6. The Apex Court relied heavily on the maxim in A. R.
Antulay v. R. S. Nayak & Anr., [1988 AIR 1513 (SC)] where the appellant, the
then Chief Minister of Maharashtra who resigned in deference to a High Court
judgment, but continued as MLA, was charged before the Special Judge u/s.161 and
u/s. 165 IPC for taking gratification in respect of official act. After several
proceedings in lower and the High Court, the Supreme Court, in appeal before it,
set aside the order of the Special Judge discharging the accused and, as the
proceedings had dragged too long, withdrew the case from the Special Judge
suo motu and assigned it to a sitting Judge of the High Court. As the order
of the Supreme Court was in disregard of the provisions of the Criminal Law
Amendment Act, 1952, under which such offences could be tried by Special Judge
only, the same was challenged before the High Court and then, in appeal, before
the Supreme Court. Admitting the wrong, the Court repelled the argument that as
the Superior Court is deemed to have general jurisdiction, the law presumes that
the Court acted within jurisdiction. The Court observed that ‘the impugned
direction were in deprival of the constitutional rights, contrary to the express
provisions of the Criminal Law Amendment Act, 1952, in violation of the
principles of natural justice, and without precedent in the background of the
Act of 1952. The directions definitely deprived the appellant of certain rights
of appeal and revision and his rights under the Constitution. The Court further
observed “having regard to the enormity of the consequences of the error to the
appellant and by reason of the fact that the directions were given suo motu,
there is nothing which detracts the power of the Court to review its judgment
‘ex debito justitiae’, in case injustice has been caused.
7. The maxim can operate even against the express bar on
review, if circumstances so require. In Madhu Limaye v. State of Maharashtra,
1978 AIR, SC 47, the appellant was prosecuted u/s.500 IPC for making defamatory
statement against the then Law Minister Shri A. R. Antulay. The same was
challenged on the ground that the statement made was in personal capacity. The
challenge having been rejected by the Sessions Judge, revision petition was
filed before the High Court, which was held not maintainable on the ground of
specific bar in relation to interlocutory orders in S. 397(2) of the Cr. P.C.
Holding that the High Court has inherent power to be exercised ‘ex debito
justitiae’ to do the real and substantial justice for the administration of
which alone Courts exist, the Supreme Court observed that “The instant case
wherein the order impugned rejected the application challenging the jurisdiction
of the Court to proceed with the trial, undoubtedly fell for exercise of the
power of the High Court in accordance with S. 482, even assuming, although not
accepting that invoking the revisional power of the High Court is
impermissible.” Similar issue was involved in V. C. Shukla v. State, 1980
AIR 962 SC where the jurisdiction to issue directions by the Judge of Special
Court for charges to be framed against the appellant were challenged. The High
Court held the revision petition not maintainable on the ground of the order
being interlocutory. Not agreeing with the High Court, the Supreme Court held
that “apart from the revisional power, the High Court under the code of 1898
possessed an inherent power to pass order ‘ex debito justitiae’ in order
to prevent abuse of the process of the Court.”
8. The power of review or revision ‘ex debito justi-tiae’ is exercisable only by Courts exercising original, appellate or revisional jurisdiction. The High Court’s power to grant stay of demand in reference proceedings u/s.256 of the Income-tax Act, 1961 came for consideration before the Supreme Court in CIT Delhi v. Bansidhar and Sons, [157 ITR 665 (SC)]. The assessee sought injunction and stay of demand relying upon the inherent jurisdiction u/ s. 151 of the Code of Civil Procedure, which was granted by the High Court on condition of furnishing of adequate security. Upholding the Revenue’s challenge, the Supreme Court ruled that the power to act I ex debito justitiae’ related to matters of procedure and not substantive rights of the parties. In answering questions or disposing of references either u/ s.66 of the 1922 Act or S. 256 of 1961 Act, the High Courts do not exercise any jurisdiction conferred upon them by the C.P.C. or the Charters or by the Act establishing respective High Courts. It is a special jurisdiction of a limited nature conferred by the Income-tax Act for limited purpose of”obtaming the High Court’s opinion on questions of law. Rendering advice has nothing to do with recovery of tax or granting stay. Therefore, the concept of granting stay In a reference’ ex debito justitiae’ does not arise. That concept might arise in case of the Appellate Authority exercising its power to grant stay where there is no express provision.
9. With the deletion of S. 256 and insertion of S. 260A and S. 260B conferring Appellate jurisdiction on High Courts, the aforesaid observations no longer remain relevant.
10. Even though it is neither advisable nor possible to enumerate all the grounds on which the petition ‘ex debito justitiae’ is maintainable, the Courts have been acting only in cases of grave justice and breach of principle of natural injustice where consequences are grave for the aggrieved. In Shivnath Prasad v. State of W.B. and Others, [2006] INSC 62, the High Court’s order refusing to intervene in proceedings launched u/s.120B, u/s.406, u/s.417 and u/s.420 of IPC against R S Lodha in connection with the allegedly forged will of Late Smt. Priyamvada Birla was challenged. An argument was made that since the complaint was frivolous, vexatious, oppressive and malicious, the High Court should have exercised its powers u/ s.482 of Cr. P. C, because such powers are required to be exercised ‘ex debito justitiae’ or for the ends of justice. After going in detail into the facts of the case and scope of the inherent power enshrined in S. 482, the Apex Court declined to inter-fere and the appeal was dismissed.
