Family Courts Act is properly Demarcated, to that extent there would not be Applicability of the Code [CASE LAW]

Code of Criminal Procedure, 1973 - Sections 125 & 482 - Family Courts Act, 1984 - Sections 7, 8, 10, 19 & 20 - Jurisdiction - Appeal - the area covered by the Family Courts Act, is the area properly demarcated and only to that extent, there would not be applicability of the Code.

In Md. Akil Ahmad vs. the State of Bihar and another reported in 2016(4) P.L.J.R. 968, wherein, it has been observed that order granting ad interim maintenance is amenable under Article 227 of the Constitution of India, but no finding has been given over applicability of Section 482 Cr.P.C., though impliedly jurisdiction has been de-recognized. Furthermore, as it appears the earlier Division Bench decision were not at all cited. As such, there happens to be conflict of view, whereupon needs reconsideration. In the aforesaid background, the judgment reported in 2016(4) P.L.J.R. 968, needs reconsideration by the Division Bench, whereupon office is directed to place before the Hon’ble the Chief Justice for constitution of the same.

IN THE HIGH COURT OF JUDICATURE AT PATNA

CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI

22-11-2018

Criminal Miscellaneous No.6740 of 2016

1. DR. DILIP KUMAR @ DR. DILIP KUMAR SHARMA @ DILIP SHARMA, S/o Late Shiv Pujan Prasad r/o Keshopur Grudwara Road P.S. Jamalpur, District Munger. .... .... Petitioner/s

Versus

1. The State of Bihar.

2. Swati Omi, wife of Dr. Dilip Kumar Sharma @ Dr. Dilip Kumar of Chhoti Kelawari Anand Lane P.S. - Kotwali, District - Munger. .... .... Opposite Party/s

Appearance : For the Petitioner/s : Mr. Dhirendra Nath Jha-Advocate For the Opposite Party/s : Dr. Ravindra Kumar-A.P.P.

O R D E R

Heard learned counsel for the petitioner, learned counsel for the Opposite Party No.2 as well as learned Additional Public Prosecutor.

2. Instant petition has been filed purported to be under Section 482 of the Cr.P.C. against an order dated 03.12.2015 passed by the Principle Judge, Family Court, Munger in Maintenance Case No.153 of 2014, whereby and whereunder the learned Principle Judge, Family Court has directed the petitioner/ husband to pay Rs.15,000/- per month as an ad interim maintenance to the Opposite Party No.2/ applicant/ wife as well as children. The learned Principle Judge also directed to pay Rs.10,000/- as lump sum as cost in filing of the petition as well as Rs.1,000/- per date, the recurring cost of litigation.

3. In the background of matrimonial disharmony, Opposite Party No.2/ applicant/ wife while filed maintenance case putting an allegation of harassment, cruelty, which ultimately resulted in kicking her out from her matrimonial home with children and having no source of income has asked for maintenance.

4. Petitioner/ Opposite Party controverted the allegation by way of show-cause and submitted that as the applicant/ opposite party no.2, herself was not inclined to stay at her matrimonial home, hence she is not entitled to claim the same. Furthermore, on account of voluntary relinquishment whereunder, without any rhyme and reason, forbidden the petitioner/ opposite party to discharge his matrimonial obligation, did not justify the prayer. Apart from this, it has also been pleaded that the wife happens to be Homeopathic doctor and from her practice, earns Rs.40,000/- per month. She also earns additional sum of Rs.10,000/- from painting. To justify the same, corresponding activities having at the end of wife that is payment of E.M.I. against loan having borrowed by opposite party no.2/ applicant, payment of premium against insurance policy have also been averred and on the basis thereof, asked for dismissal of the petition.

5. During midst of proceeding, a prayer has been made on behalf of wife for grant of ad interim maintenance to her along with her children, cost of litigation, whereupon objection was filed and after hearing both side, allowed the prayer by the order impugned, subject matter of instant petition.

6. In order to justify the legality of the instant petition, it has been submitted that after having been conclusively held that the order having been passed relating to grant of ad interim maintenance is an interlocutory order, on account thereof, is not at all revisable and that being so, the order is to be subject to adjudication under Section 482 of the Cr.P.C. attracting inherent jurisdiction of the High Court, whereupon petition is maintainable.

