The court established that inherent powers can be invoked only when no statutory remedy exists, and the availability of such a remedy is a crucial consideration.

Hon’ble Subhash Vidyarthi J.

1. Heard Sri Abhyudaya Mishra, learned counsel for the petitioner and Sri Alok Kumar Tiwari, the learned AGA for the State.

2. By means of the instant writ petition filed under 528 of the Bharatiya Nagrik Suraksha Sanhita (hereinafter referred to as BNSS), the petitioner has challenged the validity of an order dated 28.08.2024 passed by learned Special Judge, P.O.C.S.O. Act/Additional Sessions Judge in Criminal Misc. Case No.360 of 2024 whereby an application under Section 175(3) of BNSS [comparable to Section 156 (3) of Cr.P.C.] has been rejected by the trial Court.

3. Sri Alok Kumar Tiwari, the learned A.G.A. has raised a preliminary objection that the petitioner has got a statutory remedy of filing a revision against the aforesaid order and, therefore, the inherent powers of this Court cannot be invoked by the applicant. He has relied upon a decision of the Hon’ble Supreme Court in the case of Vipin Sahni & Anr. v. Central Bureau of Investigation; 2024 SCC OnLine SC 511 wherein the Hon’ble Supreme Court has held that the where a specific remedy of filing a revision was available, a petition under Section 482 Cr.P.C. could not be filed.

4. Replying to the aforesaid preliminary objection of the learned A.G.A., Sri Abhyudaya Mishra, learned counsel for the petitioner has relied upon a judgment of the Hon’ble Supreme Court in the case of Prabhu Chawla v. State of Rajasthan & Anr.; (2016) 16 SCC 30 , wherein it has been held that the availability of statutory remedy of revision is not an absolute bar against maintainability of an application under Section 482 Cr.P.C.

5. Section 528 of BNSS provides as follows: -

“528. Nothing in this Sanhita 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 Sanhita, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

6. The aforesaid provision is in pari materia to the provision contained in Section 482 Cr.P.C., which was 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.”

7. Therefore, the law as explained through various precedents regarding scope of exercise of the inherent power under Section 482 would also apply to Section 528 BNSS.

8. Vipin Sahni (Supra) relies upon an earlier decision in the case of Mohit versus State of U.P.: (2013) 7 SCC 789 , wherein it was held that: -

“28. So far as the inherent power of the High Court as contained in Section 482 CrPC is concerned, the law in this regard is set at rest by this Court in a catena of decisions. However, we would like to reiterate that when an order, not interlocutory in nature, can be assailed in the High Court in revisional jurisdiction, then there should be a bar in invoking the inherent jurisdiction of the High Court. In other words, inherent power of the Court can be exercised when there is no remedy provided in the Code of Criminal Procedure for redressal of the grievance. It is well settled that the inherent power of the Court can ordinarily be exercised when there is no express provision in the Code under which order impugned can be challenged.”

9. However, in Prabhu Chawla v. State of Rajasthan & Anr.; (2016) 16 SCC 30 , a three Judge Bench of the Hon’ble Supreme Court overruled the decision in Mohit (Supra) by stating that “the Division Bench, particularly in para 28, in Mohit in respect of inherent power of the High Court in Section 482 CrPC does not state the law correctly. We record our respectful disagreement.” The Hon’ble Supreme Court further held that: - “6. … A fortiori, there can be no total ban on the exercise of such wholesome jurisdiction where, in the words of Krishna Iyer, J. “a