Bajrang Ram Bhadani vs Bharath Ram Razak, Mahabir Ram and Birju Ram

Madan Mohan Prasad, J.—This is an application in revision directed against an order by which a proceeding u/s 145 of the Code of criminal Procedure (hereinafter referred to as ''the Code'') has been dropped. It appears that on account of a dispute between the parties in respect of the possession of a wall a proceeding u/s 144 of the Code was started on the 14th of April, 1967 which was converted into one u/s 145 of the Code on the 31st of May, 1967. It appears next that on the 5th of February, 1970 the first party (petitioner) was absent and the second party though present took no steps. On that ground the learned Magistrate dropped the proceeding. An application was then filed on the 14th of March, 1970 by the petitioner stating that the apprehension of breach of peace was confirming and that the proceeding may be revived. The matter came up be-fore the learned Magistrate on the 16th of March, 1970 in the presence of both parties. At their request the matter was kept for hearing on the 2nd of April, 1970. On that date the second party absented themselves. The learned Magistrate revived the proceeding on the ground that it would be fair to both the parties and in the interest of justice as well as proper for the prevention of the breach of the peace. The parties then'' filed their show cause petitions their affidavits and documentary evidence and arguments for the parties were heard on the 13th of January, 1972. The learned Magistrate reserved the case for orders on the 29th January, 1972. He could not, however, do so on that date and went on postponing the matter until the 20th of April, 1972 on which date he dropped the proceeding. Hence this application.

Learned Counsel for the petitioner has urged that the order passed by the, learned Magistrate is illegal firstly, ''because he could not have dropped the proceeding on the ground alleged by him and secondly because he had no jurisdiction to sit in appeal over the order passed by his predecessor-in office. Both these contentions are well founded and must be accepted.

The only ground on which the learned Magistrate has dropped the present proceeding is that his predecessor-in-office had acted without jurisdiction in reviving the proceeding which had been dropped earlier. The learned Magistrate relied on a decision of this Court in (1) Jyotish Kotwal and others V. Dwarka Prasad Marwari and others reported in AIR 1967 patna 309. in that case the impugned order was the one, by which a proceeding u/s 145 of the Code dropped earlier had been revived. The learned Judge observed that the learned Magistrate could not have revived the proceeding on the same old material and further that whether the order by which the proceeding was dropped was right or wrong, once it had been passed the learned Magistrate had no right to revive it. In view of this decision the learned Magistrate in the instant case held the order restoring the proceeding to be without jurisdiction. It is amusing to find that the learned Magistrate had put himself into the same position in which this Court stands in relation to the Magistrate. If he were to follow the aforesaid, decision of this Court completely he would have realised that even he had no jurisdiction to sit in judgment over the order passed by his predecessor-in-office reviving the proceeding. That was an order which could have been challenged by the parties before this Court. It appears, however, that both the parties to this case were aware of the petition filed for restoration. It was with the consent of both the parties that the matter had been fixed for hearing on the 2nd of April, 1970. Neither of the parties went up to a superior court as against the aforesaid order dated the 2nd of April, 1970. Right or wrong, the order remained valid since it had not been set aside by a higher court. The learned Magistrate who passed the impugned order should have realised in view of the decision of this Court upon which he himself relied, that it was not for him to act as a court of appeal against the previous order or to review the aforesaid order. The learned Magistrate, therefore, acted beyond the jurisdiction vested in him by law.

The impugned order is bad on account of the other reason also. It is well settled that a proceeding u/s 145 of the Code having been started cannot be dropped unless the apprehension of breach of peace has ceased to exist. Id the present case all the materials were available to the learned Magistrate for passing a final order u/s 145(6) of the Code. He has refused to do so on the ground that the proceeding was without jurisdiction. Even if that be so, it was open to him to start a fresh proceeding. In any case, it was not open to him to drop the proceeding as he did.