7. While learned counsel for the opposite party no.2 has submitted that as per decision of the Division Bench in Md. Akil Ahmad vs. the State of Bihar and another reported in 2016(4) P.L.J.R. 968, it has been held that the order relating to ad interim maintenance is not at all challengeable under Section 482 of the Cr.P.C. rather it is to be under Article 227 of the Constitution of India and that being so, instant petition is legally not maintainable and is fit to be dismissed. The learned Additional Public Prosecutor endorsed the submission.

8. Maintenance, as provided under Section 125 of the Cr.P.C. and the procedure prescribed there for, adjudicatory power, proper identification of the revisional Court has been, before introduction of Family Courts Act was to be guided in accordance with Criminal Procedure Code. After introduction of Family Courts Act, in order to give speedy remedy to the delinquent, the matter has been entrusted to the Family Court and the proper identification of the powers, procedure, is to be identified so prescribed therein. After going through the Family Courts Act, it is evident that on one stretch, the Court has to exercise its power as a District Judge, while dealing with the issues covering under Section 7(1) of the Act. Simultaneously, the Court has to discharge the power of the Judicial Magistrate, 1st Class while dealing with the maintenance cases in terms of Chapter-IX of the Criminal Procedure Code as incorporated under Section 7(2) of the Act. That means to say, there happens to be proper demarcation in between, with regard to proper recognition of the identity of the Court coupled with the power exercisable corresponding thereto. For proper appreciation of the same, Section 7 of the Family Courts Act is quoted below:-

“7. Jurisdiction.- (1) Subject to the other provisions of this Act, a Family Court shall- -

(1) Subject to the other provisions of this Act, a Family Court shall-" 

(a) have and exercise all the jurisdiction exercisable by any district court or any subordinate civil court under any law for the time being in force in respect of suits and proceedings of the nature referred to in the explanation; and 

(b) be deemed, for the purposes of exercising such jurisdiction under such law, to be a district court or, as the case may be, such subordinate civil court for the area to which the jurisdiction of the Family Court extends. Explanation.-The suits and proceedings referred to in this sub-section are suits and proceedings of the following nature, namely:- 

(a) a suit or proceeding between the parties to a marriage for a decree of nullity of marriage (declaring the marriage to be null and void or, as the case may be, annulling the marriage) or restitution of conjugal rights or judicial separation or dissolution of marriage; 

(b) a suit or proceeding for a declaration as to the validity of a marriage or as to the matrimonial status of any person; 

(c) a suit or proceeding between the parties to a marriage with respect to the property of the parties or of either of them; 

(d) a suit or proceeding for an order or injunction in circumstances arising out of a marital relationship; 

(e) a suit or proceeding for a declaration as to the legitimacy of any person; 

(f) a suit or proceeding for maintenance; 

(g) a suit or proceeding in relation to the guardianship of the person or the custody of, or access to, any minor.

(2) Subject to the other provisions of this Act, a Family Court shall also have and exercise- (a) the jurisdiction exercisable by a Magistrate of the First Class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974); and (b) such other jurisdiction as may be conferred on it by any other enactment.”

9. Section 8 excludes the jurisdiction whenever there happens to be establishment of Family Court and further, all the cases pending before the Competent Court either in terms of Section 7(1) of the Family Courts Act or Section 7(2) of the Family Courts Act are to be transferred before the Family Court and in likewise manner, institution of the case, henceforth. Section 20 of the Family Courts Act requires proper attention at the present juncture itself, which gives overriding effect, whenever there happens to be inconsistency with the other Act. For proper appreciation, the same is quoted below:-

“20. Act to have overriding effect.-The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act. -The provisions of this Act shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or in any instrument having effect by virtue of any law other than this Act."

10. Stepping forward, one another section relevant for the present purpose, has also to be taken note of. Section 10 of the Family Courts Act prescribes procedure to be followed during course of conduction of trial, bifurcating the same in terms of Section 7(1) (2) of the Act, respectively, the same is quoted below:-

“10. Procedure generally.- (1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court. -(1) Subject to the other provisions of this Act and the rules, the provisions of the Code of Civil Procedure, 1908 (5 of 1908) and of any other law for the time being in force shall apply to the suits and proceedings [other than the proceedings under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974)] before a Family Court and for the purposes of the said provisions of the Code, a Family Court shall be deemed to be a civil court and shall have all the powers of such court." 

