Criminal Appeal No 128 of 1990
From the Judgment and Order dated 1981989 of the Patna High Court in Criminal Miscellaneous No 2314 of 1989
AD Sikri Ranjan Mukherjee and D Goburdhan for the Appellant
RK Garg and A Sharan for the Respondents
The Judgment of the Court was delivered by FATHIMA BEEVI J
Special leave granted
790 The legality of the order of the High Court dated 198
1989 passed on an application made under section 482 Cr
PC is challenged in this appeal
In a case instituted on a private complaint by the appellant for offences under sec tions 452 and 323 IPC the Judicial Magistrate First Class Patna in exercise of power under section 1922 Cr
PC transferred the case for enquiry under section 202 of the Code
The Court of the Second Class Magistrate after examining witnesses by order dated 223
1985 issued proc ess to the two accused the respondents herein
The order of the Magistrate issuing process was challenged by the re spondents under section 482 before the High Court
The main ground urged before the High Court was that the First Class Magistrate had transferred the case without taking cogni zance of the offence and the subsequent proceedings were therefore illegal
The High Court by its order dated 20888 dismissed the petition
It was found that there was no such illegality
The respondents again made Crl
Petition 231489 under section 482 Cr
PC before the High Court alleging inter alia that the record of the proceed ings on close scrutiny would indicate that the case had not been taken cognizance of before the transfer
The learned Single Judge accepted the case of the respondents and quashed the proceedings by the impugned order
The learned counsel for the appellant contended before us that the second application under section 482 Cr
PC was not entertainable the exercise of power under section 482 on a second application by the same party on the same ground virtually amounts to the review of the earlier order and is contrary to the spirit of section 362 of the Cr
PC and the High Court was therefore clearly in error in having quashed the proceedings by adopting that course
We find considerable force in the contention of the learned counsel
The inherent power under section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice
Such power cannot be exercised to do something which is expressly barred under the Code
If any considera tion of the facts by way of review is not permissible under the Code and is expressly barred it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision
If there had been change in the circumstances of the case it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court
Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order the exercise of the power to reconsider the 791 same materials to arrive at different conclusion is in effect a review which is expressly barred under section 362
In the present case there had been a definite finding that the complaint was taken cognizance of by the Magistrate before he transferred the proceedings under section 1922 for enquiry under section 202 Cr
This finding has been arrived at after perusal of the record of the proceedings before the Magistrate and on a consideration of the report of the concerned Magistrate
A reappraisal of the facts on record to determine whether such cognizance had been taken of in a subsequent proceeding is not therefore warranted
The only ground on which relief was claimed is the alleged irregularity in the transfer of the proceedings
It was not open to the parties to reagitate the question by a fresh application nor was the court empowered under section 482 to reconsider the matter
Section 362 of the Code expressly provides that no court when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error save as otherwise provided by the Code
Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice
The inherent pow ers however as much are controlled by principle and prece dent as are its express powers by statute
If a matter is covered by an express letter of law the court cannot give a go by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction
In Superintendent  Remembrancer of Legal Affairs vs Mohan Singh  this Court held that section 561A preserves the inherent power of the High Court to make such orders as it deemed fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must therefore exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked
In that case the facts and circumstances obtaining at the time of the subsequent application were clearly different from what they were at the time of the earlier application
The question as to the scope and ambit of the inherent power of the High Court vis a vis an earlier order made by it was therefore not concluded by this decision
The inherent jurisdiction of the High Court cannot be invoked to override bar of review under section 362
It is clearly stated in Sooraj 792 Devi vs Pyare Lal  that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code
The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code
The court is not empowered to review its own decision under the purported exercise of inherent power
We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials
The High Court has grievously erred in doing so
Even on merits we do not find any compelling reasons to quash the proceedings at that stage
We allow the appeal and set aside the order of the High Court
GN Appeal allowed


Summary:
The appellants are teachers in the Kerala Education Society Senior Secondary School New Delhi
They challenged the appointment of Respondent No 5 as Vice Principal by filing a writ petition in the Delhi High Court
The circum stances that led to the filing of writ petition are The Kerala Education Society is a recognised and aided Society
Its primary objects are to promote the study of Malayalam language and to provide facilities for the educa tion of children and to conserve Malayalam language script and culture
In furtherance of these objectives the Society is running Senior Secondary School in New Delhi
Delhi Administration as also the educational authorities have recognised the Institution as a linguistic minority school
The institution is
regulated by the provisions of the Delhi School Education Act and the rules framed thereunder
One post of Vice Principal was created in the school wef 11080
In March 1981 Departmental Promotion Committee was constituted to make selection for the appointment to the post of Vice Principal in accordance with the recruitment rules
The Departmental Promotion Committee made selection from amongst the teachers of the institution to fill up the post of Vice Principal by promotion in accordance with the Rules
The Departmental Promotion Committee recommended the name of Respondent No 5 for promotion to the post of Vice Principal though he did not fall within the zone of consid eration being junior to the appellants
The management of the school accepted the recommendation of the Departmental Promotion Committee and forwarded the papers to the Director of Education for necessary approval
The appellants made representations to the Director of Education against the selection and appointment of Respondent No 5
The Director of Education rejected the proposal of the 806 management and declined to approve the selection and ap pointment of Respondent No 5 on the ground that he did not fail within the zone of consideration and further that he did not possess the necessary qualification of five years experience as Post Graduate Teacher as required by the recruitment rules
The Director of Education however permit ted the management to advertise the post for filling the same by direct recruitment
The management then issued advertisement prescribing the necessary qualifications for the post which included Master s Degree with second divi sion five years teaching experience as Post Graduate Teach er or 10 years experience as trained graduate teacher and ability to speak Malayalam as an essential qualification
The appellants were straightaway not eligible for appoint ment as they were not able to speak or write Malayalam
On the recommendation of the selection committee respondent No 5 was appointed as direct recruit to the post of Vice Principal and the Director of Education approved the ap pointment
Thereupon the appellants as stated earlier filed writ petition in the High Court challenging the appointment of Respondent No 5 and the writ petition was dismissed
Hence this appeal by special leave
Dismissing the appeal this Court HELD An institution set up by the religious or linguis tic minority is free to manage its affairs without any interference by the State but it must maintain educational standards so that the students coming out of that institu tion do not suffer in their career
But if the recognised minority institution is recipient of Government aid it is subject to the regulatory provisions made by the State
The regulatory provisions however cannot destroy the basic right of minority institutions as embodied under Articles 29 and 30
811F G The Kerala Education Society is a recognised and aided institution
It is subject to the reguIatory provisions contained in the Delhi School Education Act 1973 and the rules made thereunder
811H The institution is for promotion of Malayalam language and as Malayalam is a compulsory subject for students upto Vth standard and it is an optional subject for Vlth to XIIth standard
In the circumstance it is not only proper but desirable that the incumbent holding the office of Principal or Vice Principal being administrative in nature should have knowledge of speaking and writing Malayalam
812B The management of the institution acted within its right in pre 807 scribing an additional essential qualification regarding knowledge of Malayalam and no exceptional can be taken to the same as it is the constitutional right of the linguistic minority to insist on the knowledge of the language on the basis of which the linguistic minority is recognised
812C The Kerala Education Bill 1957 Reference under Article 143 of the Constitution 1959 SCR 995 The Ahmedabad St Xaviers College Society and Anr
vs State of Gujarat and Anr
   Lilly Kurian vs Sr
Lewina and Ors
   Frank Anthony Public School Employees  Association vs Union of India  Ors   Mrs Y Theclamma vs Union of India and Ors  and All Bihar Christian Schools Association vs State of Bihar