India: The Confusion Of Sections 397 To 401 And 482 Of The Cr.P.C. And Article 227 Of The Constitution, And The Remedies Available

By Siddharth Dalmia

Jindal Global Law School

Email: Mobile: +919971799250

Some of the prominent confusions that have been prevailing within the Bar and the Bench pertain to the applicability of Sections 397 to 401 and 482 of the Cr.P.C. and Article 227 of the Constitution of India, include the confusion relating to the Court which can be approached first and after that.  Is there any preferential judicial remedy amongst Sections 397 to 401 and 482 of the Cr.P.C. and Article 227?  One thing, for sure, is that as of now, the Hon'ble Supreme Court of India has settled this issue in the case of Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. Vs. CBI (MANU/SCOR/14976/2018) that the order framing charge is not purely an interlocutory order nor a final order, and  Jurisdiction of the High Court is not barred irrespective of the label of a petition, be it under Sections 397 or 482 Cr.P.C. or Article 227 of the Constitution.

Since u/s 397 of Cr.P.C., both the Sessions as well as High Court has concurrent jurisdiction, one of the prominent question that has been haunting the Bench and the Judiciary is, which Court should be approached first?   Another question is whether after exhausting the remedy u/s 397 of the Cr.P.C., can the remedy of 482 of Cr.P.C. be availed?  The last but not the least important question is, can the High Court be approached u/s 482 despite the remedy being available u/s 397 of the Cr.P.C.  It may be noted that all these queries are inter-related, and the answer is that the powers of the High Court u/s 482 and Article 227 of the Constitution of India are unfettered, which can be availed irrespective of availing the remedies u/s 397 of the Cr.P.C.

Section 397(1) of Cr.P.C.1 reads as under:

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 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 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.

Section 397(2) of Cr.P.C. reads as under:

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.

The above statutory provisions show that there is no bar as to when the High Court can be approached. It is not imperative that the remedy from the lower court, i.e., the Court of Sessions must be exercised before the remedy through the High Court. The only bar in the Section pertains to the revision petition can only be exercised by the court under its jurisdiction. Where a petition lies against an order of the Court of Sessions, the revision petition can only be filed in a High Court with relevant jurisdiction. Also, it is an established fact if the revision petition is dismissed by the Sessions Court then such petition cannot be entertained again by the High Court.

For example, if X has filed a revision petition against Y under Section 397 of Cr.P.C. and it has been rejected by the Court of Sessions, he is barred from filing a revision petition again in the High Court. But if such petition is accepted and X gets relief, then a revision petition can still be filed by Y in the High Court of appropriate jurisdiction.

The same was held in the case of CBI vs. the State of Gujarat2, in which it was decided that there is no statutory limitation as to which court (Sessions Court or the High Court) can be approached first, and this judgement has been referred and reiterated in various High Court decisions.

The application of 482 when 397-401 are still applicable:

Section 397(2) of the Cr.P.C. provides that the powers of revision conferred by sub- Section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.3

The question of inherent powers of the court was decided by the apex court in the case of Madhu Limaye vs. State of Maharashtra4. In this case, it was held that the bar under Section 397(2) to entertain the revision application regarding the interlocutory orders cannot be said to be a bar under 482 of Cr.P.C., as Section 482 is independent of Section 397- 401 of Cr.P.C. which gives wide ambit of powers to the High Court which cannot be listed exhaustively.

In case of Raj Kapoor v. State5 it was reiterated that the Section 397 of Cr.P.C. could not be held as a bar on Section 482 of Cr.P.C. and therefore, the inherent powers of High Courts cannot be affected by other provisions of Cr.P.C., 1973.

But the ultimate question, i.e., whether the courts can be approached under 482 when the remedies under 397- 401 of Cr.P.C. are available has been a judicial hotchpotch. The matter was resolved and finally determined recently. Earlier there were two conflicting judgements regarding the same: Dhariwal Tobacco Products Ltd. v. State of Maharashtra6, and Mohit alias Sonu v. State of Uttar Pradesh7. In Dhariwal, it was established that even if you had a remedy under the Section 397- 401 of Cr.P.C., one could still invoke the inherent powers of the High Court through the Section 482 of Cr.P.C., but the ratio of Mohit vs. State of U.P. was completely opposite, i.e., you would be barred from invoking Section 482 of Cr.P.C. if the remedy can be sought after through the Sections 397- 401 of Cr.P.C.

