJ 1674 (FB). Reference to Sadhu Singh's case is to be found in paras 1, 5, 7, 36, 57 and 67 of the judgment under reference. It may be mentioned here that to the Full Bench constituted to decide the case of Mahesh (supra) the correctness of the Full Bench decision in Raj Narain v. State (AIR 1959 All 315 (F)) and the Division Bench decision in Sadhu Singh v. State (AIR 1962 All 193) had b