The Difference In A Criminal Writ, Criminal Revision And 482 – The Plight Of A Litigant In Choosing The Gate

This article seeks to differentiate among the three avenues and when one must be chosen over the other two. Certain case laws along with common dilemma faced by litigants in invoking these provisions of law have also been discussed, along with the advantages and limitations of each course, thereby leaving it open to readers to form an inference concerning a suitable course of action in the face of adversities.

Criminal Writ & When It Should Be Filed

Article 226^[2] of the Indian Constitution provides for the power of the High Courts to issue writs, including writs of mandamus, quo warranto, habeas corpus, certiorari and prohibition, for the enforcement of fundamental rights. Criminal writ petitions under Article 226 can thus, be filed in the High Court when there is a fundamental rights' violation or in cases where an individual seeks the court's intervention to quash or set aside criminal proceedings initiated against them. Thus, criminal writs could be filed for quashing an FIR/criminal proceeding, enforcing the rights of an accused or any other matter related to the criminal law. This may include discovery, pre-trial hearings, motions, custodial violence, bail etc.^[3]

Criminal Revision & When It Should Be Invoked

Section 397^[4] of CrPC allows the High Court and Sessions Judge to call and examine the records of criminal courts inferior to them within their territory. They could do this to make sure that the lower courts' decisions, like judgments or sentences, are correct, legal, and fair. They also check if the lower courts followed the right procedures. Further, the abovementioned courts also have the authority to request a record, and in doing so, can decide to suspend the enforcement of a sentence or order. Moreover, if the accused is undergoing confinement, the applicable court can grant bail or allow them to be released on their own bond until the record is examined. However, it is important to note that under section 397(2), the power to review cannot be invoked to challenge interlocutory orders made during an inquiry, appeal, trial or any other similar legal proceeding.

Further, as per section 401^[5], in cases where an appeal could have been filed but has not been filed, then in such a case, no proceeding concerning revision lies. However, if someone files such an application in a belief being erroneous in concerning the non-maintainability of an appeal, then the HC is empowered through clause (5) of the section for treating that particular application as an appeal petition of appeal. The prerequisite for the same is that it should be found by the Court to be a required action in the interests of Justice.

Section 482 CrPC & When It Should Be Invoked

When it comes to section 482^[6], it provides for the inherent powers of the High Court. As per the section, the HC has inherent power to make orders giving effect to any order under the Code. The section also empowers the HC to make orders that lead to the prevention of abuse of the process of any Cou­­rt or for the purpose of securing ends of justice. It is also to be noted that such powers cannot be affected or limited by any provision of the Code of Civil Procedure.

This inherent power is, however, subject to certain limitations.^[7] For instance, in a recent decision titled “Central Bureau of Investigation v. Aryan Singh”^[8], the court stated that the High Court went beyond its jurisdiction by dismissing the entire criminal case while acting within the scope of s.482 of the CrPC, 1973 and/or while acting within the parameters of Article 226 of the Indian Constitution. It was ultimately stated that when deciding whether to continue against the accused and whether to order a trial, the Court must consider whether there is enough evidence at the time of release and/or when exercising its powers under s.482.

Case Laws

A three-judge bench of the Apex Court has decided whether filing a lawsuit under section 397 of the CrPC precludes the invocation of section 482 of the Code to request relief in the case of “Prabhu Chawla v. State of Rajasthan and Another (2016)”^[9]. The court while giving its decision, relied on the decision in “Raj Kapoor v. State (1980)”^[10] which observed that the language of section 482 is such that nothing including revisional power under section 397 could affect the extent of inherent power as contemplated in the section. Following this, the court also observed that since section 397 applies against all kinds of orders other than interlocutory orders, if the invocation of section 482 could be barred, the section would only remain limited to exercising powers against interlocutory orders. It was finally observed that such a situation would be undesirable and unwarranted. The case of “Vijay v. State of Maharashtra (2017)”^[11] also held that mere availability of an alternative remedy cannot be a ground to disentitle relief under section 482.

