Baddar Din vs Narsingh Dayal and Others

B.A. Khan, J.—This petition u/s 561-A Cr. P. C. seeks recall of order passed by this Court in Criminal Reference No. 7/93 dated 27-7-

1993. The question that arises in the process is: whether the . order passed by this Court, in exercise of its criminal revisional jurisdiction, can be

recalled in the face of the provisions of Sections 369 and 440 of the Code of Criminal Procedure?

The controversy can be traced to proceedings initiated by the petitioner by moving the Executive Magistrate u/s 145, Cr. P. C. His case was

that he had taken on lease land measuring 5 kanals 1 marla from the respondents for a consideration of Rs. 5,000 vide lease deed dated 1,3-3-

1988 but later on respondent No. 1 managed to get revenue entries made in his favour resulting in his forcible dispossession on 2-6-1988. He

moved the application before the Sub Divisional Magistrate, Basohli, initially which was later transferred to the Tehsildar Executive Magistrate,

Bani. It appears that Sub Divisional Magistrate, Basohli, passed the preliminary order on 14-6-1988 and after the proceedings were transferred,

the Tehsildar Executive Magistrate, Basholi, passed an order of attachment of land on 25-10-1991 and thereafter passed order dated 30-11-

1992 whereby he declared petitioner to be in possession until ousted in due course of law. This order was challenged in a criminal revision before

the learned Sessions Judge, Kathua, who found the preliminary order defective for not conforming to the requirements of the provisions of Section

145, Cr. P. C. and recommended the setting aside of the same to this Court. He accordingly made a reference to this Court (Crl. Ref. No. 7/93)

which was accepted vide order dated 27-7-1993 directing the restoration of land to the respondents. This order was passed in absence of the

petitioner and taking cue from this he has filed this petition invoking the inherent powers of this Court to canvass that the order should be recalled

as it has been passed at his back and in violation of the principles of natural justice, same being nullity in the eye of law.

The petitioner's case is that the criminal reference was posted before the Deputy Registrar who was told that it would be listed in the Court on

9-8-1993, But it was listed on 27-7-1993 before the Court in the orders column and was finally disposed of in his absence. It is submitted that no

opportunity of being heard was afforded to him in the circumstances and in any case the matter was listed in the orders column and as the counsel

for the petitioner was busy in a murder case on 27-7-1993, he could not reach the Court on that date. It is moreover urged that the controversial

order passed by this Court did not conform the provisions of Section 439(2), Cr. P. C. inasmuch as no adequate opportunity was afforded to the

petitioner to project his case. Learned counsel for the petitioner, Mr. Goni, has placed whole hog reliance on 1982 KLJ 55, a full bench judgment

of this Court, to canvass that the order passed by this Court was a nullity for having been passed in the circumstances detailed hereinabove and in

the absence of the petitioner and could be corrected by ordering re-hearing of the matter irrespective of the bar created by the provisions of

Section 369, Cr. P. C. He also derived support from another Full Bench Judgment of this Court titled Manga v. Dhanna, 1971 JKLR 414, on the

point that if the omission in the preliminary order did not cause prejudice to the other side or did not result in miscarriage of justice and where the

parties knowing the nature and subject matter of the dispute had faced the trial, the defect in the preliminary order would not vitiate the entire

proceedings and the Executive Magistrate could be directed to pass appropriate preliminary order in accordance with the provisions of Section

145 and then to start proceedings afresh. Learned counsel in short, urged that if it was not found possible to touch the order passed by this Court

dated 27-7-1993, yet, it could be given its real effect by directing the executive magistrate to pass a fresh preliminary order and to re-start the

proceedings.

Mr. Mehta, earned counsel for the respondents, on the other hand, heavily relied on the provisions of Sections 369 and 440, Cr. P. C. to assert

that the Code of Criminal Procedure created an absolute bar against the review of a judgment in criminal matters. He referred to and relied upon ;

Smt. Sooraj Devi Vs. Pyare Lal and Another, and State of Orissa Vs. Ram Chander Agarwala and Others, , in this regard.

It is in this backdrop that the issue is required to be considered and for proper appreciation of the controversy it becomes necessary to refer to

the provisions of Sections 369 and 440 of the Cr. P. C. The two sections are extracted hereunder:-

Court not to alter judgment :- Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of the

High Court, by the constitution of High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct clerical

error.

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Optional with Court to hear parties:-No party has any right to be heard either personally or by pleader before any Court when exercising its

powers of revision;

Provided that the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader, and that nothing in this

section shall be deemed to affect Section 439, Sub-section (2).

As would be evident, provisions of Section 369 impose a blanket ban on the Court to alter or review a judgment after it has been signed except

to correct a clerical error. This is, however, subject to any other provisions contained in the Code to the contrary or in any other law for the time

being in force or in the case of the High Court by the Constitution of the High Court. It is nobody's case that there is any other provision to the

contrary contained in the Cr. P. C. or any law in force, nor is the High Court empowered by the State Constitution creating it to alter or review a

judgment passed in exercise of criminal jurisdiction. There is no provision in the Constitution Act of 1996 also or in the Letters Patent which were

issued to the High Court by the then His Highness on 28-8-1943 enabling or authorising the High Court to alter or review its judgment passed in a

criminal matter. It necessarily follows that the High Court has no power to revoke, review or alter its own judgment in a criminal case where such

judgment has been rendered in exercise of its appellate or revisional jurisdiction.

