Upgrade to Municipal corporation = Section 8-AA(1) of the Act -under Section 3(2) of the Uttar Pradesh Municipal Corporations Act, 1959 (for short ‘the Act’) as applicable in Uttarakhand read with Article 243Q(2) of the Constitution = Principal Secretary Urban Development Department, Government of Uttarakhand has provided an opportunity of hearing to the objectors on their respective objections on 16.07.2011 from 11.00 a.m. to 3.00 p.m. at Kumbh Fair Controlling House, Haridwar and amongst the objectors there were several Municipal Councilors of Haridwar Municipality, namely Dinesh Joshi, Rakesh Prajapati, Yashoda Devi, Leela Devi, Ashok Sharma, Jagdhir Singh, Nikhil Mehta, Idris Ansari, Satya Narayan, Karuna Sharma, Sanjay Sharma, Radhey Krishna, Prabha Ghai and Ram Ahuja. Hence, the appellant, who was the Chairman of the Municipal Council, Haridwar could have also participated in the hearing in support of his objections. We cannot, therefore, find any infirmity in the impugned judgment of the Division Bench of the High Court that an opportunity of hearing was actually given to all persons likely to be affected by the two notifications dated 21.07.2011. 13. At the time of hearing of this appeal, we were inclined to consider the other contention of Mr. Hansaria that the State Government must form an opinion that until the due constitution of the Municipal Corporation for an area, “it is expedient” to dissolve the Municipal Council from a specified date and to direct that all powers, functions and duties of the Corporation shall as from the specified date, be vested in and be exercised, performed and discharged by the Administrator appointed by the State Government in view of the language of sub-section (1) of Section 8-AA of the Act. But we find that this ground was not raised in the Writ Petition before the High Court nor raised in the special leave petition before this Court. We further find that pursuant to the two notifications dated 21.07.2011, the elections to the Municipal Corporation have been notified to be held and completed by 30.04.2013. Hence, even if the appellant succeeds on this point, we cannot direct restoration of the Haridwar Municipality after the constitution of the Municipal Corporation, Haridwar. For these reasons, we refrain from considering this question in this appeal and leave this question open to be decided in some other appropriate case.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40467
Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 4835 OF 2013
(Arising out of S.L.P. (C) No. 1889 of 2012)
Kamal Jora … Appellant
Versus
State of Uttarakhand & Anr. …
Respondents
J U D G M E N T
A. K. PATNAIK, J.
Leave granted.
2. This is an appeal by way of special leave under
Article 136 of the Constitution against the judgment dated
21.12.2011 of the Division Bench of the Uttarakhand High
Court in Special Appeal No.289 of 2011.
Facts of the case
3. The relevant facts very briefly are that the appellant
was elected as the Chairman of the Municipal Council,
Page 2
2
Haridwar, in May, 2008.
When he was functioning as the
Chairman of the Municipal Council, Haridwar a notification
was issued on 20.05.2011 by the Government of
Uttarakhand notifying that the Governor of Uttarakhand in
exercise of powers under Section 3(2) of the Uttar Pradesh
Municipal Corporations Act, 1959 (for short ‘the Act’) as
applicable in Uttarakhand read with Article 243Q(2) of the
Constitution and Section 8-AA of the Act has dissolved the
Municipal Council, Haridwar, and appointed the District
Magistrate, Haridwar, as Administrator for administering
the area of the Municipal Corporation, Haridwar.
The
appellant filed Writ Petition No.1031 of 2011 on
20.05.2011 in the High Court of Uttarakhand, challenging
the aforesaid notification mainly on the ground that no
opportunity of hearing was given to the Municipal Council,
Haridwar before the notification was issued and the
learned Single Judge of the High Court who heard the writ
petition held in his order dated 09.06.2011 that the
dissolution of the Municipal Council, Haridwar was done
and the Administrator was appointed to administer the
areas of Municipal Corporation, Haridwar under Section 8-
Page 3
3
AA of the Act without affording any opportunity of hearing
or a show cause to the Municipal Council and hence the
notification dated 20.05.2011 was in clear violation of the
Constitution of India. 
By the order dated 09.06.2011, the
learned Single Judge, therefore, allowed the writ petition
and quashed the notification dated 20.05.2011 and
directed the District Magistrate, Haridwar to handover the
charge forthwith to the elected representatives of the
Haridwar Municipality.
4. Aggrieved, the State of Uttarakhand filed Special
Appeal No.104 of 2011 before the Division Bench of the
High Court contending that the upgradation of the
Municipal Council, Haridwar to Municipal Corporation,
Haridwar, was done by the State Government in
accordance with the mandate in Article 243Q of the
Constitution and the dissolution of the Municipal Council,
Haridwar was merely a consequence of such an
upgradation and hence no show cause or opportunity of
hearing was required to be given to the Municipal Council,
Haridwar before the dissolution and before appointment of
an Administrator to administer the areas of the Municipal
Page 4
4
Corporation, Haridwar.
The Division Bench of the High
Court in its judgment dated 23.06.2011, however, held
that Section 8-AA of the Act does not provide for
automatic dissolution of the Municipal Council on
upgradation to a Municipal Corporation and since
automatic dissolution of a Municipal Council has not been
provided in the law, an opportunity of hearing should have
been given to the persons likely to be affected by
dissolution of the Municipal Council. The Division Bench of
the High Court, therefore, upheld the order dated
23.06.2011 of the learned Single Judge and dismissed the
appeal 
but on the prayer of the learned Advocate General
stayed the operation of the order dated 23.06.2011 of the
learned Single Judge for a period of three weeks.
5. Soon after the judgment dated 23.06.2011 of the
Division Bench of the High Court, the Government of
Uttarakhand issued a public notice dated 29.06.2011
stating therein that in the opinion of the State
Government, the small urban area of the Municipal
Council, Haridwar needs to be converted into a larger
urban area and consequently to Municipal Corporation,
Page 5
5
Haridwar. By the public notice dated 29.06.2011, the
Chairman and the Councilors of Municipal Council,
Haridwar and the entire public residing in the urban area
of the Municipal Council, Haridwar were invited to give
their objections and suggestions.
The public notice dated
29.06.2011 also stated that on 13.07.2011, a hearing
would be conducted by the Principal Secretary, Urban
Department, Government of Uttarakhand between 1.30
p.m. to 4.00 p.m in which persons will be given an
opportunity of personal hearing on their objections and
suggestions and only thereafter the final decision will be
taken by the State Government. 
By a corrigendum dated
08.07.2011 issued by the State Government, the date of
hearing was altered to 16.07.2011. The appellant filed his
objections before the Director of Urban Development in
July, 2011 and also stated in his objection that he be given
a personal hearing on his objections. 
Thereafter, on
21.07.2011, the Government of Uttarakhand issued two
notifications.
 In one notification dated 21.07.2011, it was
stated that the Governor was pleased to notify for overall
development of Haridwar city the conversion of existing
Page 6
6
smaller urban area into a larger urban area in exercise of
powers under Section 3(2) of the Act read with Article
243Q(2) of the Constitution and to further notify that the
area included in the larger urban area would be the total
of the area of Municipal Corporation, Haridwar.
 In the
other notification dated 21.07.2011, it was stated that the
Governor has directed under Section 8-AA(1) of the Act
that the existing Municipal Council, Haridwar would stand
dissolved from the date of issuance of the notification and
the District Magistrate, Haridwar be appointed the
Administrator for the administration of the larger urban
area of the Municipal Corporation, Haridwar.
6. Aggrieved by these two notifications dated
21.07.2011, the appellant again filed Writ Petition (C)
No.1533 of 2011, contending that no hearing was granted
to the Municipal Council, Haridwar before the Municipal
Council was dissolved and the Administrator was
appointed for the larger urban area of the Municipal
Corporation and hence the two notifications were liable to
be quashed. The learned Single Judge by his order dated
15.12.2011 allowed the writ petition and quashed the two
Page 7
7
notifications dated 21.07.2011.
Aggrieved, the State of
Uttarakhand and the District Magistrate, Haridwar filed
Special Appeal No.289 of 2011 before the Division Bench
of the High Court and the Division Bench of the High Court
held in the impugned judgment dated 21.12.2011 that an
opportunity of being heard was given to all persons who
were interested in the decision making process of the
Municipal Council, Haridwar. By the impugned judgment,
the Division Bench of the High Court therefore allowed the
appeal and set aside the order of the learned Single Judge
and dismissed the writ petition. Aggrieved, the appellant
has filed this appeal.
Contentions of the learned counsel for the parties:
7. Mr. Vijay Hansaria, learned counsel appearing for the
appellant, submitted that
under Article 243U(1) of the
Constitution and under Section 10-A of the U.P.
Municipalities Act, 1916, every Municipality has the right
to continue for a period of five years from the date of its
first meeting unless sooner dissolved under any law for
the time being in force.
He submitted that the proviso to
Article 243U(1) of the Constitution says that a Municipality
Page 8
8
shall be given a reasonable opportunity of being heard
before its dissolution.
 He submitted that the learned
Single Judge of the High Court in his judgment dated
09.06.2011 in Writ Petition No.1031 of 2011 and the
Division Bench of the High Court in its judgment dated
23.06.2011 in Special Appeal No.103 of 2011, therefore,
held that the Municipal Council, Haridwar, was entitled to
an opportunity of hearing before it was dissolved and
before the Administrator was appointed by the notification
dated 20.05.2011.
He submitted that after the judgment
of the Division Bench of the High Court on 23.06.2011, the
Government of Uttarakhand invited objections/suggestions
by a public notice dated 29.06.2011, but no hearing was
given to the Municipality and yet the Haridwar Municipality
was again dissolved and an Administrator was appointed
in its place by the impugned notification dated 21.07.2011
of the Government of Uttarakhand.
8. Mr. Hansaria submitted that it is a settled proposition
of law that if a statute conferring power on an authority to
take a decision having civil consequences does not
expressly prohibit a personal hearing before the decision
Page 9
9
is taken, the rule of fair play requires that an opportunity
of personal hearing is afforded to the persons likely to be
affected by the decision. In support of this proposition, he
cited the decisions 
in Mohinder Singh Gill & Anr. v. The
Chief Election Commissioner, New Delhi & Ors. [(1978) 1
SCC 405], S.L. Kapoor v. Jagmohan & Ors. [(1980) 4 SCC
379] and Swadeshi Cotton Mills v. Union of India [(1981) 1
SCC 664]. 