Coming now to the question in respect of the legality of the order passed on the 2nd of April, 1970 it has to be stated that the order dated the 5th "of February, 1970 by which the proceeding was dropped was undoubtedly illegal. This was done merely because the parties were absent. In such a situation the Magistrate is bound to proceed with the case and not to drop the proceeding. If there are materials before the Magistrate he can proceed to pass an order under Sub-section (6) of Section 145 or he may pass an order u/s 146 of the Code. It is not open to him to drop the proceeding on the ground that the parties are not present in court. There are a number of decisions which support this view. In (2) Trilochan Das and another V. Jogeshwar Das AIR 1919 Pat 37 a Bench of this Court held that an order striking off a proceeding u/s 145 of the Code due to the absence of the party was without jurisdiction. In the case of (3) Himmat Mian and Others Vs. Emperor, it was held that under Clause (5) of Section 145 of the Code a Magistrate can drop the proceedings only on the ground that there existed no longer any apprehension of breach of peace. In (4) Venkategowda V. Appajigowda AIR 1952 Mys 4 the learned judge held that a Magistrate acts illegally in dropping the proceeding on a mere ground that both the parties are absent and that the proper order to be passed in such a case would be one u/s 146 and not u/s 145 (5) of the Code. Similar view was expressed by Tarkeshwar Nath, J. in (5) Miss Sharmistha Sinha Vs. Ram Chandra Sahay, . Another learned Judge of this Court Raj Kishore Prasad, J. held in the case of (6) Abhoypada Banerjee Vs. Dhanesh and Others, that a Magistrate acts illegally if he drops a proceeding u/s 145 on the ground that the applicant has not led evidence to prove that a dispute involving an apprehension of breach of the peace existed. There can thus be no doubt that the order dropping the proceeding on account of the absence of the parties passed on the 5th of February, 1970 was illegal.

The next question which arises is whether the order by which the proceeding was restored was illegal. Anant Singh, J. who decided the case (1) Jyotish Kotwal (Supra) held that the Magistrate could not revive the proceeding on the basis of the old report when there was no fresh material before him to suggest that there was any apprehension of the breach of the peace between the parties. He further held that if there was an apprehension of breach of peace the Magistrate could have drawn up a fresh proceeding but could not by any means revive the dead proceeding. With very great respect, I find that the learned Judge has not gone into the reasons which led him to the conclusion aforesaid. It is true that there is no provision in the Code of Criminal Procedure permitting a review by a criminal court of its own order. There is, however, a principle which is well established, namely, that every court by its very constitution has the right in its inherent jurisdiction to undo a wrong committed by it and to do the right. It is true that there is no provision saving the inherent powers of a court subordinate to the High Court in the Code of Criminal Procedure. That, however, does not mean that a criminal court on account of its very constitution and on account of the purpose for which it is constituted has no inherent powers at all. It is well established that a court shall not permit a wrong done by it. In suitable circumstances, therefore, it is open to a subordinate criminal court to undo a wrong. In other words, in suitable circumstances it is open to a criminal court to recall in order which has been passed by it for the purpose of doing justice between the parties, except, of course, where the Code itself either expressly or by implication prohibits such review or revision. For the view which I have taken I find support from the decisions of (7) Krushna Mohan and Others Vs. Sudhakar Das and Others, and (8) Shamshul Haq and others V. Civil Judge, Moradabad and another 1964 All LJ 668. This aspect of the matter does not appear to have been discussed in the judgment of the learned Judge. In that view of the matter, I am of opinion that it cannot be laid down as an axiomatic principle that no criminal court can review its own order in any circumstances whatsoever or that it cannot recall an order passed it earlier on any ground whatsoever.

