Criminal Miscellaneous Petition No. 7268 of 1984 is filed under S. 482, Cr.P.C. by one R. P. Ulaganambi, the respondent in M.C. No. 36 of 1984, which is an application filed under S. 125, Cr.P.C. by the respondent herein, on the file of the Chief Metropolitan Magistrate, Egmore, Madras. The relief prayed for in this petition is for a direction to the respondent to undergo medical examination to ascertain whether she is suffering from venereal disease, a circumstance which will go in support of the case of the petitioner that the respondent is living in adultery and as such she is not entitled to maintenance.


2. The averments made in the affidavit filed in support of the application are as follows :-


The petitioner is contesting the maintenance petition on the ground that the respondent is leading an adulterous way of life and due to her waywardly life she got sexually transmitted disease which is otherwise known as Venereal Disease. The petitioner has very reliable information that even today the respondent is suffering from the said disease in an acute manner. The very way the respondent walks in and walks out from the Court Hall coupled with the state of her physical condition the petitioner has sincere doubts about her good health and the petitioner has no doubt that she is suffering from the said disease. The real fact in issue in the case pending before the Chief Judicial Magistrate is whether the respondent is leading an immoral life or not. A report of the medical examiner is relevant in such a case under S. 14 of the Evidence Act. Under the said section facts relating to the existence and state of body or bodily feeling would be relevant when the same is in issue and is relevant. Hence the respondent will have to be examined by a doctor and the petitioner is ready to meet the expenses. If the respondent intends to protect her interest she can have a doctor of her choice and whose expenditure also the petitioner is willing to incur.


3. In the affidavit filed by the respondent herein in Crl.M.P. No. 3458 of 1985 the following averments are made :-


The respondent had been examined and her entire evidence had been recorded by the Chief Metropolitan Magistrate in M.C. No. 36 of 1984. The petitioner had imputed adultery against the respondent in his counter-affidavit filed before the Chief Metropolitan Magistrate, Egmore, Madras, but he had not raised this plea of adultery against the respondent in his cross-examination. When the petitioner was called upon by the Chief Metropolitan Magistrate to examine himself or any other witness on his side the petitioner without letting evidence had filed the above petition to drag on the proceedings and delay the granting of maintenance to the respondent. The averments made in the affidavit filed in support of the application are all false. The respondent is ready to submit herself for medical examination as prayed for by the petitioner and to prove her innocence. The respondent has no means of livelihood to maintain herself and she will be put to difficulty if the above petition is not taken up for final disposal at an early date.


4. During the pendency of Crl.M.P. No. 7268 of 1984 the respondent in the said petition filed Crl.M.P. No. 6103 of 1985 to allow her to withdraw para 8 of the counter-affidavit wherein she has stated that she has no objection to submit herself to a medical examination. In the affidavit filed in support of Crl.M.P. No. 6103 of 1985, it is stated that she subsequently came to know that it is not necessary for her to submit to a medical examination and that there is no provision in law for such examination. It is also stated that such a course will give rise to a bad precedent affecting innumerable deserted women and hence she wants to withdraw para 8 of the counter-affidavit. In the counter-affidavit filed in Crl.M.P. No. 6103 of 1985, it is stated by the petitioner that once a solemn undertaking has been made through the affidavit sworn on an earlier occasion the same cannot be withdrawn and if such a withdrawal is allowed the whole proceedings will be a mockery and the sanctity of the Court proceedings can never be maintained.


5. The points for consideration that arise in these petitions are as follows :-


1. Whether the petition under S. 482, Cr.P.C. for a direction directing the respondent in Crl.M.P. No. 7268 of 1984 to submit herself to a medical examination is maintainable ?


2. Whether issuing a direction to the respondent in Crl.M.P. No. 7268 of 1984 to undergo medical examination will be a violation of Art. 20(3) of the Constitution ?


3. Whether the respondent in Crl.M.P. No. 7268 of 1984 can withdraw the averments made in the counter-affidavit regarding her willingness to submit herself to the medical examination ?


6. Crl.M.P. No. 7268 of 1984, containing an extraordinary relief praying for a direction directing the respondent to undergo medical examination in the proceedings started by her under S. 125, Cr.P.C. to enable the petitioner to show that the respondent is suffering from venereal disease from which the petitioner wants to draw an inference that she is leading an adulterous life which disqualifies her from claiming maintenance from the petitioner, is filed under S. 482, Cr.P.C. Section 482, Cr.P.C. deals with the inherent powers of this Court and the same is as follows :-


"482. Saving of inherent powers of High Court. - 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." *


In interpreting the abovesaid section the Supreme Court in the case reported in R. P. Kapur v. State of Punjab 1960 AIR(SC) 866, 1960 (66) CRLJ 1239, 1960 (3) SCR 388, 1945 AIR(PC) 18, 1961 (1) SCJ 59 : 1960 AIR(SC) 866, 1960 (66) CRLJ 1239, 1960 (3) SCR 388, 1945 AIR(PC) 18, 1961 (1) SCJ 59) observed as follows :-