He submitted that Section 8-AA of the Act
which empowers the State Government to dissolve a
Municipal Council for the purpose of constituting a
Municipal Corporation in its place does not expressly
prohibit an opportunity of hearing to be given to the
Municipal Council before its dissolution and therefore a
personal hearing to the Municipal Council has to be
granted where the State Government is of the opinion that
the Municipal Council is to be dissolved for the purpose of
constituting a Municipal Corporation in its place.
9. Mr. Hansaria next submitted that it will be clear from
the language of sub-section (1) of Section 8-AA of the Act
that dissolution of a Municipal Council is to take place only
if the State Government is of the opinion that until the duePage 10
10
constitution of the Municipal Corporation for the larger
urban area, “it is expedient” to dissolve the Municipal
Council from a specified date and to direct that all powers,
functions and duties of the Corporation shall as from the
specified date, be vested in and be exercised, performed
and discharged by the Administrator. He submitted that
there is nothing in the notifications dated 21.07.2011 of
the State Government to show that the State Government
formed the opinion that it was expedient to dissolve the
Municipal Council and to appoint the Administrator.
10. In reply, Dr. Abhishek Atrey, learned counsel
appearing for the State of Uttarakhand, on the other hand,
submitted, relying on the counter affidavit filed on behalf
of respondents no. 1 and 2 as well as the order dated
19.07.2011 of the Government of Uttarakhand annexed to
the counter affidavit as Annexure-C-I, that the Division
Bench of the High Court has rightly held in the impugned
judgment that a personal hearing was granted by the
public notice dated 29.06.2011 to all concerned including
the Municipal Council, Haridwar. He cited the decision of
this Court in State of Maharashtra & Ors. v. JalgaonPage 11
11
Municipal Council & Ors. [(2003) 9 SCC 731] in which the
notification dated 16.10.2001, as amended by the
notification dated 15.11.2001, dissolving the Jalgaon
Municipal Council was held to satisfy the requirement of
the principles of natural justice. He further submitted that
in the judgment dated 26.02.2010 in Nagar Palika
Parishad & Ors. v. State of U.P. & Ors. (Writ Petition (C)
No.56954 of 2009) the Allahabad High Court has held that
dissolution of a Municipality of a smaller urban area for the
purpose of upgradation to Municipal Corporation of a
larger urban area cannot be termed as dissolution as
envisaged under Article 243U of the Constitution and the
proviso to Article 243U is not violated if no opportunity of
hearing is given to the Municipality before such
dissolution. He submitted that though Special Leave
Petition (C) No.13400 of 2010 was filed against the
aforesaid judgment dated 26.02.2010 of the Allahabad
High Court, this Court dismissed the Special Leave Petition
with costs by order dated 25.08.2010.
Findings of the CourtPage 12
12
11. We have considered the submissions of learned
counsel for the parties and we are of the opinion that the
earlier judgment of the Division Bench of the High Court
dated 23.06.2011 holding that an opportunity of hearing
must be given to persons likely to be affected by
dissolution of the Municipal Council, Haridwar though not
binding on this Court is binding on the parties in Special
Appeal No.104 of 2011 in which the aforesaid judgment
was rendered because of the principle of res judicata. The
State Government of Uttarakhand was the appellant in the
aforesaid Special Appeal No.104 of 2011 and it cannot
therefore now contend that a hearing was not required to
be granted to the Municipal Council, Haridwar, before it
issued the two notifications dated 21.07.2011 dissolving
the Haridwar Municipality and appointing an
Administrator.
12. Hence, the first question that we have to decide is
whether an opportunity of hearing was granted to the
Municipal Council, Haridwar before the two notifications
dated 21.7.2011 were issued dissolving the Haridwar
Municipality and appointing an administrator underPage 13
13
Section 8-AA of the Act. The public notice which was
issued on 29.06.2011 soon after the judgment dated
23.06.2011 of the Division Bench of the High Court in
Special Appeal No.104 of 2011 is extracted hereinbelow:
“Under Section 3 sub-section (2) of Uttar
Pradesh Municipal Corporation Act, 1959
(U.P. Act No.2 of 1959) (as applicable in
the State of Uttarakhand) read with
Article 243 U of Part 2, it is the
considered opinion of the State
Government that smaller Urban Area
Nagar Palika Parishad, Haridwar be
converted into a larger Urban Area and
consequently into a Municipal
Corporation, Haridwar.
In view of the above, the Chairman of
Nagar Palika Parishad, Haridwar, the
councilors of Nagar Palika Parishad,
Haridwar and the entire public who
ordinarily reside in the said area are
invited to give their objections and
suggestions. The written objections and
suggestions should reach the office of
Director, Department of Urban
Development, Uttarakhand 43/6, Mata
Mandir Marg Dharmpur, Dehradun by
11th July 2011. Any suggestion and
objection received after the said notified
date will not be accepted. On the
receipt of the written objections and
suggestions, a hearing would be done
on 13th July 2011 by Principal Secretary,
Urban Development Department,
Government of Uttarakhand in the office
of Director, Department of Urban
Development, Uttarakhand 43/6, MataPage 14
14
Mandir Marg, Dharmpur, Dehradun. The
time would be 1.30 P.M. to 4.00 P.M.
During the hearing the persons would
also be given an opportunity of personal
hearing. After receiving such objections
and suggestions and after considering
the same, the final decision to convert
the place into a larger Urban Area will
be taken.”
It will be clear from the aforesaid public notice dated
29.06.2011 issued by the Government of Uttarakhand that
the Chairman of the Haridwar Municipality, the Councilors
of Haridwar Municipality and the entire public who
ordinarily reside in the area were invited to give their
objections and suggestions. It will also be clear from the
public notice dated 29.06.2011 extracted above that on
receipt of the written objections and suggestions, a
hearing was to be conducted on 13th July 2011 by Principal
Secretary, Urban Development Department, Government
of Uttarakhand between 1.30 p.m. to 4.00 p.m. and during
the hearing the persons were to be given an opportunity
of personal hearing on the objections. By a subsequent
corrigendum the date of hearing was altered to
16.07.2011. We further find from paragraph 4 of the order
dated 19.07.2011 annexed to the counter affidavit filed on
Page 15
15
behalf of respondent Nos. 1 and 2 as Annexure C-I that the
Principal Secretary Urban Development Department,
Government of Uttarakhand has provided an opportunity
of hearing to the objectors on their respective objections
on 16.07.2011 from 11.00 a.m. to 3.00 p.m. at Kumbh Fair
Controlling House, Haridwar and amongst the objectors
there were several Municipal Councilors of Haridwar
Municipality, namely Dinesh Joshi, Rakesh Prajapati,
Yashoda Devi, Leela Devi, Ashok Sharma, Jagdhir Singh,
Nikhil Mehta, Idris Ansari, Satya Narayan, Karuna Sharma,
Sanjay Sharma, Radhey Krishna, Prabha Ghai and Ram
Ahuja. Hence, the appellant, who was the Chairman of the
Municipal Council, Haridwar could have also participated
in the hearing in support of his objections. We cannot,
therefore, find any infirmity in the impugned judgment of
the Division Bench of the High Court that an opportunity of
hearing was actually given to all persons likely to be
affected by the two notifications dated 21.07.2011.
13. At the time of hearing of this appeal, we were
inclined to consider the other contention of Mr. Hansaria
that the State Government must form an opinion that until
Page 16
16
the due constitution of the Municipal Corporation for an
area, “it is expedient” to dissolve the Municipal Council
from a specified date and to direct that all powers,
functions and duties of the Corporation shall as from the
specified date, be vested in and be exercised, performed
and discharged by the Administrator appointed by the
State Government in view of the language of sub-section
(1) of Section 8-AA of the Act. 
But we find that this ground
was not raised in the Writ Petition before the High Court
nor raised in the special leave petition before this Court.
We further find that pursuant to the two notifications
dated 21.07.2011, the elections to the Municipal
Corporation have been notified to be held and completed
by 30.04.2013. 
Hence, even if the appellant succeeds on
this point, we cannot direct restoration of the Haridwar
Municipality after the constitution of the Municipal
Corporation, Haridwar. 
For these reasons, we refrain from
considering this question in this appeal and leave this
question open to be decided in some other appropriate
case.
Page 17
17
14. In the result, we do not find any merit in this appeal
and we accordingly dismiss the same, but without costs. 
.……………………….J.
(A. K. Patnaik)
………………………..J.
(Gyan Sudha Misra)
New Delhi,
July 01, 2013. 

sale with condition to repurchase is not a mortgage = whether it is a mortgage by conditional sale or a sale with an option to repurchase ?. one should be guided by the terms of the document alone without much help from the case law. = No doubt the document is styled as a deed of conditional sale= What does the executant do under the document? He takes a sum of Rs. 5,000/- in cash. The particulars are (a) Rs 2,499/- i.e. Rs 899/- by mortgage of his house on 27-1-1944 and (b) Rs. 1,600 by a further mortgage on 31-5- 1947 totalling to Rs 2,499/-. Thereafter, an amount of Rs 2,501/- in cash was taken from the transferee. The purpose was to repay miscellaneous debts and domestic expenses and business. It has to be carefully noted that this amount of Rs 5,000/- was not taken as a loan at all. As rightly observed by the High Court, by executing this document the executant discharges all the prior debts and outstandings. Where, therefore, for a consideration of a sum of Rs 5,000/- with the conditional sale is executed, we are unable to see how the relationship of debtor and creditor can be forged in. In other words, by reading the documents as a whole, we are unable to conclude that there is a debt and the relationship between the parties is that of a debtor and a creditor. This is a vital point to determine the nature of the transaction.”= the document was not a mortgage by conditional sale, rather the document was transfer by way of sale with a condition to repurchase. =In the instant case, the alleged sale document was executed in the year 1967 transferring the suit property by way of sale subject to one stipulation/condition that on receiving the sale amount of Rs. 3,000/- within five years the land was to be returned to the plaintiff-vendor. It is also not in dispute that after transfer of the land the defendant- respondent No. 1 came in possession and used & enjoyed the suit property as an absolute owner. It was only after 11 years that the plaintiff-appellant filed the suit alleging that the suit property was mortgaged in favour of the defendant/respondent No.1 herein with a condition to reconvey the land. 20. In the aforesaid premises, we do not find any reason to interfere with the findings recorded by the first appellate court. As stated above, the High Court has rightly not interfered with the findings of fact recorded by the first appellate court. 21. For the aforesaid reasons, we do not find any merit in this appeal which is, accordingly, dismissed, but without any costs.

