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2019 Supreme(P&H) 1598
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Rajbir Sehrawat
CRM-M-20457 of 2019 (O&M)
Raj Rani & Ors.
v.
State of Punjab & Ors.
{Decided on 06/05/2019}
Protection of Life and Liberty--Petition under S.482 CrPC is not maintainable--Remedy lies in invoking Writ Jurisdiction
Inherent Powers--Pendency of some proceedings under the Code or already initiated statutory action under CrPC is a ‘sine qua non’ for invoking powers of High Court - Inherent Powers--S.482 CrPC cannot be invoked for ordering initiation of new action by any authority under CrPC, by passing innocuous and ambiguous orders, like the order for deciding representation by police authorities
Headnote:
(A) Criminal Procedure Code, 1973, S.482--Inherent Powers--Protection of life and liberty--Petition under S.482 CrPC is not maintainable--Remedy lies in invoking Writ Jurisdiction--Constitution of India, Art.226.
the right to life and liberty is a fundamental rights of the citizen. This right is contained in Part III of the Constitution of India. For enforcement of fundamental rights, the Constitution of India has made a separate provision under Article 226 of the Constitution of India, as well as under Article 32 of the Constitution. Hence, the petitioners have got direct and more efficacious remedy, by way of filing of a civil writ petition for enforcement of their fundamental rights. Since, there is direct and more effective remedy available to the petitioners, hence the present petition is not maintainable under Section 482 Cr.P.C. (Para 15)
(B) Criminal Procedure Code, 1973, S.482--Inherent Power--When can be exercised, discussed--Held;
(i) power under Section 482 Cr.P.C can be exercised, primarily, only when necessary for giving effect to any order already passed by Courts under any provisions of Cr.P.C or to prevent abuse of the process of the Court against somebody--Both these situations contemplate a perspective where the proceedings under the Code of Criminal Procedure has already been initiated and reached the stage where any Court is seized with the matter under some provision of Cr.P.C.--If no proceedings are pending before any Court or adjudicating authority or no statutory order is passed by some authority under provisions of CrPC., then Section 482 Cr.P.C cannot be invoked on the ground of ‘giving effect to any order under this Code’ or on the ground of ‘preventing abuse of process of any Court’. (Para 7)
(ii) The phrase of ‘otherwise to secure the ends of justice’ cannot be invoked seeking initiation of any proceeding, taking decision on a representation or for seeking any fresh action on the part of the police, like ensuring protection to life and liberty of a person--The pendency of some proceedings under the Code or already initiated statutory action under CrPC is a ‘sine qua non’ for invoking powers of High Court under this phrase of Section 482 Cr.P.C as well. (Para 8)
(C) Criminal Procedure Code, 1973, S.482--Inherent Power--S.482 CrPC cannot be invoked for ordering initiation of new action by any authority under CrPC, by passing innocuous and ambiguous orders, like the order for deciding representation by police authorities. (Para 9)
However, if the police authority have not taken any statutory action on grievance or complaint of a person, then such inaction of the police authority is, at the best, an administrative inaction of an administrative authority. Against such inaction or failure to discharge any statutory duty, remedy is available by way of seeking a writ of mandamus. Needless to say that the police department, like any other department of the government is only an administrative division of the government. Unless the police starts exercising its statutory function under some provision of Code or any other criminal law, all its actions or omissions are only administrative actions or inaction’s, purely civil in nature. Therefore, appropriate remedy against such action or inaction is seeking a writ of mandamus under Article 226 of the Constitution of India. (Para 13)
JUDGMENT
Mr. Rajbir Sehrawat, J. (Oral):- Prayer in the present petition is for protection of life, liberty and property of the petitioner, at the hands of private respondent No.4 and his companions.
2. The facts as detailed in the petition are that petitioner No.1 is the widow of son of respondent No.4 and petitioner No.2 is his grandson. It is pleaded by them that they are the owners in possession of house No.33, J.P.Nagar, Patiala Gate, Sangrur. This house was owned by the deceasedhusband of petitioner No.1. But after the death of the husband of petitioner No.1 the said house had come in the ownership of the present petitioners.
3. However, since the father-in-law of petitioner No.1 i.e. respondent No.4 has started living with some other lady, therefore, he intends to dispose of this property by dispossessing the petitioners of the same. In the process, respondent No.4 has gone to the extent of threatening the life and liberty of the petitioners. They had approached the police with their complaint and with a prayer that their life and liberty be protected. However, the police have not taken any action. Hence, they have approached this Court, for protection of right to their life and liberty, by filing the present petition under Section 482 Cr.P.C.
4. Heard, the counsel for the petitioners and perused the case file.
5. Since the present petition has been filed under Section 482 Cr.P.C, it would be appropriate to have reference to Section 482 Cr.P.C., which reads as under:-
“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.”
6. A bare perusal of Section 482 Cr.P.C shows that this Section is not any enabling provision conferring any independent powers upon the High Court. Rather this Section only clarifies that the inherent powers of High Court are preserved, but with a clarification as to when this power can be exercised. As per language of this Section, power under Section can be invoked to give effect to the orders passed under the code or to prevent the abuse of the process of the Court. However, there is third situation also, as contemplated under Section 482 Cr.P.C., which is that the High Court can pass order to secure the ends of justice.
7. Therefore, it is clear that the power under Section 482 Cr.P.C can be exercised, primarily, only when necessary for giving effect to any order already passed by Courts under any provisions of Cr.P.C or to prevent abuse of the process of the Court against somebody. Both these situations contemplate a perspective where the proceedings under the Code of Criminal Procedure has already been initiated and reached the stage where any Court is seized with the matter under some provision of Cr.P.C. If no proceedings are pending before any Court or adjudicating authority or no statutory order is passed by some authority under provisions of Cr.P.C., then Section 482 Cr.P.C cannot be invoked on the ground of ‘giving effect to any order under this Code’ or on the ground of ‘preventing abuse of process of any Court’. When a petition is filed seeking protection to ‘life and liberty’ or seeking a decision on some representation, which might have been filed before the police authorities, the petitioner does not seek giving effect to any order passed under this Code or preventing abuse of the process of the Court. Therefore, by any means, a petition seeking ‘protection to life and liberty’ does not fall in any of the above-said two situations. However, if the proceedings have otherwise been initiated by any Court or any statutory authority under the Code and a person has any grievance against such order or proceedings, other than regarding the protection to life and liberty, he can avail the remedies provided under the Code, and if no rem