(2) Subject to the other provisions of this Act and the rules, the provisions of the Code of Criminal Procedure, 1973 (2 of 1974) or the rules made thereunder, shall apply to the proceedings under Chapter IX of that Code before a Family Court.

(3) Nothing in sub-section (1) or sub-section (2) shall prevent a Family Court from laying down its own procedure with a view to arrive at a settlement in respect of the subject-matter of the suit or proceedings or at the truth of the facts alleged by the one party and denied by the other.”

11. After going through Section 10 of the Act, it is evident that applicability of C.P.C. where the dispute relates with concerning Section 7(1) of the Act, and in likewise manner, applicability of Cr.P.C. In case, dispute relates with Section 7(2) of the Act, has been duly acknowledged. That means to say, the procedure so prescribed there for is to be followed in order to achieve the object of the Act with certain exceptions by way of presence of Sections 13, 14, 15 and 16.

12. Now, the another important Section identifying the proper forum where the order is to be challenged is Section 19. For better appreciation, Section 19 of the Family Courts Act is quoted below:-

“19. Appeal.- (1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law. -(1) Save as provided in sub-section (2) and notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908) or in the Code of Criminal Procedure, 1973 (2 of 1974) or in any other law, an appeal shall lie from every judgment or order, not being an interlocutory order, of a Family Court to the High Court both on facts and on law." 

(2) No appeal shall lie from a decree or order passed by the Family Court with the consent of the parties 1[or from an order passed under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974): Provided that nothing in this sub-section shall apply to any appeal pending before a High Court or any order passed under Chapter IX of the Code of Criminal Procedure 1973 (2 of 1974) before the commencement of the Family Courts (Amendment) Act, 1991].

(3) Every appeal under this section shall be preferred within a period of thirty days from the date of the judgment or order of a Family Court.

4[(4) The High Court may, of its own motion or otherwise, call for and examine the record of any proceeding in which the Family Court situate within its jurisdiction passed an order under Chapter IX of the Code of Criminal Procedure, 1973 (2 of 1974) for the purpose of satisfying itself as to the correctness, legality or propriety of the order, not being an interlocutory order, and, as to the regularity of such proceeding.]" 

4[(5)] Except as aforesaid, no appeal or revision shall lie to any court from any judgment, order or decree of a Family Court.

4[(6)] An appeal preferred under sub-section (1) shall be heard by a Bench consisting of two or more Judges."

13. Even after cursory perusal of Section 19, it is evident that the constitution of forum has properly been identified in consonance with the jurisdiction of the Family Court as engrafted under Section 7 of the Act. That means to say, while exercising power adopting procedure under Section 7(1) of the Act, if any order is being passed, the same happens to be appealable one and in likewise manner, while discharging its function as a Magistrate while dealing with issue falling under Chapter-IX of the Cr.P.C., though the order became revisable. The only criteria for invoking the jurisdiction, happens to be the order should be an interlocutory in nature.

14. So, as is evident with regard to judgment or order having the colour of finality, is found appealable or revisable as the case may be, and further, as per Section 19(1) of the Act, there happens to be no provision prescribed for adjudication of an interlocutory matter, on account thereof, the controversy rest upon proper identification of the forum. So far present controversy is concerned, it happens to be with regard to grant of ad interim maintenance under Section 125 Cr.P.C., admittedly an interlocutory order.

15. After delving into the matter, it is evident that Section 8 of the Family Courts Act does permit pendency of case before the Court irrespective of its nature either in terms of Section 7(1) or 7(2) of the Family Courts Act. Furthermore, it is also evident that there happens to be proper identification of nature of cases falling under two different categories, the first one as detailed under Section 7(1) and second one under Section 7(2) of the Family Courts Act. Furthermore, as is evident from Section 19 of the Act, two independent forums have been prescribed, respectively, in order to challenge the finding of the Family Court, with a barrier that it should not be an interlocutory in nature. And that happens to be reason behind that an order, while discharging its function in terms of Section 7(1) of the Act has been made appealable while an order while discharging its function as criminal Court in accordance with Section 7(2) of the Family Court Act has been made revisable. But those privilege are to be availed only when the judgment or order, whichever may be satisfies the ingredients of finality.