published in http://judis.nic.in/supremecourt/filename=40466
Page 1
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4833 OF 2013
(Arising out of Special Leave Petition (Civil) No.578 of 2005)
VANCHALABAI RAGHUNATH ITHAPE
(D) BY LR. Appellant(s)
VERSUS
SHANKARRAO BABURAO BHILARE
(D) BY LRS. AND OTHERS Respondent(s)
JUDGMENT
M.Y. EQBAL, J.
Delay condoned. Leave granted.
2. This appeal by special leave is directed against the
judgment and order dated 19.7.2004 passed by the High
Court of Judicature at Bombay in Second Appeal No.295 of
1988, whereby the second appeal filed by the plaintiffappellant was dismissed and the order of the first appellate
court was confirmed. The appellant is the legal heir of the
original plaintiff/widow who was admittedly the owner of thePage 2
suit property bearing Block No.126 of village Degaon
admeasuring 62 R.
3. The facts of the case can be summarized as under:
4. Plaintiff’s case is that a deed (Ex.31) was executed
by Vanchalabai Raghunath Ithape (the original plaintiff - now
deceased and represented through her legal representative)
in favour of defendant No.1 Shankarrao Baburao Bhilare (the
original defendant/respondent No. 1 herein and now
represented through his legal representatives) on 12.7.1967
for a consideration of Rs.3,000/-, by which the suit land
along with 4 annas share in the mango trees was transferred
to defendant No.1 and possession of the same was handed
over, with a specific stipulation to the effect that the land
was sold on the condition that after receiving Rs.3,000/- in
lump sum within 5 years before end of any Falgun month by
the defendant, the land was to be returned to the plaintiff.
The plaintiff’s case is that it was a mortgage transaction and
the land was to be returned by the original defendant after
receiving the said consideration of Rs.3,000/- within 5 years.
The plaintiff further alleged that the period of 5 years was
2Page 3
nominal as there was no condition that after 5 years the sale
would become final. According to the plaintiff, till 1978 the
defendant was agreeing to redeem the suit property, but
thereafter he started avoiding to do it. On 20.7.1979,
plaintiff issued a notice calling upon defendant to reconvey
the suit property after accepting the amount. Upon noncompliance, plaintiff filed a suit being RCS No.226 of 1979
for redemption of the suit property against defendant No.1
and his brothers/relatives as a suit for partition, which also
included the suit property, was stated to be pending
between them. However, only defendant No.1 contested the
suit by filing written statement contending that the
transaction in question (Exh.31) is not a mortgage
transaction, but was that of outright sale. He denied of
having any relationship of mortgagee and mortgagor
between him and the plaintiff. According to him, the plaintiff
had sold the suit property to him as per the said sale deed,
but only as a concession the period of 5 years was
mentioned in the deed to reconvey the said suit property
3Page 4
and since there was no repayment in 5 years no reconveyance could be claimed.
5. Considering the pleadings and evidence tendered
by the parties, the trial court opined that the suit land was
originally owned by the plaintiff and after execution of the
said deed, possession is with the defendant. On perusing
said Exhibit 31, the trial court found it in the nature of the
sale deed, but in the last paragraph of the said deed, there is
a mention that the said amount of Rs.3,000/- was to be
repaid by the plaintiff within the period of 5 years at the end
of Falgun, and that at that time the defendant was to accept
the said amount and to reconvey the suit land thereafter.
Considering the said recital coupled with the evidence of the
defendant and provisions of Section 58(c) of the Transfer of
Property Act, 1882, the trial court did not consider it to be a
sale transaction and held it to be a mortgage transaction by
conditional sale. The trial court also answered the issue
“whether defendant No.1 proved that time was the essence
of the said contract …” in negative. The suit of the plaintiff
for redemption was accordingly decreed by the trial court
4Page 5
declaring that the plaintiff is entitled to redeem the suit
property after paying the amount of Rs.3,000/- to the
defendant.
6. Aggrieved by aforesaid judgment and order, the
defendant preferred first appeal before the District Judge,
Satara, who, after hearing both the parties, allowed the
appeal holding that there was no relationship of debtor and
creditor between the parties nor it was it the case of the
plaintiff that the defendant was known to her before the
transaction and thus the transaction in question was an
absolute sale with a condition of repurchase, but the plaintiff
failed to get the land reconveyed within stipulated period.
7. The plaintiff took exception to the aforesaid
judgment by filing second appeal before the High Court
raising several contentions. The High Court dismissed the
second appeal mainly relying on the observations made by
the first appellate court that admittedly there was no
relationship of debtor and creditor between the parties nor
was it the case of the plaintiff that the defendant was known
to her before the transaction was settled and there was
5Page 6
nothing on record to show that the said observation was
incorrect and thus the document in question was of absolute
sale with condition of repurchase. The High Court held that
the findings recorded by the first appellate court were
neither perverse nor illegal and, therefore, no interference
was called for in the second appeal under Section 100 of the
Code of Civil Procedure.
8. We have heard Mr. Sushil Karanjkar, learned
counsel appearing on behalf of the appellant and Mr. Vinay
Navare, learned counsel appearing for legal representatives
of respondent No.1.
9. Admittedly, the plaintiff filed the suit claiming a decree
for redemption of the suit property. According to the
plaintiff, the suit land was mortgaged by her to the original
defendant for the mortgaged amount of Rs. 3,000/-; a period
of five years mentioned in the sale deed is nominal; and in
fact it was agreed between the plaintiff and the defendant
that whenever the plaintiff repay the said amount of Rs.
3,000/-, defendant No.1 was to take back the said amount
and redeem the suit property. The trial court decreed the
6Page 7
suit by passing a decree of redemption. The first appellate
court reversed the findings recorded by the trial court and
allowed the appeal and set aside the judgment and decree of
the trial court. As against that, the plaintiff preferred the
second appeal. The High Court did not interfere with the
findings of fact recorded by the first appellate court.
10. Since the first appellate court has gone into the
details of facts and evidence and recorded findings to the
effect that the transaction in question was not a mortgage
but contract sale, we would refer some of the findings
recorded by the first appellate court. Paragraphs 19, 20, 25,
26 and 29 of its judgment are worth quoting herein:
 “19. Admittedly the plaintiff is a
widow but she has adopted her grand
son. Rajaram stays at Malgaon. Both
the plaintiff and Rajaram have admitted
that they were in need of money, not
only to purchase another land at
Malgaon but the amount was also
necessary for payment of the Society
debts of Rajaram. In case of mortgage
as well as sale transaction it is quite
possible that for the necessity alienation
takes place. So by itself these two
circumstances would not weigh in favour
of the plaintiff or the defendant. It is
admitted that with the consideration
7Page 8
amount of this sale deed Exh.31, a land
was purchased at Malgaon and that too
in the name of Rajaram. This clearly
indicates that in order to enable
Rajaram to cultivate the land it was
purchased at Malgaon Rajaram
obviously is managing the affairs of the
plaintiff.
20. Apart from the term incorporated in
Exh.31, it is the contention of the
plaintiff that a separate document was
executed by the defendant covering the
suit transaction. That document
according to the plaintiff was taken back
by the defendant at the time of Akshya
Tritiya of 1979, stating that it was
required for the partition suit between
the brothers. A bare perusal of different
stages of the suit indicate that from
time to time the plaintiff has tried to
make improvements in her story. The
defendant has flatly denied that there
was any other document executed on
the date of the sale. For about 11 years
after the transaction the plaintiff was
quite silent. In the plaint, it is
mentioned that after 1978, the
defendant was ready to abide by the
terms but later he avoided the
transaction. In this connection it may be
noted that in the notice Exh.32, issued
by the plaintiff, there is absolutely no
mention of the fact that any such
document had been executed much
less, that it was taken by the defendant
on the Akshya tritiya day. No doubt, it is
an admitted fact that defendant No.2
had filed the Civil suit for partition of the
8Page 9
suit land and that suit was still pending
at the date of the present suit. A pointed
question was asked to the plaintiff as to
why in the notice the fact that another
document had been executed and it was
taken at the time of Akshya Tritiya is not
mentioned. She has no explanation to
offer. According to her nobody else was
present when this document was taken.
xxx xxx xxx
25. Thus, ultimately what remains is the
fact that the sale deed Exh.31 contains
the provision of re-conveyance.
Whether by itself is it sufficient to
conclude that the transaction was a
mortgage transaction. Not only the sale
deed is drafted a pure and simple sale
deed but the plaintiff has tried to make
out inconsistent case. If it had been
agreed that the transaction was to be a
mortgage, normally the Bond writer
would have styled the document as
(conditional sale deed). Rajaram states
that the defendant No.1 was to enjoy
the land in lieu of interest. Neither any
such case is made out nor there any
clue from the recitals in the document.
Entire blot is tried to be put on the Bond
writer by stating that he prompted that
some period should be mentioned. In
fact the suggestion made to the
defendant is that, the bond writer
Sapkar is his friend and he gets
document written from Sapkal, thereby
suggesting that Sapkal had written
some terms not consistent with the
agreement between the parties. It is
9Page 10
strange, even such a suggestion made
when neither plaintiff nor Sapkal have
come out with a positive case that the
document does not incorporate the
terms agreed. At the most their stand is
that, there was contemporaneous
agreement of re-conveyance and that
document has been suppressed. The
existence of the separate document has
been discarded by me.
26. Admittedly, there was no
relationship of debtor and creditor
between the parties, nor is it the case of
the plaintiff that the defendant was
known to her or Rajaram before the
transaction was settled. The document
does not purport to create any
relationship of landlord and tenant. The
shorter period in which the land was to
be got re-conveyed is an indication of
absolute sale with a concession to the
vendor to get back the land in the
stipulated period. In the R of R also in
the other right column there is reference
to this term and the period is of 5 years
only. If there was any other document, it
is not the case of the plaintiff that it was
shown to the village officer. Naturally
we have to proceed on the basis that
the agreement of re-conveyance was an
integral part of the sale deed Exh.31.
No parole evidence to vary the terms of
the same can be allowed. It is quite
easy to make such a case to get over
the obstacle in the way of the plaintiff
but unless the circumstances justify it
cannot be believed.
1Page 11
xxx xxx xxx
29. As against this, the document
Exh.31, apparently shows that it was a
sale absolute. Not only title passed to
the defendant No.1 because there was
consistent recitals that plaintiff and her
heirs have no subsisting interest and
defendant has become full owner. Only
at the end a concession was given to get
the land re-conveyed in 5 years. Hence
in my opinion, the learned Civil Judge
was completely in error in concluding
that the transaction was a mortgage
transaction. I hold that the transaction
was an absolute sale. The plaintiff has
failed to get the land re-conveyed within
stipulated period. Hence, she has lost
her remedy. The appeal therefore, must
succeed.”
