IMPORTANT POINT
An application u/s 482 Cr. P.C. was maintainable though a person had availed remedy a revision u/s 399 Cr. P.C. but parameters of Section 482 were to be kept in view.

JUDGMENT

Dipak Misra, J. - The question of maintainability of an application under Section 482 of the Code of Criminal Procedure, 1973 (in short, 'the Code'), after disposal of the revision at the level of the Sessions Judge has arisen again like a mythical phoenix and that being the preliminary objection by Sri Debasis Panda, learned counsel for opposite party No.1, it was to be dealt with before the petitioner is allowed to cross the threshold to advance his contentions in regard to the merits of the case.

2. The preliminary objection of Sri Panda is that challenging the order dated 26-7-1994 passed by the learned Judicial Magistrate, First Class, Bhadrak, in I.C.C. Case No. 60 of 1993 whereby he refused to entertain the application filed under Section 219 of the Code, the accused persons had preferred Criminal Revision No. 40 of 1994 before the Additional Sessions Judge, Bhadrak, and having lost in the said revision, they are debarred to invoke the inherent jurisdiction of this Court as the application at their instance is not maintainable. In support of his submission, he has placed reliance on the decisions of the Apex Court in Dharampal and others. v. Smt. Ramshri and others1, and Deepti alias Arati Rai v. Akhil Rai and others2.

3. Before I proceed to deal with the contention raised by Shri Panda and the answer thereto by the learned counsel for the petitioner Shri D.P. Dhal, it is relevant to state here that two applications were taken up together with regard to maintainability and I have heard the learned counsel for the parties at length. In Panchanan Mohanty v. State of Orissa & anothe3, disposed of by me today, Shri Samir Kumar Misra, the learned counsel for the petitioner therein has advanced his arguments in regard to the maintainability of such an application.

4. Shri Panda has laid immense emphasis on the ratio of Dharampal case4. In paragraph 4 of the judgment in the said case, the Apex Court held as follows:

The question that falls for our consideration now is whether the High Court could have utilised the powers under Section 482 of the Code and entertained a second revision-application at the instance of the 1st respondent. Admittedly the 1st respondent had preferred a Criminal Application being Cr. R. No. 180/78 to the Sessions Court against the order passed by the Magistrate on 17th October, 1978 withdrawing the attachment, The Sessions Judge had dismissed the said application on 14th May, 1979. Section 397(3) bars a second, revision application by the same party. It is now well settled that the inherent power under Section 482 of the Code can-not be utilised for exercising powers which are expressly barred by the Code. Hence the High Court had clearly erred in entertaining the second revision at the- instance of 1st respondent. On this short ground itself, the impugned order Of the High Court can 'be set aside."

After this judgment of the Apex Court, this Court had the occasion to deal with The preliminary objection raised by parties challenging entertain ability of an application preferred under Section 482 of the Code.

The problem arose in the case of Iswar Chandra Naik v. Smt. Allahadini Sahu (Naik and another5. This Court in paragraph 4 of the judgment stated thus:

"4. In view of the rival contentions at the Bar, the first question that arises for consideration is whether a statutory bar under Section 397(2) of the Code for entertaining a second revision at the instance of the petitioner would operate as a bar for exercise of inherent power of this Court under Section 482? Mr. Pujari in this connection relies upon the decision of the Supreme Court in the case of Dharampal and others v. Smt. Ramshri and others (supra), which supports Mr. Pujari's contention fully. In the aforesaid case, their Lordships of the Supreme Court held:

It is now well settled that the inherent powers under Section 482 of the Code cannot be utilised for exercising powers, which are expressly barred by the Code. Hence the Hi