TMI Blog2021 (9) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... he Court u/s 482 of Cr.P.C. are saved by Section 362 of Cr.P.C. but in NEW INDIA ASSURANCE CO. LTD. VERSUS KRISHNA KUMAR PANDEY [ 2019 (12) TMI 1509 - SUPREME COURT] the petitioner was ex parte/not heard and STATE OF PUNJAB AND SUMEDH SINGH SAINI VERSUS DAVINDER PAL SINGH BHULLAR ORS. ETC. [ 2011 (12) TMI 656 - SUPREME COURT] rather carved out certain exceptions to the operation of the bar under Section 362 Cr.P.C. as quoted below: i. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice; or ii. Where the order has been pronounced without giving an opportunity of being heard to a party affected by it; or iii. Where an order was obtained by abuse of the process of court whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder but of observations made in para nos.19 and 20 of the bail order. 3. Paras 19 and 20 of the order dated 30.07.2021 passed in BAIL APPLN.112/2021 and BAIL APPLN.122/2021 are as under: 19. Therefore, merely because the entire section is not re-enacted would be of no consequence since the provision even after being declared unconstitutional, does not get repealed or wiped out from the statute book and it only becomes unenforceable. Therefore, once the Parliament steps in and cures the defect pointed out by a Constitutional Court, the defect appears to be cured and the presumption of constitutionality is to apply to such provision. 20. Thus, there is a presumption in favour of constitutionality since the amended section 45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dey 2019 SCC Online SC 17116 wherein it was held: 45. But the above contention of the learned Senior Counsel for the respondent is fallacious for two reasons. The first is that Section 362 of the Code is expressly subjected to what is otherwise provided by the Code or by any other law for the time being in force. Though this Court pointed out in Davinder Pal Singh (supra) that the exceptions carved out in Section 362 of the Code would apply only to those provisions where the Court has been expressly authorized either by the Code or by any other law but not to the inherent power of the Court, this Court nevertheless held that the inherent power of the Court under Section 482 Cr.P.C. is saved, where an order has been passed by the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant/petitioner on the decisions of the Hon ble Supreme Court in cases of New India Assurance Co. Ltd. vs. Krishna Kumar Pandey, 2019 SCC OnLine SC 1786 as well as State of Punjab vs. Davinder Pal Singh Bhullar (2011) 14 SCC 770 is to state that inherent powers of the Court u/s 482 of Cr.P.C. are saved by Section 362 of Cr.P.C. but in New India Assurance Co. Ltd. (supra) the petitioner was ex parte/not heard and Davinder Pal Singh Bhullar (supra) rather carved out certain exceptions to the operation of the bar under Section 362 Cr.P.C, as under: i. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice; or ii. Where the order has been pronounced without giving an opportunity o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