11. At the very outset, we are of the view that the
findings recorded by the lower appellate court are pure
findings of fact and hence the High Court has rightly refused
to interfere with those findings in second appeal under
Section 100 of the Code of Civil Procedure. However, we
would like to discuss some of the relevant points on the
basis of those findings recorded by the first appellate court.
The only question for consideration befpre us and which has
rightly been considered by the first appellate court, is as to
1Page 12
whether the transaction in question is mortgage transaction
or it is a sale transaction with a condition of repurchase.
12. The document in question has been described as
Sale Deed transferring the land along with the fixtures and
possession was handed over to the defendant. The relevant
portion of the Sale Deed is extracted hereinbelow:-
“Thus the sale land along with the
fixtures and all rights is being sold to
you with all rights along with its
possession. Thus you may cultivate the
same. Hence forth I or my heirs shall
not be having any right over the same
and you have become the owner of the
said land. Any obstruction would be
removed at my cost. I have received
the consideration for the same for which
there is no complaint. If Rs. 3000/- is
paid within 5 years at the end of any
Falgun month at that time you should
accept the said amount and return the
land to me and on this condition the
land is being sold to you.”
13. Section 58(a) and (c) of the Transfer of Property Act,
1882, needs to be reproduced here:-
“58. “Mortgage”, “mortgagor”,
“mortgagee”, “mortgage-money”
and “mortgage-deed” defined. -- (a)
A mortgage is the transfer of an interest
1Page 13
in specific immoveable property for the
purpose of securing the payment of
money advanced or to be advanced by
way of loan, an existing or future debt,
or the performance of an engagement
which may give rise to a pecuniary
liability.
The transferor is called a
mortgagor, the transferee a mortgagee;
the principal money and interest of
which payment is secured for the time
being are called the mortgage-money,
and the instrument (if any) by which the
transfer is effected is called a mortgagedeed.
(b) …..
(c) Mortgage by conditional sale--
Where, the mortgagor ostensibly sells
the mortgaged property—
on condition that on default of
payment of the mortgage-money on a
certain date the sale shall become
absolute, or
on condition that on such payment
being made the sale shall become void,
or
on condition that on such payment
being made the buyer shall transfer the
property to the seller,
the transaction is called mortgage
by conditional sale and the mortgagee a
mortgagee by conditional sale:
1Page 14
Provided that no such transaction
shall be deemed to be a mortgage,
unless the condition is embodied in the
document which effects or purports to
effect the sale.”
14. From a perusal of the aforesaid provisions
especially, Section 58(c), it is evidently clear that for the
purpose of bringing a transaction within the meaning of
`mortgage by conditional sale’, the first condition is that the
mortgagor ostensibly sells the mortgaged property on the
condition that on such payment being made, the buyer shall
transfer the property to the seller. Although there is a
presumption that the transaction is a mortgage by
conditional sale in cases where the whole transaction is in
one document, but merely because of a term incorporated in
the same document it cannot always be accepted that the
transaction agreed between the parties was a mortgage
transaction.
15. In the case of Williams vs. Owen, 1840, 5
My.&Cr.303 = English Reports 41 (Chancery) 386, a similar
1Page 15
question arose for consideration as to whether a conveyance
by the plaintiff’s father to the defendant was to be
considered as having been a mortgage as contended by the
plaintiff, or as having been a sale, with a right of repurchase
at a given date. It was held that in a mortgage the debt
subsists and a right to redeem remains with the debtor, but
a sale with a condition of repurchase is not a lending and
borrowing arrangement; no debt subsists and no right to
redeem is reserved by the debtor, but only a personal right
to purchase. This personal right can only be enforced strictly
according to the terms of the deed and at the time agreed
upon.
16. In the instant case, the trial court committed grave
error in construing the document and erroneously held that
the transaction is mortgage and hence, the plaintiff is
entitled to decree of redemption.
17. In the case of Vasudeo Bhikaji Joshi v. Bhau
Lakshman Ravut & Others reported in ILR 1897 XXI 528 a
Bench (comprising Sir C. Farran, Kt., Chief Justice and Mr.
1Page 16
Justice Parsons) of the High Court at Bombay considered a
similar question in which the fact was that the plaintiffs sued
to redeem an alleged mortgage made in 1823 by their
ancestor to the ancestor of the defendant. The alleged
mortgage recited a previous mortgage under which the
mortgagee Gopal Gokhale was in possession, and it stated
that a sale had been contemplated, but the parties could not
agree as to price, but that they had now settled it at Rs.
125/- and the amount due on the mortgage at Rs. 200/-, and
that it was agreed that if within four years the mortgagor
paid Rs. 125/- with interest, he should get back the land; if
not, that the land should be the absolute property of
Gokhale. On these facts, the Court held that:-
“This was not a mortgage but a sale. It
was an agreement which put an end to
the previously existing mortgage. A
mere stipulation for repurchase does not
make a transaction a mortgage. To
make a mortgage there must be a debt,
and here there was no debt, nor was the
property here conveyed as security.”
1Page 17
18. In the case of Tamboli Ramanlal Motilal (Dead)
by LRs. v. Ghanchi Chimanlal Keshavlal (Dead) by
LRs. & Another, AIR 1992 SC 1236, the facts of the case
were similar to this case. In that case, a document of
transfer was executed and the property was handed over.
At the same time, the document proceeded to state that the
property is sold conditionally for a period of five years and
possession is handed over. The document stated:
“Therefore, you and your heirs and legal representatives are
hereafter entitled to use, enjoy and lease the said houses
under the ownership right.” The further clause in the
document was to the effect that the executant shall repay
the amount within a period of five years and in case he fails
to repay neither he nor his heirs or legal representatives
would have any right to take back the said properties. The
last important clause was that after the period of five years
the transferee would have a right to get the municipal
records mutated in his name and pay tax. On these facts,
this Court held that:-
1Page 18
 “16. In order to appreciate the
respective contentions, it is necessary
for us to analyse Ex. 26 dated December
11, 1950.
Before that, it is necessary to
utter a word of caution.
 Having regard
to the nice distinctions between 
a
mortgage by conditional sale 
and 
a sale with an option to repurchase, 
one
should be guided by the terms of the
document alone without much help from
the case law. 
Of course, cases could be
referred for the purposes of interpreting
a particular clause to gather the
intention. 
Then again, it is also settled
law that nomenclature of the document
is hardly conclusive and much
importance cannot be attached to the
nomenclature alone since it is the real
intention which requires to be gathered.
It is from this angle we propose to
analyse the document. 
No doubt the
document is styled as a deed of
conditional sale, but as we have just
now observed, that is not conclusive of
the matter.
17. What does the executant do under
the document? 
He takes a sum of Rs.
5,000/- in cash. 
The particulars are (a)
Rs 2,499/- i.e. Rs 899/- by mortgage of
his house on 27-1-1944 and (b) Rs.
1,600 by a further mortgage on 31-5-
1947 totalling to Rs 2,499/-. 
Thereafter,
an amount of Rs 2,501/- in cash was
taken from the transferee. 
The purpose
was to repay miscellaneous debts and
domestic expenses and business. 
It has
to be carefully noted that this amount of
Rs 5,000/- was not taken as a loan at all.
1Page 19
As rightly observed by the High Court,
by executing this document the
executant discharges all the prior debts
and outstandings. 
Where, therefore, for
a consideration of a sum of Rs 5,000/-
with the conditional sale is executed, 
we
are unable to see how the relationship
of debtor and creditor can be forged in.
In other words, 
by reading the
documents as a whole, we are unable to
conclude that there is a debt and the
relationship between the parties is that
of a debtor and a creditor. This is a vital
point to determine the nature of the
transaction.”
This Court, therefore, held that
  the document was not a
mortgage by conditional sale, rather the document was
transfer by way of sale with a condition to repurchase.
19. In the instant case, the alleged sale document was
executed in the year 1967 transferring the suit property by
way of sale subject to one stipulation/condition that on
receiving the sale amount of Rs. 3,000/- within five years the
land was to be returned to the plaintiff-vendor. It is also not
in dispute that after transfer of the land the defendant-
1Page 20
respondent No. 1 came in possession and used & enjoyed
the suit property as an absolute owner. It was only after 11
years that the plaintiff-appellant filed the suit alleging that
the suit property was mortgaged in favour of the
defendant/respondent No.1 herein with a condition to
reconvey the land.
20. In the aforesaid premises, we do not find any
reason to interfere with the findings recorded by the first
appellate court. As stated above, the High Court has rightly
not interfered with the findings of fact recorded by the first
appellate court.
21. For the aforesaid reasons, we do not find any
merit in this appeal which is, accordingly, dismissed, but
without any costs.
…………………………….J.
(P. Sathasivam)
…………………………….J.
(M.Y. Eqbal)
New Delhi,
2Page 21
July 1, 2013.
2

sec.319 Cr.P.C. = no order to the prejudice of an accused or any other person can be made unless the said accused or the said persons have been given an opportunity of being heard. 11. In the instant case also learned Sessions Judge in absence of the petitioner has passed the impugned order whereby he directed the trial Court to implead the petitioner as an accused in the proceeding which in view of the provision as contained in Sections 399/401/401(2) of the Code of Criminal Procedure is illegal. 12. In the result, this application is allowed and the impugned order dated 23.6.2006 s set aside and the case is remanded to the learned Sessions Judge, Bokaro for hearing afresh after giving due notice to the parties so that the same be disposed of in accordance with law.” 33. Since the reasoning discussed hereinabove would be suffice to dispose of the present appeal, we do not wish to go into the merits of the case with regard to the scope of the provisions of Section 319 of Cr.P.C.= We, therefore, allow this appeal, set aside the order of the High Court and remand the matter back to the High Court to consider the matter afresh after giving an opportunity of hearing to the present appellants.

published in http://judis.nic.in/supremecourt/imgs1.aspx?filename=40465
Page 1
‘REPORTABLE’
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 814 OF 2013
(Arising out of SLP (CRL.) No.1619 of 2010)
Mohit alias Sonu and Another …..Appellants
Versus
State of U.P. and Another ….Respondents
J U D G M E N T
M.Y. EQBAL, J.
Leave granted.