It is also well settled that the inherent power given u/s 561-A, Cr. P. C. is exercisable to prevent an abuse of the process of the Court and to

secure the ends of justice. However, this power cannot be exercised in matters where a bar has been created under the provisions of the Cr. P. C.

In other words, the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. This is in tune with

the legal position enunciated in State of Orissa Vs. Ram Chander Agarwala and Others, ; Smt. Sooraj Devi Vs. Pyare Lal and Another, and .

Alongside this it is also to be remembered that it is optional to hear parties in exercising its power of revision and no party has any right to be heard

whether personally or by pleader before any Court in terms of Section 440.

Referring to the Court's incapacity to alter or review its own judgment in criminal cases, it has to be borne in mind that the judgment must have

been validly pronounced and should not be a nullity. Wherever the judgment suffers from any such infirmity, the bar created by the provisions of

Section 369 would obviously not operate. Support is lent to this view by a Full Bench Judgment of this Court reported in 1982 KLJ 55 wherein it

was held that

...the requirements of Section 439(2) had not been complied with in the hearing of the revision and consequently the order passed was void ab

initio and that it was, therefore, open to the Court to re-hear the case on merits and that Section 369 could not stand as a bar...."".

Having noticed all this it remains to be seen whether the order passed by this Court on 27-7-1993 accepting the recommendation of the learned

Sessions Judge but admittedly passed in the absence of the petitioner can be declared to be a nullity to get out of the clutches of the bar imposed

by the provisions of Section 369. The petitioner's case in this regard is that since this Court had not observed the requirements of Section 439(2)

by not affording him an opportunity of being heard, it was a non-compliance with a mandatory provision, going to the very root of the matter

rendering the order a nuliity. It is further contended that if this contention was unacceptable, still it was open to this Court to give real effect to the

controversial order by further directing the Executive Magistrate to pass a fresh preliminary order and to re-start the proceedings in accordance

with the Full Bench Judgment of this Court reported in 1971 JKLR 414.

I am afraid I am not persuaded by the submissions made. This is for the reason that Section 439(2) is attracted in cases where the Court in

exercise of its revisional power may enhance the sentence or pass any order in exercise of the powers conferred on a Court of appeal by Sections

423, 426, 427 & 428 or on a Court by Section 338. The order dated 27-7-1993, sought to be recalled, does not fall under any of these

categories. Therefore, it cannot be said that this Court has committed any breach in the observance of the provisions of Section 439(2) rendering

the order a nullity and exposing it to be recalled in exercise of the inherent power.

Coming to the prayer made by learned counsel for the petitioner, Mr. Goni, that the order passed by this Court requires to be given its true

effect and meaning in the circumstances of the case cannot be straightway brushed aside. I find from the record that the case had come up before

the Deputy Registrar and there appears some truth in the petitioner's contention that it was posted for 9-8-1993. This is evident from the over-

writing made in the date in the endorsement of the Deputy Registrar. Added to this is the factor that the reference was listed in the orders column

and was eventually finally disposed of by order dated 27-7-1993 in the absence of counsel for the petitioner or the petitioner. But, for the

petitioner's averment that oh the date it was listed i. e., 27-7-1993, his counsel was busy in a murder case, the circumstances surrounding the listing

would have created sufficient doubt adding a new dimension to the consideration for recall of the order.

Considering these circumstances it is not too much to presume that it has escaped the notice of this Court whether the Executive Magistrate

was required to be called upon to frame a new preliminary order while disposing of the reference. It cannot be overlooked that Full Bench of this

Court 1971 JKLR 414, has observed the defective preliminary orders passed in contravention of the provisions of Section 145 lead to the

invalidation of the proceedings but the test to be adopted in such cases is Whether or not the parties have been prejudiced by reason of such

irregularity or omission. If it is found that the preliminary order does not cause any prejudice and has not resulted in the miscarriage of justice and

the parties have gone through the trial knowing the nature and subject matter of dispute, the defect in the preliminary order becomes curable

necessitating a direction to the Executive Magistrate to frame a fresh order and to re-start proceedings depending upon his satisfaction.

The present case squarely falls in this category and even while accepting the recommendation of the learned Sessions Judge it was necessary to

direct the Executive Magistrate to frame a fresh preliminary order. This appears to be the purport of the order passed by this Court on 27-7-1993

though it has not been stated in so many words. Therefore, to give true effect and meaning to this order, the Executive Magistrate is required to be

directed to pass a fresh preliminary order in the matter. While doing so I am not either adding to the order or reviewing it in exercise of my inherent

power but only bringing out its real and true import in consonance with the legal position enunciated by the Full Bench of this Court in 1971 JKLR

414.

I order accordingly and direct the Executive Magistrate to pass a fresh preliminary order in consonance with the provisions of Section 145, Cr. P.

C. and if warranted by the facts and circumstances, to proceed in the matter in accordance with law. Till the matter is considered by him, status

quo shall prevail in respect of the land in dispute.

This also disposes of Cr. M. P. No. 236/93.