The above discussion leads us to another interesting question as to whether an order framing charge would constitute an interlocutory order and whether it would consequently bar the invocation of section 397. Clarity concerning this aspect is brought by the by the Apex Court ruling in the case of “Asian Resurfacing of Road Agency Pvt. Ltd. & Anr. v. CBI (2018)”^[12] by stating that an order issued through the framing charge does not fall within the ambit of final or interlocutory order. It was also stated that jurisdiction of the HC is not barred regardless of the petition having a label of being u/ s. 482 or s.397 of Cr.P.C. or Art. 227 of the Indian Constitution.

The case of “Dhariwal Tobacco Products Ltd. v. State of Maharashtra (2009)”^[13] noted that s.482 i.e. the inherent power of the court is applicable even in circumstances where a second revision before the HC is prohibited by section 397(3) following the dismissal of the first one by the sessions court. This case also referred to the cases of “Pepsi Foods Ltd. v. Special Judicial Magistrate” and “Ashok Chaturvedi v. Shitul H. Chanchani^”[14] wherein it was specifically held that when no offence has been proven against an accused person, he may apply to the High Court under Article 227 of the Indian Constitution or section 482 of the CrPC to have the proceeding quashed against them. The case of “Surya Dev Rai v. Ram Chander Rai”^[15] held that sections 226 and 227 of the Indian Constitution could still be accessed even in cases where a revision application is barred.

Three relevant case laws provide insight into certain express or inferred safeguards for preventing the misuse of these sections. For ensuring adherence with the SC orders, it was first made clear in “Shahid Balwa v. Union of India”^[16] and “Girish Kumar Suneja v. C.B.I.”^[17] that the High Court's jurisdiction under s.482 of CrPC or Art. 227 or 226 of the Indian Constitution. It was also stated that following otherwise would deject the very purpose and object of the order. Second, the inherent power as contemplated under s.482 of CrPC must be used only in situation where the use could be proved to be reasonable as per the criteria provided by this section, as the Supreme Court ruled in the case of “Talab Haji Hussain v. Madhukar Purushottam Mondkar”^[18]. Finally, it has been determined in the case of “Chinubhai Keshavlal Nanavati v. KJ Metha”^[19] that in cases of unjust conviction, moving a competent criminal court in appeal or revision, rather than exercising the exceptional power u/Art. 226 of the Constitution is the right course of action^[20].

A Litigant's Dilemma - Choosing the Right Legal Remedy

In light of the above discussion, the discussion on a quote by Charles Dickens becomes pertinent. He said that “The great principle of out-of-door relief is, to give the paupers exactly what they don't want; and then they get tired of coming.” In Dickens' quote, the idea is that if you provide assistance or relief to those in need that is not genuinely helpful or doesn't address their actual needs, they may become frustrated and eventually stop seeking assistance. In the legal context, this can be related to the litigant's dilemma when choosing the appropriate legal remedy.

Filing a Criminal Writ before the HC under Art.226 of the Indian Constitution can be a powerful tool to address violations of fundamental rights or gross miscarriages of justice. However, the negative aspect of this choice might be that it can be a lengthy and complex process, requiring substantial time and resources. Moving to Criminal Revision, it is a procedure by which a higher court reviews the legality and correctness of an order passed by a court lower than it in superiority.^[21] While it can be a more streamlined process compared to a writ, it has its limitations, and it may not always result in the desired outcome. The negative aspect here could be the uncertainty of the outcome and the potential for further delays. At last, s. 482 of the CrPC allows the exercise of inherent powers by the High Court for securing the ends of justice or for the prevention of abuse of the process of any court.^[22] It provides flexibility but can be a double-edged sword. If a litigant chooses to invoke this section, they may face challenges in convincing the court that their case falls under the purview of this provision and the court may exercise its discretion in unfavourable ways.^[23]

As a follow-up to the foregoing discussion, one could get inspired by a beautiful quote by Milton Berle “If opportunity doesn't knock, build a door”. Berle's quote encourages proactive action when opportunities don't present themselves naturally. It suggests that if you're not getting the results, you want or if the existing options are not favourable, you should take the initiative and create your own opportunities. This could be related to the art of advocacy wherein an advocate is choosing the structure or sequence that allows him to have the other two or one option for availing remedy readily available in case the required remedy could not be availed through the first one option. An advocate can always seek the guidance of law laid down by the Hon'ble SC of India concerning the three avenues through various judgments.