2. This appeal is directed against the order dated 28th
October, 2009 passed by the High Court of Judicature at Allahabad
in Criminal Miscellaneous Application No. 22823 of 2009 whereby
the order dated 3rd August, 2009 passed by learned Additional
Sessions Judge, Fast Track Court No. 2, Mathura, rejecting the
application moved by the complainant/respondent No. 2 herein
under Section 319 of the Code of Criminal Procedure, 1973 in
Sessions Trial No. 420 of 2007 was set aside and the trial court was
directed to summon the accused/appellants herein.
Page 2
3. The complainant/respondent No. 2 herein (Deepak) lodged
an FIR naming seven persons as accused regarding the occurrence
which took place on 7th February, 2003 at 10.30 p.m. stating that
the accused persons named in the FIR armed with lathi, danda and
hockey caused injuries to his uncle Kamta Prasad as well as to the
complainant. The complainant was medically examined on 8th
February, 2003 and a lacerated wound of 4 cm x 0.8 cm scalp deep
on left side back of his skull was reported by the doctor. Kamta
Prasad succumbed to his injuries alleged to have been caused by
the accused. The accused were named in the FIR vide Case Crime
No. 44/03 under Sections 147, 323, 504, 506, 304 of the Indian
Penal Code (in short, “I.P.C.”).
The injured complainant as well as
other witnesses were examined by the Investigating Officer (I.O.),
but the I.O. submitted charge-sheet only against five accused
leaving the names of two accused who are appellants before us.
After committal of the case for trial, the trial court in S.T. No. 420
of 2007 examined the complainant as PW-1.
 In his examinationin-chief, the complainant specifically stated the role of the
appellants herein in the occurrence. 
The complainant then moved
an application under Section 319 of the Code of Criminal Procedure,
1973 (in short, ‘Cr.P.C.’) for summoning the appellants herein as
accused in the case. 
However, the trial court vide order dated 25th
2Page 3
July, 2008 disposed of the application in view of the fact that
cross-examination of PW-1 had not completed and the fact had not
been cleared from the witness that there existed probability of the
conviction of the appellants herein.
On a Criminal Miscellaneous
Application being filed under Section 482 of Cr.P.C. before the High
Court of Judicature at Allahabad against the above order, the High
Court vide judgment and order dated 3rd September, 2008 found no
error in the order passed by trial court as the trial court had till
then not finally decided the question of summoning the appellants
and had simply postponed the issue as it thought that the matter
should receive its due and proper consideration only 
after the crossexamination of the witness is over.
Subsequently, PW-2 Vivek and
PW-3 Deepak Kumar Dubey were also examined apart from the
complainant. 
The second application filed under Section 319,
Cr.P.C. was also rejected by the trial court vide order dated 3rd
August, 2009 after considering various legal pronouncements,
discussing the statements of PW-1, PW-2 and PW-3 and finding out
that the evidence on record is improper and contradictory.
Challenging this order, the complainant again filed a Criminal
Miscellaneous Application under Section 482, Cr.P.C. which was
allowed by the High Court vide order dated 28th October, 2009
impugned herein holding that the lower court committed error in
3Page 4
rejecting the application of the complainant/respondent No.2 for
summoning the accused-appellants herein despite the prima facie
evidence adduced by the prosecution disclosing their involvement in
the alleged occurrence for which the other accused are facing the
trial on the same facts of the case. 
The High Court by the
impugned order directed the lower court to summon the accused appellants herein as per provisions under Section 319, Cr.P.C. 
4. In arriving at its conclusion, the High Court in the
impugned order observed as under:
“3. …. From the perusal of the statements of the
witnesses, it appears that the accused persons
named Mohit and Sarthak also have committed the
offence. There is ample evidence against the
accused persons. They are named in the F.I.R.
They are named in the statements of the witnesses
recorded by the investigating officer as per
provisions under section 161 Cr.P.C. There is
specific role attributed to the accused persons and it
cannot be said that they have not participated in the
crime. The learned lower court relying on the
assertion made on the affidavit of some witnesses
which cannot be read at the stage of summoning the
accused persons under section 319 Cr.P.C., wrongly
discussed the evidence of the witnesses on record in
a cursory manner thereby rejecting the application of
the applicant. …… therefore, they are liable to be
summoned.
xxx xxx xxx
6. In the light of the law as is aforesaid, the
perusal of the impugned order revealed that lower
4Page 5
court committed error thereby discussing the
evidence and appreciating the contradictions and the
affidavits on record, thereby finding that the
evidence of the witnesses is not acceptable being
irrelevant in the absence of any motive against the
accused persons sought to be summoned in this
case. Since the witnesses have stated that accused
Mohit alias Sonu and Sarthak alias Babbal have
taken part in inflicting injuries to Deepak and Kamta
Prasad, therefore the case of accused Mohit and
Sarthak cannot be set apart from other accused
persons charge sheeted and against whom the trial
is going on, thereby finding the improbability of the
conviction of accused Sarthak and Mohit regarding
their participation in the occurrence along with other
co-accused persons facing trial. The citations
referred for taking recourse of the finding by lower
court is not of the nature for finding the conclusive
proof of conviction of the accused persons sought to
be summoned rather it is held therein that there
must be reasonable prospectus of the case against
the newly added accused ending in the conviction for
the offence concerned for summoning of the
accused. Reasonable prospectus of conviction has
been wrongly discussed by the lower court replacing
it to the conclusive proof of the conviction with a
detailed discussion ……. The discretionary power
vested in the court as per provisions under section
319 Cr.P.C. is supposed to be used thereby finding a
prima facie case made out against the accused.
While there is allegation of same contribution of the
accused Sarthak and Monu in the alleged occurrence
as remained of other co-accused persons facing trial,
how the case of Monu and Sarthak may be separated
giving interim finding affecting the case of the other
co-accused too in the case, trial of which is going on
before the court on the same allegations against the
accused in trial.
xxx xxx xxx
8. Thus the learned lower court thereby analyzing
the evidence on record wrongly took recourse of the
facts that PW-2 and PW-3 have not proved the
5Page 6
injuries on their persons despite the fact that they
were stating that the injuries were received by them
in the alleged occurrence. Similarly it is also wrongly
analysed at this stage by the learned lower court
that Mudgal (weapon of assault) by which the
deceased is said to have been assaulted, is not
mentioned in the F.I.R. Merely calling for Ramveer
may not be the outcome of the alleged occurrence is
also wrongly held at this stage by the learned lower
court because the learned lower court was not
supposed to give finding at this stage pertaining to
the facts of entire trial to be conducted by the
learned lower court. Similarly the alleged affidavits
on record have also been wrongly considered for the
purpose of finding the contradictions in the
statements of the witnesses examined before the
trial court.”
Hence, this appeal by special leave.
5. Mr. Amarendra Sharan, learned senior counsel appearing
for the appellants while assailing the impugned order passed by the
High Court as being illegal and wholly without jurisdiction, raised
two important points for consideration. Learned counsel firstly
contended that the order passed by the Sessions Court on the
application under Section 319 Cr.P.C. refusing to issue summons to
the non-accused person ought to have been challenged by the
complainant before the High Court invoking its revisional
jurisdiction under Section 397/401 Cr.P.C. According to the learned
counsel, application of the complainant before the High Court under
Section 482 of Cr.P.C. challenging the order passed under Section
6Page 7
319, Cr.P.C. was not maintainable. Secondly, Mr. Sharan submitted
that, in any view of the matter, the High Court while exercising its
inherent jurisdiction under Section 482 Cr.P.C. ought to have given
notice and opportunity of hearing to the appellants before the order
of the Sessions Judge was set aside. On the merits of the appeal,
learned counsel submitted that the High Court while deciding the
petition of the complainant under Section 482 Cr.P.C. on the first
motion upset the reasoned order of the trial court and despite the
fact that the entire evidence adduced till the decision on the
application under Section 319 Cr.P.C. by the trial court was not
before the High Court, even then the High Court exercised its
discretion without issuing notice and giving opportunity of hearing
to the appellants. On the merits of the case, learned counsel
contended that for the purpose of exercising power under Section
319 Cr.P.C., the Court must be satisfied about the existence of
sufficient evidence on record and not only on the basis of prima
facie case. Learned counsel contended that the trial court rightly
refused to summon the appellants on the ground that the witnesses
were contradicted on their earlier statement and that the witnesses
in their statement under Section 164 Cr.P.C. have denied the
presence of these appellants. Learned counsel put reliance on the
decision of this Court in Sarabjit Singh and Another v. State of
7Page 8
Punjab and Another (2009) 16 SCC 46; Hardeep Singh v.
State of Punjab and others (2009) 16 SCC 785 and Municipal
Corporation of Delhi v. Ram Kishan Rohtagi and others
(1983) 1 SCC 1.
6. On the other hand, Mr. Ashok Bhan, learned senior counsel
appearing for the respondent/complainant submitted that from the
evidence adduced by the witnesses, the role played by the
appellants has become apparent and the trial court has committed
serious error of law in refusing to issue summons to the non accused appellants.
Learned counsel relied upon the decisions of
this Court in Lok Ram v. Nihal Singh and Another (2006) 10
SCC 192; and Sarojben Ashwinkumar Shah and Others. v.
State of Gujarat and Another (2011) 13 SCC 316. Mr. Bhan
contended that it is the discretion of the Court to give notice to the
accused for the purpose of issuing summons against them.
According to the learned counsel, there cannot be pre-cognizance
herein. Further, the High Court in exercise of power under Section
482 Cr.P.C., can see the correctness and propriety of the order
passed by the trial court. Learned counsel relied upon the decision
of this Court in Bangarayya v. State of Karnataka and Others
(2010) 15 SCC 114.
8Page 9
7. Before going into the merits of the case, we would like to
answer the two important points raised by the appellants i.e.,
(i) whether petition under Section 482 Cr.P.C. before the High Court
challenging the order of the Sessions Court passed under Section
319 Cr.P.C. is maintainable; and 
(ii) whether the High Court before
passing the impugned order ought to have given notice and
opportunity of hearing to the appellants.
8. Since both the points raised by Mr. Amarendra Sharan,
learned senior counsel appearing for the appellants, being
interlinked, they are discussed here together. However, before
discussing those points, we would like to refer some of the relevant
provisions of the Code of Criminal Procedure.
9. Section 397 Cr.P.C. confers power of revision on the High
Court or any Sessions Court, which reads as under:-
“397. Calling for records to exercise
powers of revision-- 
(1) The High Court or
any Sessions Judge may call for and examine
the record of any proceeding before any
inferior Criminal Court situate within its or his
local jurisdiction for the purpose of satisfying
itself or himself as to the correctness, legality
or propriety of any finding, sentence or order,
recorded or passed, and as to the regularity of
any proceedings of such inferior Court, and
may, when calling for such record, direct that
the execution of any sentence or order be
suspended, and if the accused is in
confinement, that he be released on bail or on
9Page 10
his own bond pending the examination of the
record.