"The said section saves the inherent power 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. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions of the Code ............ It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the Court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceedings in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceedings the High Court would be justified in quashing the proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises; it is a matter merely of looking at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under S. 561-A (old Code) the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under S. 561-A (old Code) in the matter of quashing criminal proceedings and that is the effect of the judicial decisions, on the point." *


The above view has been expressed by the Supreme Court after considering all the earlier decisions on this point. The present case is different in many respects from all the earlier decisions rendered under S. 482 Cr.P.C. which are based upon some proceedings either pending before the lower Court or before the Investigating Officer and in respect of which an order of this Court was sought either for quashing or for a direction. But in the present case there has been no application before the lower Court to direct the respondent to undergo medical examination and such an application had been straightway filed before this Court under S. 482, Cr.P.C. The first question to be considered is whether such an application praying for the abovesaid relief in respect of the proceedings pending before the lower Court is maintainable. This court is not exercising original jurisdiction in respect of trial of criminal cases. Under the Criminal P.C. this Court is given appellate and revisional powers, and in addition to that this Court has inherent powers to correct the obvious errors or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. The inherent powers given to this Court under S. 482, Cr.P.C. are analogous to the appellate and revisional powers and are only intended to cover the matters in respect of which no appeal or revision lies. But S. 482, Cr.P.C. cannot vest in this Court the powers to exercise original jurisdiction which is not contemplated under the provisions of the Criminal P.C. The above petition for the direction is made before this Court for the first time and entertaining this petition will amount to exercise of original jurisdiction which this Court is not entitled to under law. On behalf of the petitioner it is contended that this petition is maintainable since there is no provision in the Criminal P.C. which enables the petitioner to file a petition before the lower court. The procedures relating to the criminal trial are set out in the provisions of the Criminal P.C. and if really there is no provision this Court cannot make a provision by exercising jurisdiction under S. 482, Cr.P.C. That will amount to laying down rules relating to procedures in criminal Courts which is the function of the Legislature and not of this Court. Hence there is no difficulty in coming to the conclusion that petition for a direction to the respondent to undergo medical examination in respect of the proceedings under S. 125, Cr.P.C. pending before the lower Court is not sustainable before this Court in law. The petitioner also relied upon the case reported in State of Bombay v. Nilkanth 1954 AIR(Bom) 65 : 1954 CrLJ 58) (FB) in support of his contention that the above petition for an extraordinary relief is maintainable. In that case the Full Bench of the Bombay High Court held that if the High Court feels that ends of justice require that an order should be made in an application, although the application is not contemplated by the Code, the High Court will entertain the application and make the necessary orders to secure the ends of justice. That was a case in which the inherent jurisdiction of the High Court, to alter the judgment of another Court by expunging the objectionable matter, was considered. The Full bench held that the inherent powers that the High Court possess is, in proper cases, even though no appeal or revision may be preferred to High Court, to judicially correct the observations of the lower Court by pointing out that the observations made by the Magistrate were not justified or were without any foundation or were wholly wrong or improper. This decision can only be an authority for the proposition that this Court in exercising jurisdiction under S. 482, Cr.P.C. can expunge a portion of the judgment of the lower Court. From the above observation it cannot be concluded that this Court acting under S. 482, Cr.P.C. can exercise original jurisdiction for the first time and grant reliefs which were not prayed for before the lower Court.


7. The next case relied on by the petitioner is the case reported in the State of U.P. v. Mohammed Naim 1964 AIR(SC) 703, 1964 (70) CRLJ 549, 1964 (2) SCR 363, 1964 (2) SCC 363 : 1964 AIR(SC) 703, 1964 (70) CRLJ 549, 1964 (2) SCR 363, 1964 (2) SCC 363) where the Supreme Court held that the High Court can, in the exercise of its inherent jurisdiction, expunge remarks made by it or by a lower Court if it be necessary to do so to prevent an abuse of the process of the Court or otherwise to secure the ends of justice. The jurisdiction is of an exceptional nature and has to be exercised in exceptional cases only. This case also does not in any way help the petitioner in asking for an extraordinary relief for the first time from this Court.


8. The phrase occurring in S. 482, Cr.P.C. "to secure the ends of justice" will enable this Court to invoke the powers only if injustice of grave character is perpetrated and such injustice is clear and palpable and there is no other provision by which justice can be rendered. Under the said provisions one cannot ask for a relief in a case pending before the lower Court on the ground that there is no provision under which he can ask for the relief.