Keeping the above two conflicting judgements in mind, the matter was finally resolved in Prabhu Chawla v. state of Rajasthan8. The three- judge bench held and clarified the law deciding that the available remedy under Cr.P.C. would not be held as a bar to make a petition under Section 482 of Cr.P.C. The rationale behind the judgement was that Section 482 begins with a non- obstante clause, i.e., "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." Therefore, it was held, that there cannot be a bar on the exercise of such wholesome jurisdiction. Justice Krishna Iyer reiterated the same by saying, "abuse of the process of the court or other extraordinary situation excites the court's jurisdiction. The limitation is self-restraint, nothing more." Another reasoning which was given regarding the same was that the Section 397 is only barred by the Section 397(2), i.e., regarding the interlocutory orders. But if held otherwise, the purview of the Section 482 would become limited to only interlocutory orders which cannot be the case and is an irrational finding.

Hence, it has now been decided that the remedy under Section 397 of Cr.P.C. does not bar the same remedy sought under Section 482 of Cr.P.C.

Now the question is, can Section 397- 401 be circumvented through Section 482 of Cr.P.C.? The earlier stand of the Supreme Court on this issue was determined by Rajan Kumar Machananda vs. State of Karnataka9, where it was held that once the revisional petition under the Section 397 of Cr.P.C., the remedy under Section 482 cannot be sought. The reasoning behind the same was if the opposite were true, it would render the Section 397- 401 redundant and every revision petition rejected and not giving the favorable judgement to the petitioner would be reopened using the Section 482 of Cr.P.C. In short, it was said that every application facing the bar of Section 397(3) Cr.P.C. would be labelled as one under Section 482 Cr.P.C. Thus, the statutory bar cannot be circumvented. Though this matter was referred to a higher bench and although it was subsequently overruled, the surprising fact is it was cited and used in State of Punjab Vs. Davinder Pal Singh Bhullar and others etc.10

The Section 482 of Cr.P.C. talks about the inherent powers of the High Court. The inherent powers of the High Court are not the one conferred by the code, but the ones which the High Court already has in it and the code merely preserves this power. Section 397(3) of Cr.P.C. is just a bar so as to result in a speedy trial and prevent unnecessary delays and multiplicity of the same proceedings. What happens if the High Court has made an error in the judgement which has resulted in grave injustice? Therefore, it was held in the case of Krishnan and Anr. v. Krishnaveni and Anr.11, as under:

"The object of Section 483 and the purpose behind conferring the revisional power under Section 397 read with Section 401 upon the High court is to invest continuous supervisory jurisdiction so as to prevent miscarriage of justice or to correct irregularity of the procedure or to meet out justice or to correct irregularity of the procedure or to meet out justice.

In view of the above discussion, we hold that through the revision before the High Court under sub-Section (1) of Section 397 is prohibited by sub-Section (3) thereof, inherent power of the High Court is still available under Section 482 of the Code and as it is paramount power of continuous superintendence of the High Court under Section 483, the High is justified in interfering with the order leading to miscarriage of justice and in setting aside the order of the courts below. "12

From above, it can be inferred that when there is a grave injustice or infringement of principles of justice and equity, the inherent powers of the High Court can still be invoked. Therefore, although the decision against the revision petition cannot be circumvented per say, if there is a grave injustice the remedy can still be sought after, and the decision under Sections 397- 401 of Cr.P.C. is no bar for that. The judgement of Rajan Kumar Machananda vs. the State of Karnataka13 stands overruled as the Krishnan judgement has been decided by the three- judge Supreme Court Bench and former was decided by the two judge Bench.

The findings of this case have been reiterated and used (and this case has been cited in many judgements) in many cases and in T. Sudhakar Prasad vs. Govt. of A.P. & Ors.14  It was again clarified that the decision under Sections 397- 401 of Cr.P.C. could only be circumvented/ appealed only if any serious prejudice has been caused to the petitioner, so as to enable him to overcome the statutory bar under Section 397(3) Cr.P.C. Proving grave injustice is a must if the petitioner wants to resort back to Section 482 of Cr.P.C. against a decision under Section 397 of Cr.P.C.


1  (Code of Criminal Procedure, 1973)

2  AIR2007SC2522

3  (Code of Criminal Procedure, 1973)

4  (1978) 1 SCR, 749

5  (1980) 1 SCC 43

6  AIR 2009 SC 1032

7  AIR 2013 SC 2248

8  AIR 2016 SC 4245

9  1990 (supp.) SCC 132

10  2012(1) RCR (Crl.) 126

11 (1997) 4 SCC 241

12  Krishnan and Anr. v. Krishnaveni and Anr.(1997) 4 SCC 241

13  Supra

14  Appeal (civil) 5089 1998

© 2018, Vaish Associates Advocates,
All rights reserved
Advocates, 1st & 11th Floors, Mohan Dev Building 13, Tolstoy Marg New Delhi-110001 (India).

The content of this article is intended to provide a general guide to the subject matter. Specialist professional advice should be sought about your specific circumstances. The views expressed in this article are solely of the authors of this article.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions