Introduction:

In a significant ruling clarifying the scope of revisional jurisdiction under the newly enacted Bhartiya Nyay Suraksha Sanhita, 2023 (BNSS), the Delhi High Court held that the statutory bar on revision of interlocutory orders under Section 438(2) cannot be circumvented by invoking the Court’s inherent powers. The case, titled Ability Dodzi @ Chinazom Ability v. State NCT of Delhi [CRL.M.C. 4704/2025], was decided by Justice Girish Kathpalia, who also imposed a cost of ₹20,000 on the petitioner for attempting to bypass this legislative prohibition. The Court made it clear that what is explicitly prohibited by law cannot be achieved indirectly through inherent jurisdiction, warning that such attempts would amount to granting a “backdoor entry” to relief expressly barred by statute. This decision not only reiterates the limitations on the High Court’s powers under BNSS but also signals a strict judicial approach towards maintaining procedural discipline under the new criminal law regime.

Arguments by the Petitioner:

The petitioner challenged the trial court’s order which issued fresh summons to the Investigating Officer (IO) after the initial summons could not be served as the IO was on leave. The petitioner argued that the trial court acted mechanically and failed to appreciate the urgency of his application seeking preservation and production of CCTV footage from the concerned police station and the office of the Foreigners Regional Registration Officer (FRRO).

It was contended that the CCTV footage was crucial for the defense, and any delay in securing it could result in its loss, thereby prejudicing the petitioner’s case. The petitioner submitted that the trial court’s order summoning the IO without granting any interim relief effectively frustrated the purpose of the application. Further, the petitioner invoked the inherent powers of the High Court under Section 482 of the Code of Criminal Procedure (as adopted under BNSS) to challenge what he termed an “arbitrary and unjust” interlocutory order, arguing that extraordinary circumstances justified such intervention to prevent miscarriage of justice.

The petitioner’s counsel emphasized that the inherent powers of the High Court are designed to ensure justice and prevent abuse of process, and therefore, a strict interpretation of Section 438(2) should not override the Court’s constitutional duty to protect fundamental rights.

Arguments by the Respondent (State):

The State, represented by the Additional Public Prosecutor, strongly opposed the petition, asserting that the order under challenge was purely interlocutory in nature and thus fell squarely within the bar under Section 438(2) of the BNSS. It was argued that the issuance of fresh summons to the IO did not affect any substantive rights of the petitioner and was merely a procedural step in the ongoing trial process.

The State further contended that the petitioner’s attempt to invoke inherent powers was an impermissible exercise aimed at bypassing the explicit legislative mandate. The prosecution highlighted that the IO’s presence was necessary for deciding the petitioner’s application regarding CCTV footage, and therefore, the trial court acted well within its jurisdiction. The respondent stressed that if such petitions were entertained under the guise of inherent powers, it would open floodgates for challenges to routine interlocutory orders, defeating the very purpose of Section 438(2).

Additionally, the State pointed out that there was no demonstrable “gross injustice” or extraordinary circumstance warranting the High Court’s interference at this stage, and the petitioner’s apprehension regarding loss of CCTV footage was speculative, given that the trial court was already seized of the matter.

Court’s Observations and Judgment:

Justice Girish Kathpalia began by underscoring the legislative intent behind Section 438(2) of the BNSS, which categorically prohibits the exercise of revisional powers against interlocutory orders. The Court held that allowing a petition under inherent powers in such a scenario would render the statutory bar meaningless and create an alternate route to achieve what the law expressly forbids.

The Court observed:

 “What is prohibited by law cannot be done by invoking inherent powers, as that would be allowing backdoor entry to the relief claimed.”

The bench clarified that inherent powers are not unbridled and cannot be exercised to circumvent statutory provisions. Their scope is confined to preventing abuse of process or securing the ends of justice in situations of gross injustice, which was clearly absent in the present case.

On the merits of the petitioner’s grievance, the Court noted that the trial court’s order was procedural, involving reissuance of summons because the IO was on leave. There was no substantive adjudication adversely affecting the petitioner’s rights. The Court further pointed out that the petitioner’s application for CCTV footage was still pending before the trial court, and therefore, the apprehension of evidence being lost was premature.

Significantly, the Court remarked:

 “The provision under Section 438(2) of BNSS explicitly prohibits exercise of revisional powers against interlocutory orders. It is also not a situation of gross injustice.”

Holding that the petition was an abuse of process, the Court dismissed it with exemplary costs of ₹20,000, payable within two weeks to the Delhi High Court Legal Services Committee. It emphasized that such costs were necessary to deter frivolous attempts to circumvent statutory limitations, particularly under the newly introduced criminal procedure framework.

Key Legal Principles Reinforced by the Judgment:

• Statutory Bar on Revisional Jurisdiction: Section 438(2) of BNSS expressly prohibits revision of interlocutory orders, and this prohibition cannot be diluted through inherent powers.
• Limited Scope of Inherent Powers: High Courts cannot use inherent powers as a “backdoor entry” to override statutory mandates; their use is restricted to preventing abuse of process or correcting gross injustice.
• Nature of Interlocutory Orders: Orders that do not determine substantive rights and are procedural in nature fall within the ambit of interlocutory orders.
• Costs as Deterrent: Imposition of exemplary costs is justified to discourage misuse of judicial processes under the pretext of inherent jurisdiction.

Impact and Significance of the Ruling:

This judgment is a landmark interpretation of BNSS 2023, signaling a strict judicial approach to procedural discipline under the new criminal law regime. It serves as a cautionary precedent against litigants seeking to exploit inherent powers to challenge routine procedural orders. By affirming the primacy of legislative intent and imposing costs for abuse of process, the Court reinforced the principle that inherent jurisdiction cannot be a substitute for statutory remedies.

The decision will likely influence future litigation strategies, particularly in cases involving interlocutory orders, ensuring that the High Court’s time is not wasted on challenges to non-final procedural directions. This ruling also strengthens the predictability and uniformity of criminal procedure under BNSS, contributing to its effective implementation.