9. The second question to be considered is based upon the argument of the respondent that compelling the respondent to undergo medical examination will amount to testimonial compulsion which is violative of Art. 20(3) of the Constitution according to which no person accused of an offence will be compelled to be a witness against himself. On behalf of the petitioner it is contended that (1) issuing a direction to the respondent to undergo medical examination will not amount to compelling her to give testimony against herself; and (2) the proceedings under Section 125, Cr.P.C. is in the nature of civil proceedings to which Art. 20(3) of the Constitution has no application;


10. In support of the contention that issuing a direction to the respondent to undergo medical examination will not amount to compelling her to give evidence against herself, reliance is placed upon the following cases :-In the case reported in Popular Bank (In Liquidation) v. Madhava Naik 1965 (35) CC 174, 1965 AIR(SC) 654, 1965 KerLJ 537, 1965 KerLT 469, 1965 (1) CompLJ 161 it has been held that an order under S. 45 G of the Banking Companies Act for public examination of any person of a Banking Company is not void as violating Art. 20(3) of the Constitution of India, because there is no accusation in a proceeding under S. 45-G resulting in an order for public examination. The object of the section is not to consider any accusation of an offence. In the case reported in Peare Lal v. State 1961 AIR(Cal) 531 : 1961 (2) CrLJ 462) it has been held that a Magistrate's order directing the accused for a test identification parade does not violate the fundamental right under Art. 20(3) of the Constitution. It has also been held that in the course of identification parade the accused does not produce any evidence or perform any evidentiary act. In the case reported in State of Bombay v. Kathi Kalu 1961 AIR(SC) 1808, 1961 (67) CRLJ 856, 1962 (3) SCR 10, 64 BomLR 240, 1961 All(LJ) 936 : 1961 AIR(SC) 1808, 1961 (67) CRLJ 856, 1962 (3) SCR 10, 64 BomLR 240, 1961 All(LJ) 936) it has been held that mere production of documents or giving information by the accused is not "to be a witness" and giving thumb impression, etc., is not "to be a witness" and for the application of Art. 20(3) of the Constitution a person must have stood in the character of accused at the time of the statement. Taking into consideration the views expressed by the Supreme Court on the above question I hold that referring the respondent to a medical examination will not amount to violation of Art. 20(3) of the Constitution of India.


11. The contention that proceedings under S. 125, Cr.P.C. are in the nature of civil proceedings to which Art. 20(3) is not applicable will have to be negatived for the following reasons :-


(1) The proceedings under S. 125, Cr.P.C. are governed by the provisions of the Criminal P.C.;(2) Article 20(3) of the Constitution is applicable to all proceedings conducted in accordance with the provisions of the Cr.P.C.


12. The third aspect to be considered in this case is whether the respondent after stating in the counter-affidavit before the lower Court as well as in this Court that she is willing to undergo medical examination can be permitted to withdraw the said offer by means of an application in Crl.M.P. No. 6103 of 1985. The case of the petitioner is that the respondent cannot be allowed to withdraw the offer made since if the respondent is allowed to withdraw the same made in a solemn affidavit there will be no sanctity in the proceedings before court. Whether the respondent will be bound by an averment made in the affidavit or not depends upon the question whether such an averment will amount to an estoppel under the provisions of the Evidence Act.


13. The estoppel is defined in S. 115 of the Evidence Act, as follows :-


"115. Estoppel. - When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing." *


Illustration


A intentionally and falsely leads to believe that certain land belongs to A and thereby induces B to buy and pay for it


The land afterwards becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want of title."


In order to constitute an estoppel the following ingredients must be present :-


(1) A representation in any form, a declaration, act or omission;(2) The representation must have been of the existence of a fact and not of promises De Futuro or intention which might or might not be enforceable in contract;


(3) The representation must have been made under circumstances which amounted to an intentional causing or permitting belief in another. The proof of the intent may be direct or circumstantial, e.g. by conduct. It is

not necessary that there should be a design to mislead of (or) any fraudulent intention. Representation even when made innocently or mistakenly may operate as an estoppel; (4) Some person must have believed the representation to be true; (5) That person must have acted on the belief so induced and been thus led to change his former position thereby to his prejudice; (6) The misrepresentation, conduct or negligence must have been the proximate and not the remote cause of leading the other party to act to his prejudice; (7) The person claiming the benefit of an estoppel must show that he was not aware of the true state of things. If he was aware of the real state of affairs or had means of knowledge there can be no estoppel. Applying the above tests to this case, the filing of an affidavit by the respondent will not amount to an estoppel since the petitioner had not acted and it has not been shown that going back on the representation will prejudice the petitioner. 14. The next question that will have to be considered is whether the affidavit will amount to an estoppel by deed. If a party to a deed is precluded from questioning his solemn act much injustice will be brought in this country. If it is to be used to promote justice, the degree of strictness with which it is to be enforced must be proportioned to the degree of care and intelligence which the natives of the country in practice bring to bear upon their transactions. Justice, equity and good conscience required no more than that a party to such an instrument should be precluded from contradicting it to the prejudice of another person, when that other or the person through whom the other person claims, has been induced to alter his position on the faith of the instrument. In this case the petitioner has not done anything on the statement made in the affidavit which would alter the situation. Hence the averments made in the counter-affidavit that the respondent is prepared to undergo medical examination will not debar her from taking the contrary position. 15. In the result in view of my conclusion, Cr.M.P. No. 7268 of 1984 is dismissed and Cr.M.P. No. 6103 of 1985 is allowed.