16. Prescription of different forum in order to challenge the conclusive finding corresponding to Section 7(1), 7(2) of the Family Courts Act under Section 19 of the Family Courts Act, is found properly enlightened, so far proper identification of nomenclature of petition is concerned and in likewise manner, specifically lay down the procedure covering the sailing thereof. Apart from this, when the same is considered with the parallel scrutiny of Section 10 of the Act, whereunder the procedure laid down to be properly guided by the Code (irrespective of Civil Procedure Code or Criminal Procedure Code) with a rigor where the same is found inconsistent with the procedure so prescribed under the Family Courts Act. The latter will prevail. That means to say, the area covered by the Family Courts Act, is the area properly demarcated and only to that extent, there would not be applicability of the Code.

17. In S.A.L. Narayan Row and another vs. Ishwarlal Bhagwandas and another reported in A.I.R. 1965 SC 1818, it has been held by the Constitution Bench as follows:- 

“The expression "civil or criminal, and such a proceeding includes a revenue proceeding. The expression "civil proceeding" is not defined in the Constitution, nor in the General Clauses Act. The expression our judgment covers all proceedings in which a party assets the existence of a civil right conferred by the civil law or by statue, and claims relief for breach thereof. A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed.” 

18. In Peter P.O. vs. Sara reported in A.I.R. 2007 Kerala 81, Full Bench has held:- 

“3. At the outset, it has to be noted that the issue considered by the learned Single Judge in Kunjimohammed's case (supra) had been considered by the Full Bench in Sathyabhama's case (supra) and it has been held by the Full Bench that, “There is a specific deeming provision which states that while exercising the jurisdiction under Section 7(1), the Family Court shall be deemed to be a District Court or as the case may be a Subordinate Civil Court depending upon the nature of the suits or proceedings before it. There is also further deeming provision in Section 10(1) which states that while exercising jurisdiction under Section 7(1) Family Court shall be deemed to be a 'Civil Court' for the purpose of the provision of the Code and shall have all the powers of such court. The restricted deeming provision in our view would clearly indicate that Family Court can be deemed to be a Civil Court only while exercising the jurisdiction conferred on it under Section 7(1) and disposing of suits or proceedings enumerated in the Explanation to Section 7(1), in accordance with the provision in the CPC. As a corollary we think, it must follow that while exercising jurisdiction under Section 7(2)(a) in accordance with the provisions of the C.P.C. Family Court cannot be deemed or treated as a Civil Court.” Section 7(2)(a) of the Family Courts Act provides for the exercise of jurisdiction by the Family Court, of a Magistrate of the First Class under Chapter IX of the Cr.P.C, relating to maintenance. The provision reads as follows: (7) jurisdiction- (2) Subject to the other provisions of this Act, a Family Court shall also have and exercise- (a) the jurisdiction exercisable by a Magistrate of the first class under Chapter IX (relating to order for maintenance of wife, children and parents) of the Code of Criminal Procedure, 1973 (2 of 1974).” Thus, it is patently clear that Kunjimohammed's case (supra) is an erroneous decision, rendered per incuriam and hence a precedent sub silentio. The same is not the law, in view of the Full Bench decision referred to above. Having come across such a decision, we overrule the decision of the learned Single Judge in Kunhimohammed v. Nafeesa . The proceedings for maintenance before the Family Court under Section 7(2)(a) of the Act is criminal in nature, as held by the Full Bench in Sathyabhama's case (1997 Cri LJ 4306) (supra).”

19. In The Newabganj Sugar Mills Co. Ltd. and others vs. the Union of India and others reported in A.I.R. 1976 SC 1152, it has been held:- 

“The inherent power has its root in necessity and its breadth is coextensive with the necessity though cautioning in the very next line that certainly we cannot go against any statutory prescription.”

20. In Municipal Corporation of Delhi vs. Ram Kishan Rohtagi and others reported in A.I.R. 1983 SC 67, it has been held:- 

“6. It may be noticed that Section 482 of the present Code is the ad verbatim copy of Section 561A 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 subordinate courts. Thus, the scope, ambit and range of s. 561A (which is now s. 482) is quite different from the powers conferred by the present Code under the provisions of s. 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 s. 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.” 