Explanation-- All Magistrates, whether
Executive or Judicial, and whether exercising
original or appellate jurisdiction, shall be
deemed to be inferior to the Sessions Judge
for the purposes of this sub-section and of
Section 398.
(2) The powers of revision conferred by subsection (1) shall not be exercised in relation to
any interlocutory order passed in any appeal,
inquiry, trial or other proceeding.
(3) If an application under this section has
been made by any person either to the High
Court or to the Sessions Judge, no further
application by the same person shall be
entertained by the other of them.”
10. Section 399 deals with Sessions Judge’s power of revision,
whereas Section 401 deals with the power of revision of the High
Court. Section 401 reads as under:-
“401. High Court's powers of revision--
(1) In the case of any proceeding the record of
which has been called for by itself or which
otherwise comes to its knowledge, the High
Court may, in its discretion, exercise any of the
powers conferred on a Court of Appeal by
sections 386, 389, 390 and 391 or on a Court
of Session by section 307 and, when the
Judges composing the Court of revision are
equally divided in opinion, the case shall be
disposed of in the manner provided by section
392.
(2) No order under this section shall be made
to the prejudice of the accused or other person
unless he has had an opportunity of being
1Page 11
heard either personally or by pleader in his
own defence.
(3) Nothing in this section shall be deemed to
authorise a High Court to convert a finding of
acquittal into one of conviction.
(4) Where under this Code an appeal lies and
no appeal is brought, no proceeding by way of
revision shall be entertained at the instance of
the party who could have appealed.
(5) Where under this Code an appeal lies but
an application for revision has been made to
the High Court by any person and the High
Court is satisfied that such application was
made under the erroneous belief that no
appeal lies thereto and that it is necessary in
the interests of justice so to do, the High Court
may treat the application for revision as a
petition of appeal and deal with the same
accordingly.”
11. From bare reading of the aforesaid two provisions, it is
clear that in exercise of revisional power under the aforesaid
provisions, the High Court can call for the records of any criminal
court and examine the correctness, legality or propriety of any
finding, sentence or order, recorded or passed, and as to the
regularity of any proceeding of such inferior court. However,
sub-section (2) of Section 397 puts a restriction on exercise of
such power in relation to an interlocutory order passed by the
criminal courts in any appeal, inquiry, trial or other proceeding.
1Page 12
12. Similarly, Section 401 empowers the High Court to
call for any record in order to examine the correctness, legality
or propriety of any order, finding or sentence passed by the
inferior courts. However, sub-section (2) categorically provides
that no order shall be made by the High Court in exercise of
revisional jurisdiction affecting and prejudicing the right of the
accused or other person, unless he has been given opportunity
of hearing either personally or by pleader in his own defence.
13. Section 482 Cr.P.C. which deals with the inherent
power of the High Court is extracted hereinbelow:-
“482. Saving of inherent power 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.”
14. The power under Section 397 vis-à-vis Section 482 of
Cr.P.C. has been elaborately discussed and explained in the case of
Madhu Limaye v. State of Maharashtra (1977) 4 SCC 551.
The facts of that case were that the appellant was said to have
1Page 13
made certain statements and handed over a press hand-out
containing defamatory statements against the then Law Minister of
the respondent-State. The State Government decided to prosecute
the appellant for offence under Section 500 IPC and accorded
necessary sanction. On the Public Prosecutor filing the complaint,
the Sessions Judge took cognizance of the offence under Section
199(2) Cr.P.C. The appellant contended that even assuming
allegations imputed to him were defamatory, they were not made
against the Minister in discharging his public functions, but only in
his personal capacity. The Sessions Judge rejected these
contentions. On revision, the High Court held that a revision
petition was not maintainable under Section 397(2) Cr.P.C. since
the order of the Sessions Judge was an interlocutory order. A 3-
Judge Bench of this Court discussing the object of the two
provisions i.e. Section 397(2) and Section 482 of Cr.P.C. observed
as under:-
“10. As pointed out in Amar Nath’s case
[(1977) 4 SCC 137] the purpose of putting a
bar on the power of revision in relation to any
interlocutory order passed in an appeal,
inquiry, trial or other proceeding, is to bring
about expeditious disposal of the cases finally.
More often than not, the revisional power of
the High Court was resorted to in relation to
interlocutory orders delaying the final disposal
of the proceedings. The Legislature in its
wisdom decided to check this delay by
1Page 14
introducing sub-section (2) in Section 397. On
the one hand, a bar has been put in the way of
the High Court (as also of the Sessions Judge)
for exercise of the revisional power in relation
to any interlocutory order, on the other, the
power has been conferred in almost the same
terms as it was in the 1898 Code. On a plain
reading of Section 482, however, it would
follow that nothing in the Code, which would
include sub-section (2) of Section 397 also,
“shall be deemed to limit or affect the inherent
powers of the High Court”. But, if we were to
say that the said bar is not to operate in the
exercise of the inherent power at all, it will be
setting at naught one of the limitations
imposed upon the exercise of the revisional
powers. In such a situation, what is the
harmonious way out? In our opinion, a happy
solution of this problem would be to say that
the bar provided in sub-section (2) of Section
397 operates only in exercise of the revisional
power of the High Court, meaning thereby that
the High Court will have no power of revision in
relation to any interlocutory order. Then in
accordance with one of the other principles
enunciated above, the inherent power will
come into play, there being no other provision
in the Code for the redress of the grievance of
the aggrieved party. But then, if the order
assailed is purely of an interlocutory character
which could be corrected in exercise of the
revisional power of the High Court under the
1898 Code, the High Court will refuse to
exercise its inherent power. But in case the
impugned order clearly brings about a situation
which is an abuse of the process of the Court
or for the purpose of securing the ends of
justice interference by the High Court is
absolutely necessary, then nothing contained
in Section 397(2) can limit or affect the
exercise of the inherent power by the High
Court. But such cases would be few and far
between. The High Court must exercise the
inherent power very sparingly. One such case
1Page 15
would be the desirability of the quashing of a
criminal proceeding initiated illegally,
vexatiously or as being without jurisdiction.
Take for example a case where a prosecution is
launched under the Prevention of Corruption
Act without a sanction, then the trial of the
accused will be without jurisdiction and even
after his acquittal a second trial, after proper
sanction will not be barred on the doctrine of
autrefois acquit. Even assuming, although we
shall presently show that it is not so, that in
such a case an order of the Court taking
cognizance or issuing processes is an
interlocutory order, does it stand to reason to
say that inherent power of the High Court
cannot be exercised for stopping the criminal
proceeding as early as possible, instead of
harassing the accused up to the end? The
answer is obvious that the bar will not operate
to prevent the abuse of the process of the
Court and/or to secure the ends of justice. The
label of the petition filed by an aggrieved party
is immaterial. The High Court can examine the
matter in an appropriate case under its
inherent powers. The present case undoubtedly
falls for exercise of the power of the High Court
in accordance with Section 482 of the 1973
Code, even assuming, although not accepting,
that invoking the revisional power of the High
Court is impermissible.”
15. This Court further observed:-
“13. In S. Kuppuswami Rao v. King [AIR 1949
FC 1] Kania, C.J. delivering the judgment of
the Court has referred to some English
decisions at pp. 185 and 186. Lord Esher M.R.
said in Salaman v. Warner (1891) 1 QB 734:
“If their decision, whichever way it is
given, will, if it stands, finally dispose of
the matter in dispute, I think that for
the purposes of these rules it is final.
On the other hand, if their decision, if
1Page 16
given in one way, will finally dispose of
the matter in dispute but, if given in
the other, will allow the action to go on,
then I think it is not final, but
interlocutory.”
To the same effect are the observations quoted
from the judgments of Fry L.J. and Lopes L.J.
Applying the said test, almost on facts similar
to the ones in the instant case, it was held that
the order in revision passed by the High Court
[at that time there was no bar like Section
397(2)] was not a “final order” within the
meaning of Section 205(1) of the Government
of India Act, 1935. It is to be noticed that the
test laid down therein was that if the objection
of the accused succeeded, the proceeding
could have ended but not vice versa. The order
can be said to be a final order only if, in either
event, the action will be determined. In our
opinion if this strict test were to be applied in
interpreting the words ‘interlocutory order’
occurring in Section 397(2), then the order
taking cognizance of an offence by a Court,
whether it is so done illegally or without
jurisdiction, will not be a final order and hence
will be an interlocutory one. Even so, as we
have said above, the inherent power of the
High Court can be invoked for quashing such a
criminal proceeding. But in our judgment such
an interpretation and the universal application
of the principle that what is not a final order
must be an interlocutory order is neither
warranted nor justified. If it were so it will
render almost nugatory the revisional power of
the Sessions Court or the High Court conferred
on it by Section 397(1). On such a strict
interpretation, only those orders would be
revisable which are orders passed on the final
determination of the action but are not
appealable under Chapter XXIX of the Code.
This does not seem to be the intention of the
Legislature when it retained the revisional
power of the High Court in terms identical to
the one in the 1898 Code. In what cases then
1Page 17
the High Court will examine the legality or the
propriety of an order or the legality of any
proceeding of an inferior criminal court? Is it
circumscribed to examine only such proceeding
which is brought for its examination after the
final determination and wherein no appeal lies?
Such cases will be very few and far between. It
has been pointed out repeatedly, vide for
example, River Wear Commissioners v. William
Adamson [(1876-77) 2 AC 743] and R.M.D.
Chamarbaugwalla v. Union of India [(1957)
SCR 930] that although the words occurring in
a particular statute are plain and
unambiguous, they have to be interpreted in a
manner which would fit in the context of the
other provisions of the statute and bring about
the real intention of the Legislature. On the
one hand, the Legislature kept intact the
revisional power of the High Court and, on the
other, it put a bar on the exercise of that
power in relation to any interlocutory order. In
such a situation it appears to us that the real
intention of the Legislature was not to equate
the expression “interlocutory order” as
invariably being converse of the words “final
order”. There may be an order passed during
the course of a proceeding which may not be
final in the sense noticed in Kuppuswami case
(supra), but, yet it may not be an interlocutory
order — pure or simple. Some kinds of order
may fall in between the two. By a rule of
harmonious construction, we think that the bar
in sub-section (2) of Section 397 is not meant
to be attracted to such kinds of intermediate
orders. They may not be final orders for the
purposes of Article 134 of the Constitution, yet
it would not be correct to characterise them as
merely interlocutory orders within the meaning
of Section 397(2). It is neither advisable, nor
possible, to make a catalogue of orders to
demonstrate which kinds of orders would be
merely, purely or simply interlocutory and
which kinds of orders would be final, and then
to prepare an exhaustive list of those types of
1Page 18
orders which will fall in between the two. The
first two kinds are well known and can be
culled out from many decided cases. We may,
however, indicate that the type of order with
which we are concerned in this case, even
though it may not be final in one sense, is
surely not interlocutory so as to attract the bar
of sub-section (2) of Section 397. In our
opinion it must be taken to be an order of the
type falling in the middle course.”