21. The matter has been subject to consideration before the Division Bench in a case of Sita Devi v. the State of Bihar and another reported in 2012 CRI.L.J. 2942, wherein question arose with regard to limitation in filing of Criminal Revision in the background on controversy so canvassed that as per Sub-section 3 of Section 19, the appeal was to be preferred within 30 days, while no limitation has been prescribed for filing Criminal Revision and further, having absence in Sub-section 4 of Section 19 of the Family Courts Act with regard to applicability of procedure so prescribed under the Code regarding Criminal Revision, Article 131 of the Limitation Act would not apply. The Division Bench had occasion to see and analyze Section 29(2) of the Limitation Act guiding the presence of Special Act and had discussed the same in following way:-

“10. The rule embodied under Section 29(2) of the Limitation Act is what is commonly knows as “generalia specialibus non derogant”-general must give way to special. What Section 29(2) of the Limitation Act provides is that where there is a special provision in any law then that would prevail over the provisions of the Limitation Act. Thus, where the legislature wanted to reduce the period available for filing the appeal which, as noticed above, would be 90 days to the High Court, they accordingly in the Family Courts Act provided that the appeal to the High Court would be filed within 30 days in terms of Section 19(3) of the Act. So far as Section 19(4) is concerned the legislature while conferring Criminal Revision Jurisdiction on the High Court did not intend to provide for any change. Therefore, no period is separately specified and hence the provision of the Limitation Act would govern and that being so in terms of Article 131 it would be 90 days.

11. It is then argue that Article 131 of the Limitation Act applies to revision under Code of Criminal Procedure and not revision as contemplated under Section 19 (4) of the Family Court Act. In our view this submission is not correct. As pointed out above, a reference to Section 10(2) of the Family Court Act would show that the legislature had provided that subject to the provisions of the family Court Act, the provisions of the Code of Criminal Procedure would apply to all proceedings under Chapter-IX of the Code of Criminal Procedure Chapter-IX inter-alia contains Sections 125 and 127. If that were so and left untouched then, by virtue of Section 397 of the Code of Criminal Procedure an order passed by the Family Judge under Section 125 or for that matter 127 Cr.P.C. would become revisable by the High Court and the Sessions Judge. The legislature obviously did not want this because the Principal Judge, Family Court is of the level of District & Sessions Judge himself. Therefore, to eliminate the powers of the Sessions Court from Section 397 of the Cr.P.C. it became necessary to provide for the revisional power under the Family Court Act itself. The power that is being exercised under Section 19(4) by the High Court is nothing but the power of revision under Section 397 read with Section 401 of the Code of Criminal Procedure. The only difference is that the power conferred on the Sessions Judge under 397 is excluded. Thus, what is exercised under Section 19(4) of the Family Court Act is the power of the High Court of superintendence as contained under Section 397 read with Section 401 of the Code of Criminal Procedure and it is because of that Article 131 of the Limitation Act would apply to such revisions and not Article 137 of the Limitation Act.

12. Thus, in our view, the answer to the first question as referred to would be that the period of limitation for filing revision in terms of Section 19(4) of the Family Court Act would be 90 days as prescribed under Article 131 of the Limitation Act and to the second question the answer would be that Section 10(2) and Section 19(4) of the Family Court Act are complementary provisions, which in effect only restricts the powers of the Sessions Court to exercise Criminal Revisional Jurisdictions, otherwise the jurisdiction and the power exercised by the High Court under Section 19(4) by virtue of Section 10(2) would be of Section 397 read with Section 401 of the Code of Criminal Procedure, which is nothing but a power of a superintendence.

22. In Misc. Appeal No.70 of 2016 (Sweta Singh vs. Sri Birendra Kumar), the Division Bench had occasion to adjudicate upon whether procedure so prescribed under C.P.C. would be applicable where a matrimonial suit has been dismissed in default. The question so formulated by the Division Bench was, “ Now, it has to be seen as to whether the provision under Order 9 or Section 151 C.P.C. are in conflict with the aforesaid provision of the Act or not ?”. And after making elaborate discussion taking into account, Section 10 of the Family Courts Act, it has been concluded:- 

“The aforesaid provision clearly lays down that provisions of Code of Civil Procedure, 1908 and any other law for the time being in force shall apply to the suits and proceedings save and except the proceedings under Chapter IX of the Code of Criminal Procedure, 1973. Therefore, since there is no provision for restoration of the case under the Act or the relevant rules, v.i.z. Family Courts (Patna High Court) Rules, 2000 and the Bihar Family Court Rules, 2011, which has simply been dismissed for default, in our view, the power of restoration of the case or power of setting aside the ex parte decree would always be available to the Family Courts under the provisions contained in C.P.C. as the same would have its root under Section 10 of the Act itself. On consideration of all the aspects of the matter, one would have to come to irresistible conclusion that in the matters regarding which there is no provision under the Family Courts Act or Rules, the procedure available under the CPC, for example with respect to the present case the provisions under Order 9 Rule 8 or Section 151 of the CPC, would be applicable. A reference in this regard is made to a decision of learned Single Judge of Karnatka High Court in Eknath Vs. Rupa [C 2015(0) Supreme (KAR) 605] as well as a decision of the Division Bench in Smt. Roopa V. Santosh Kumar [AIR 2005 Allahabad 172]. Both the High Courts have taken an identical view in the matter to the views of this Court expressed above.”

23. In Md. Akil Ahmad vs. the State of Bihar and another reported in 2016(4) P.L.J.R. 968, wherein, it has been observed that order granting ad interim maintenance is amenable under Article 227 of the Constitution of India, but no finding has been given over applicability of Section 482 Cr.P.C., though impliedly jurisdiction has been de-recognized. Furthermore, as it appears the earlier Division Bench decision were not at all cited. As such, there happens to be conflict of view, whereupon needs reconsideration.

24. In Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs. Central Bureau of Investigation reported in 2018(2) P.L.J.R. 329 (SC), it has been held:-

“20. It was observed that power under Section 482 Cr.P.C. could be exercised only in rarest of rare cases and not otherwise. In Shalini Shyam Shetty vs. Rajendra Shankar Patil (2010) 8 SCC 329: 38. The Criminal Procedure Code is undoubtedly a complete code in itself. As has already been discussed by us, the discretionary jurisdiction under Section 397(2) CrPC is to be exercised only in respect of final orders and intermediate orders. The power under Section 482 CrPC is to be exercised only in respect of interlocutory orders to give effect to an order passed under the Criminal Procedure Code or to prevent abuse of the process of any court or otherwise to serve the ends of justice. As indicated above, this power has to be exercised only in the rarest of rare cases and not otherwise. If that is the position, and we are of the view that it is so, resort to Articles 226 and 227 of the Constitution would be permissible perhaps only in the most extraordinary case. To invoke the constitutional jurisdiction of the High Court when the Criminal Procedure Code restricts it in the interest of a fair and expeditious trial for the benefit of the accused person, we find it difficult to accept the proposition that since Articles 226 and 227 of the Constitution are available to an accused person, these provisions should be resorted to in cases that are not the rarest of rare but for trifling issues.

……………………………………………….

23. We may also refer to the observations of the Constitution Bench in Ratilal Bhanji Mithani versus Asstt. Collector of Customs, Bombay and Anr. (1967)3 SCR 926 about the nature of inherent power of the High Court:

“The inherent powers of the High Court preserved by Section 561-A of the Code of Criminal Procedure are thus vested in it by "law" within the meaning of Art. 21. The procedure for invoking the inherent powers is regulated by rules framed by the High Court. The power to make such rules is conferred on the High Court by the Constitution. The rules previously in force were contained in force by Article 372 of the Constitution.” 

24. As rightly noted in the impugned judgment, a Bench of seven Judges in L. Chandra Kumar (supra) held that power of the High Court to exercise jurisdiction under Article 227 was part of the basic structure of the Constitution.

25. Thus, even though in dealing with different situations, seemingly conflicting observations may have been made while holding that the order framing charge was interlocutory order and was not liable to be interfered with under Section 397(2) or even under Section 482 Cr.P.C., the principle laid down in Madhu Limaye (supra) still holds the field. Order framing charge may not be held to be purely a interlocutory order and can in a given situation be interfered with under Section 397(2) Cr.P.C. or 482 Cr.P.C. or Article 227 of the Constitution which is a constitutional provision but the power of the High Court to interfere with an order framing charge and to grant stay is to be exercised only in an exceptional situation.

26. We have thus no hesitation in concluding that the High Court has jurisdiction in appropriate case to consider the challenge against an order framing charge and also to grant stay but how such power is to be exercised and when stay ought to be granted needs to be considered further.”

25. In the aforesaid background, the judgment reported in 2016(4) P.L.J.R. 968, needs reconsideration by the Division Bench, whereupon office is directed to place before the Hon’ble the Chief Justice for constitution of the same.