16. In the case of Amar Nath & Ors. v. State of Haryana &
Ors. (1977) 4 SCC 137, two provisions i.e Sections 397 and 482
have been considered and term ’interlocutory order’ has been
fully discussed. In that case, an FIR was lodged mentioning a
number of accused persons including the appellants as having
participated in the occurrence which resulted in the death of the
deceased. The police after holding investigations, submitted a
charge-sheet against the other accused persons except the
appellants against whom the police opined that no case at all
was made out as no weapon was recovered nor was there any
clear evidence about the participation of the appellants. After
submission of the final report, the Judicial Magistrate accepted
the report and set the appellants at liberty. The complainant
thereafter filed a revision petition before the Additional Sessions
Judge against the order of the Judicial Magistrate releasing the
1Page 19
appellants, but the same was dismissed. The informant filed a
regular complaint before the Judicial Magistrate against all the
11 accused including the appellants. The Magistrate after having
examined the complainant and going through the record
dismissed the complaint as he was satisfied that no case was
made out against the appellants. Thereafter, the complainant
took up the matter in revision before the Sessions Judge, who
this time allowed the revision petition and remanded the matter
to the Judicial Magistrate for further enquiry. The Judicial
Magistrate on receiving the order of the Sessions judge issued
summons to the appellants straightaway. The appellants then
moved the High Court under Sections 482 and 397 of the Code
for quashing the order of the Judicial Magistrate, mainly on the
ground that the Magistrate had issued the summons in a
mechanical manner without applying his judicial mind to the
facts of the case. The High Court dismissed the petition in
limine and refused to entertain it on the ground that as the order
of the Magistrate summoning the appellants was an interlocutory
order, a revision to the High Court was barred by virtue of subsection (2) of Section 397 of Cr.P.C. The High Court further held
that as the revision was barred, the Court could not take up the
case under Section 482 in order to quash the very order of the
1Page 20
Judicial Magistrate under Section 397 of Cr.P.C. Answering the
question raised, Hon’ble Fazal Ali, J. delivering the judgment on
behalf of the Bench, observed :-
“While we fully agree with the view taken by the
learned Judge that where a revision to the High
Court against the order of the Subordinate Judge is
expressly barred under sub-section (2) of Section
397 of the 1973 Code the inherent powers contained
in Section 482 would not be available to defeat the
bar contained in Section 397(2). Section 482 of the
1973 Code contains the inherent powers of the Court
and does not confer any new powers but preserves
the powers which the High Court already possessed.
A harmonious construction of Sections 397 and 482
would lead to the irresistible conclusion that where a
particular order is expressly barred under Section
397(2) and cannot be the subject of revision by the
High Court, then to such a case the provisions of
Section 482 would not apply. It is well settled that
the inherent powers of the Court can ordinarily be
exercised when there is no express provision on the
subject-matter. Where there is an express provision,
barring a particular remedy, the Court cannot resort
to the exercise of inherent powers.”
17. So far as the question as to whether the order of the Judicial
Magistrate was an interlocutory order is concerned, Their Lordships
after discussing the legislative background of the provisions held:-
“6….The main question which falls for
determination in this appeal is as to what is
the connotation of the term “interlocutory
order” as appearing in sub-section (2) of
Section 397 which bars any revision of such an
order by the High Court. The term
“interlocutory order” is a term of well-known
legal significance and does not present any
serious difficulty. It has been used in various
2Page 21
statutes including the Code of Civil Procedure,
Letters Patent of the High Courts and other like
statutes. In Webster’s New World Dictionary
“interlocutory” has been defined as an order
other than final decision. Decided cases have
laid down that interlocutory orders to be
appealable must be those which decide the
rights and liabilities of the parties concerning a
particular aspect. It seems to us that the term
“interlocutory order” in Section 397(2) of the
1973 Code has been used in a restricted sense
and not in any broad or artistic sense. It
merely denotes orders of a purely interim or
temporary nature which do not decide or touch
the important rights or the liabilities of the
parties. Any order which substantially affects
the right of the accused, or decides certain
rights of the parties cannot be said to be an
interlocutory order so as to bar a revison to the
High Court against that order, because that
would be against the very object which formed
the basis for insertion of this particular
provision in Section 397 of the 1973 Code.
Thus, for instance, orders summoning
witnesses, adjourning cases, passing orders for
bail, calling for reports and such other steps in
aid of the pending proceeding, may no doubt
amount to interlocutory orders against which
no revision would lie under Section 397(2) of
the 1973 Code. But orders which are matters
of moment and which affect or adjudicate the
rights of the accused or a particular aspect of
the trial cannot be said to be interlocutory
order so as to be outside the purview of the
revisional jurisdiction of the High Court.”
In the concluding paragraph, this Court finally held:-
“Applying the aforesaid tests, let us now see
whether the order impugned in the instant
case can be said to be an interlocutory order
as held by the High Court. In the first place, so
far as the appellants are concerned, the police
had submitted its final report against them and
2Page 22
they were released by the Judicial Magistrate.
A revision against that order to the Additional
Sessions Judge preferred by the complainant
had failed. Thus the appellants, by virtue of the
order of the Judicial Magistrate as affirmed by
the Additional Sessions Judge acquired a
valuable right of not being put on trial unless a
proper order was made against them. Then
came the complaint by Respondent 2 before
the Judicial Magistrate which was also
dismissed on merits. The Sessions Judge in
revision, however, set aside the order
dismissing the complaint and ordered further
inquiry. The Magistrate on receiving the order
of the Sessions Judge summoned the
appellants straightaway which meant that the
appellants were to be put on trial. So long as
the Judicial Magistrate had not passed this
order, no proceedings were started against the
appellants, nor were any such proceedings
pending against them. It was only with the
passing of the impugned order that the
proceedings started and the question of the
appellants being put up for trial arose for the
first time. This was undoubtedly a valuable
right which the appellants possessed and which
was being denied to them by the impugned
order. It cannot, therefore, be said that the
appellants were not at all prejudiced, or that
any right of their’s was not involved by the
impugned order. It is difficult to hold that the
impugned order summoning the appellants
straightaway was merely an interlocutory order
which could not be revised by the High Court
under sub-sections (1) and (2) of Section 397
of the 1973 Code. The order of the Judicial
Magistrate summoning the appellants in the
circumstances of the present case, particularly
having regard to what had preceded, was
undoubtedly a matter of moment, and a
valuable right of the appellants had been taken
away by the Magistrate’s passing an order
prima facie in a mechanical fashion without
applying his mind. We are, therefore, satisfied
2Page 23
that the order impugned was one which was a
matter of moment and which did involve a
decision regarding the rights of the appellants.
If the appellants were not summoned, then
they could not have faced the trial at all, but
by compelling the appellants to face a trial
without proper application of mind cannot be
held to be an interlocutory matter but one
which decided a serious question as to the
rights of the appellants to be put on trial.”
18. In the case of Municipal Corporation of Delhi v. Ram Kishan
Rohtagi (1983) 1 SCC 1, this Court relying upon the earlier decision in
Madhu Limaye case (supra) observed:-
“5. After the coming into force of the Code of
Criminal Procedure, 1973 (hereinafter referred
to as the “present Code”), there was a serious
divergence of judicial opinion on the question
as to whether where a power is exercised
under Section 397 of the present Code, the
High Court could exercise those very powers
under Section 482 of the present Code. It is
true that Section 397(2) clearly bars the
jurisdiction of the court in respect of
interlocutory orders passed in appeal, enquiry
or other proceedings. The matter is, however,
no longer res integra as the entire controversy
has been set at rest by a decision of this Court
in Madhu Limaye v. State of Maharashtra
(1978) 1 SCR, 749 where this Court pointed
out that Section 482 of the present Code had a
different parameter and was a provision
independent of Section 397(2). This Court
further held that while Section 397(2) applied
to the exercise of revisional powers of the High
Court, Section 482 regulated the inherent
powers of the court to pass orders necessary in
order to prevent the abuse of the process of
2Page 24
the court. In this connection, Untwalia, J.
speaking for the Court observed as follows:
[SCC para 10, pp. 555-56 : SCC (Cri) P. 15]
“On a plain reading of Section 482,
however, it would follow that nothing in
the Code, which would include subsection (2) of Section 397 also, ‘shall
be deemed to limit or affect the
inherent powers of the High Court’. But,
if we were to say that the said bar is
not to operate in the exercise of the
inherent power at all, it will be setting
at naught one of the limitations
imposed upon the exercise of the
revisional powers....But in case the
impugned order clearly brings about a
situation which is an abuse of the
process of the court or for the purpose
of securing the ends of justice
interference by the High Court is
absolutely necessary, then nothing
contained in Section 397(2) can limit or
affect the exercise of the inherent
power by the High Court. But such
cases would be few and far between.
The High Court must exercise the
inherent power very sparingly.”
6. It may be noticed that Section 482 of the
present Code is the ad verbatim copy of
Section 561-A of the old Code. This provision
confers a separate and independent power on
the High Court alone to pass orders ex debito
justitiae in cases where grave and substantial
injustice has been done or where the process
of the court has been seriously abused. It is
not merely a revisional power meant to be
exercised against the orders passed by
subordinate courts. It was under this section
that in the old Code, the High Courts used to
quash the proceedings or expunge uncalled for
remarks against witnesses or other persons or
2Page 25
subordinate courts. Thus, the scope, ambit and
range of Section 561-A (which is now Section
482) is quite different from the powers
conferred by the present Code under the
provisions of Section 397. It may be that in
some cases there may be overlapping but such
cases would be few and far between. It is well
settled that the inherent powers under Section
482 of the present Code can be exercised only
when no other remedy is available to the
litigant and not where a specific remedy is
provided by the statute. Further, the power
being an extraordinary one, it has to be
exercised sparingly. If these considerations are
kept in mind, there will be no inconsistency
between Sections 482 and 397(2) of the
present Code.”
19. In the case of Raj Kapoor & Ors. v. State & Ors. (1980)
1 SCC 43, Justice Krishna Iyer, while distinguishing the power of the
High Court under Section 397 vis-à-vis Section 482 of Cr.P.C.
observed that Section 397 or any of the provisions of Cr.P.C. will not
affect the amplitude of the inherent power preserved in Section 482.
Even so, easy resort to inherent power is not right except under
compelling circumstances. Inherent power should not invade areas set
apart for specific power under the same Code.
20. In the light of the ratio laid down by this Court referred to
hereinabove, we are of the considered opinion that the order passed
by the trial court refusing to issue summons on the application filed by
the complainant under Section 319 of Cr.P.C. cannot be held to be an
2Page 26
interlocutory order within the meaning of sub-section (2) of Section
397 of Cr.P.C. Admittedly, in the instant case, before the trial court
the complainant’s application under Section 319 of Cr.P.C. was
rejected for the second time holding that there was no sufficient
evidence against the appellants to proceed against them by issuing
summons. The said order passed by the trial court decides the rights
and liabilities of the appellants in respect of their involvement in the
case. As held by this Court in Amar Nath’s case (supra), an order
which substantially affects the rights of the accused or decides certain
rights of the parties cannot be said to be an interlocutory order so as
to bar a revision to the High Court against that order as contemplated
under Section 397(2) of Cr.P.C.
21. In the instant case as noticed above, when the
complainant’s application under Section 319 of Cr.P.C. was rejected
for the second time, he moved the High
Court challenging the said order under Section 482 of Cr.P.C. on the
ground that the Sessions Court had not correctly appreciated the facts
of the case and the evidence brought on record. The complainant
wanted the High Court to set aside the order after holding that the
evidence brought on record is sufficient for coming to the conclusion
that the appellants were also involved in the commission of the
offence.
2Page 27
22. In our considered opinion, the complainant ought to have
challenged the order before the High Court in revision under Section
397 of Cr.P.C. and not by invoking inherent jurisdiction of the High
Court under Section 482 of Cr.P.C. Maybe, in order to circumvent the
provisions contained in sub-section (2) of Section 397 or Section 401,
the complainant moved the High Court under Section 482 of Cr.P.C.
In the event a criminal revision had been filed against the order of the
Sessions Judge passed under Section 319 of Cr.P.C., the High Court
before passing the order would have given notice and opportunity of
hearing to the appellants.
23. So far as the inherent power of the High Court as
contained in Section 482 of Cr.P.C. 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 inherent power of the
2Page 28
court can ordinarily be exercised when there is no express provision in
the Code under which order impugned can be challenged.
24. Courts possess inherent power in other statute also like
the Code of Civil Procedure (C.P.C.) Section 151 whereof deals with
such power. Section 151 of C.P.C. reads:-
“Nothing in this Code shall be deemed to limit
or otherwise affect the inherent powers of the
Court to make such orders as may be
necessary for the ends of justice or to prevent
abuse of the process of court.”
25. This Court in the case of Padam Sen & Anr. v. State of Uttar
Pradesh, AIR 1961 SC 218 regarding inherent power of the Court
under Section 151 C.P.C. observed:-
“The inherent powers of the Court are in
addition to the powers specifically conferred on
the Court by the Code. They are
complementary to those powers and therefore,
it must be held that the Court is free to
exercise them for the purposes mentioned in
Section 151 of the Code when the exercise of
those powers is not in any way in conflict what
has been expressly provided in the Code or
against the intentions of the Legislation. It is
also well recognised that the inherent power is
not to be exercised in a manner which will be
contrary to or different from the procedure
expressly provided in the Code.”
2Page 29
26. In a Constitution Bench decision rendered in the case of
Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal, AIR
1962 SC 527, this Court held that :-
“The inherent jurisdiction of the Court to make
orders ex debito justiciae is undoubtedly
affirmed by S.151 of the Code but inherent
jurisdiction cannot be exercised so as to nullify
the provision of the Code of Civil Procedure.
Where the Code of Civil Procedure deals
expressly with a particular matter, the
provision should normally be regarded as
exhaustive.”
27. The intention of the Legislature enacting the Code of Criminal
Procedure and the Code of Civil Procedure vis-à-vis the law laid down
by this Court it can safely be concluded that when there is a specific
remedy provided by way of appeal or revision the inherent power
under Section 482 Cr.P.C. or Section 151 C.P.C. cannot and should not
be resorted to.
28. The second question that needs consideration is as to whether
the High Court exercising its revisional jurisdiction or inherent
jurisdiction under Section 482 Cr.P.C., while considering the legality
and propriety of the order passed under Section 319 of Cr.P.C. Code is
required to give notice and opportunity of hearing to the person in
whose favour some right accrued by virtue of order passed by the trial
court. In other words, whether it would be justified for the High Court
2Page 30
to entertain a petition under Section 482 of Cr.P.C. and pass order to
the prejudice of the accused or other person (the appellants herein)
without giving notice and opportunity of hearing to them.
29. Indisputably, a valuable right accrued to the appellants by
reason of the order passed by the Sessions Court refusing to issue
summons on the ground that no prima facie case has been made out
on the basis of evidence brought on record. As discussed hereinabove,
when the Sessions Court order has been challenged, then it was
incumbent upon the revisional court to give notice and opportunity of
hearing as contemplated under sub-section (2) of Section 401 of
Cr.P.C. In our considered opinion, there is no reason why the same
principle should not be applied in a case where such orders are
challenged in the High Court under Section 482 of Cr.P.C.
30. Recently, a 3-Judge Bench of this Court in the case of
Manharibhai Muljibhai Kakadia and Another v. Shaileshbhai
Mohanbhai Patel and Others (2012) 10 SCC 517 considered the
question as to whether in a case where an order of the Magistrate
dismissing the complaint under Section 203 of Cr.P.C. at the stage
under Section 200, the accused or a person who is suspected to have
committed the crime is entitled to hearing by the revisional court.
After considering all the earlier decisions, in the case of P.
3Page 31
Sundarrajan v. R. Vidya Sekar (2004) 13 SCC 472, Raghu Raj
Singh Rousha v. Shivam Sundaram Promotors (P) Ltd. (2009) 2
SCC 363 and A.N.Santhanam v. K. Elangovan (2012) 12 SCC 321,
this Court held as under:-
“53. We are in complete agreement with the
view expressed by this Court in P. Sundarrajan,
Raghu Raj Singh Rousha and A.N. Santhanam. We
hold, as it must be, that in a revision petition
preferred by the complainant before the High Court
or the Sessions Judge challenging an order of the
Magistrate dismissing the complaint under Section
203 of the Code at the stage under Section 200 or
after following the process contemplated under
Section 202 of the Code, the accused or a person
who is suspected to have committed the crime is
entitled to hearing by the Revisional Court. In other
words, where the complaint has been dismissed by
the Magistrate under Section 203 of the Code, upon
challenge to the legality of the said order being laid
by the complainant in a revision petition before the
High Court or the Sessions Judge, the persons who
are arraigned as accused in the complaint have a
right to be heard in such revision petition. This is a
plain requirement of Section 401(2) of the Code. If
the Revisional Court overturns the order of the
Magistrate dismissing the complaint and the
complaint is restored to the file of the Magistrate
and it is sent back for fresh consideration, the
persons who are alleged in the complaint to have
committed the crime have, however, no right to
participate in the proceedings nor are they entitled
to any hearing of any sort whatsoever by the
Magistrate until the consideration of the matter by
the Magistrate for issuance of process. We answer
the question accordingly. The judgments of the
High Courts to the contrary are overruled.”
3Page 32
31. The same question came up for consideration before different
High Courts some of which we would like to refer hereinbelow.
In the
case of Sayeed Bhagat and Others v. State of Andhra Pradesh
1999 Crl.L.J.4040, a Bench of the Patna High Court noticed the facts of
the case where an application was filed in a criminal case under
Section 319 of Cr.P.C. to summon the remaining accused persons who
were named by the witnesses. The Magistrate refused the said prayer
mainly for want of sufficient evidence. The said order was challenged
in revision by the complainant. The revisional court set aside the
order of the Magistrate without hearing the petitioners against whom
prayer was made for issuance of summons. 
When the matter came up
before the High Court, the Bench held as under:-
“8. In the instant case also though the
jurisdiction of the Court to summon a person
under Section 319 of the Cr.P.C. cannot be
questioned, the revisional Court, in my view
should have heard the petitioners before passing
the impugned order because the same has
prejudiced them.”
32. In a similar case in Satish Chandra Dey v. State of
Jharkhand & Anr. 2008 (2) AIR Jhar R 330, the order of Sessions
Judge was challenged in the High Court under Section 482 of Cr.P.C.
on the ground inter alia that the Sessions Judge directed the
Magistrate to summon the petitioner to face trial along with other
3Page 33
accused though the trial court had refused to exercise its jurisdiction
to summon the petitioner to face trial.
The question raised before the
High Court was that the revisional court has erred in law in passing
such order without giving opportunity of hearing to the petitioner.
Allowing the said petition, the High Court held as under :-
“10. Thus it is evidently clear from the relevant
provision of law that no order to the prejudice of
an accused or any other person can be made
unless the said accused or the said persons have
been given an opportunity of being heard.
11. In the instant case also learned Sessions
Judge in absence of the petitioner has passed the
impugned order whereby he directed the trial
Court to implead the petitioner as an accused in
the proceeding which in view of the provision as
contained in Sections 399/401/401(2) of the Code
of Criminal Procedure is illegal.
12. In the result, this application is allowed
and the impugned order dated 23.6.2006 s set
aside and the case is remanded to the learned 
Sessions Judge, Bokaro for hearing afresh after
giving due notice to the parties so that the same
be disposed of in accordance with law.”
33. Since the reasoning discussed hereinabove would be suffice to
dispose of the present appeal, we do not wish to go into the merits of
the case with regard to the scope of the provisions of Section 319 of
Cr.P.C.
34. After giving our anxious consideration in the matter, we conclude
by holding that the High Court has committed a grave error in passing
3Page 34
the impugned order for the reasons given hereinbefore.
We, therefore, allow this appeal, set aside the order of the High Court and
remand the matter back to the High Court to consider the matter
afresh after giving an opportunity of hearing to the present appellants.
…………………………….J.
(P. Sathasivam)
…………………………….J.
(M.Y. Eqbal)
New Delhi,
July 1, 2013.
3