Some cases which have come to my notice in respect of the point under consideration may be mentioned at this stage. In the case of (9) Gajo Chaudhry V. Debi Chaudhri AIR 1923 Pat 532 Kulwant Sahay, J. held that an entry in the order-sheet "Enter false mistake of law" was an order finally disposing of the case and had the effect of destroying the proceedings and a Magistrate had no jurisdiction to alter or review that order. In the case of (10) Rasik Tatma Vs. Bhagwat Tanti, a Bench of this Court held that an order acquitting an accused u/s 247 of the Code and was a final order and it could not be reviewed by the Magistrate subsequently. In the case of (11) Atal Bihari Singh V. State of Bihar 1972 Bih LJR 181 a Bench of this Court was called upon to consider the question as to whether an order dropping proceeding u/s 107 on the ground that the apprehension of breach of peace no longer existed was a final order and if the Magistrate had the jurisdiction to review or recall it. It was held that it was a final order and it could not be reviewed or recalled. It may be noted that in all these cases the court was concerned with the question of review or recall of a final order. It is well established that when a final order has been passed which has the effect of judicial determination of the rights of the parties, it cannot be reviewed except in accordance with the provisions of law. So far as a Criminal Court is concerned there is no such provision.

The question, however, has to be reviewed differently in a case where there is merely an interlocutory order or where there is no order finally determining a dispute. There are a number of decisions in which it has been held that if a complaint has been dismissed on account of the absence of the complainant the order can be recalled and the complaint restored because there has not been any final determination of the matter in question. I have taken the same view in the case of (12) Sheikh Mohiuddin and others V. The State of Bihar (Criminal Miscellaneous No. 2058 of 1972 disposed of on the 19th of April 1973). A reported case on the point it of (13) Prithvi Bhagat and Another Vs. Birju Sada, . Other cases on the point which may be referred to are (14) Rayappa and others V. Shivamma AIR 1964 Mys 1 and (15) Ram Narain Chaubey Vs. Panachand Jain, which was approved by the Supreme Court in (16) Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar, . It has also been held in several cases that an order of discharge can be recalled by a subsequent order. In the case of (17) Subhlal Gope V. The State of Bihar 1970 Pat LJR 444 an order of discharge of the accused in the absence of the complainant and the prosecution witnesses had been passed u/s 209 (2) of the Code. Subsequently the learned Magistrate reviewed that order and proceeded with an enquiry under Chapter XVIII of the Code. The question was whether the order of revival was a legal one. B. P. Sinha, J. held that the Magistrate had the jurisdiction to recall the order and continue the proceedings. A number of cases had been relied upon by the learned Judge in support of the view taken by him. The learned Judge held that the Magistrate had the power to undo the wrong by recalling the order of discharge passed by him.

Besides the case reported in(1) AIR 1967 Pat 309 (Supra)] a similar view has been taken in the case of (18) Babu Ram V. Ramji Lal reported in AIR 1961 P&H 444. In that case a proceeding u/s 145 of the Code bad been dropped on the ground of absence of the complainant. The learned Judge held that the Magistrate had no inherent power to review the order of dismissal and restore the application, because unlike a civil court a criminal court other than a High Court does not possess any inherent powers nor is there any provision in the Code for review of judgments or orders. With very great respect, it was not considered in this case whether a criminal court by virtue of the very purpose of its constitution has inherent powers. I may observe at this stage that even Section 561A of the Code does not bestow inherent powers on the High Courts; it merely saves the inherent powers which the Court possesses. Even so, Section 151 of the CPC does not confer inherent powers on courts but merely saves the powers which the court possesses. In order, therefore, to determine whether a court has inherent powers or not it is not necessary to find out a positive provision in a Code for that purpose. The courts must be deemed to have inherent powers to do the right and undo a wrong for the purpose of doing justice. In this case the learned Judge advanced another reason for holding that the order could not be reviewed and that is that Section 369 of the Code stands in the way. Section 369 applies to "judgments". A judgment, as is well established, indicates a final order in a trial terminating in conviction or acquittal so far as a criminal case is concerned (19) see AIR 1939 43 (Federal Court) and (20) AIR 1949 1 (Federal Court) . It means a final adjudication of the rights of the parties in respect of a civil case. An interlocutory order which does not determine finally the rights between the parties is not said to be a judgment. This aspect of the matter, with great respect, has not been considered by the learned Judge and the view expressed is, therefore, not acceptable to me.

Coming to the facts of the instant case the present case is distinguishable from the case which was before Anant Singh, J. inasmuch as the Magistrate had reviewed the proceeding on the basis of the old police report. In the instant case there was a fresh petition filed by the petitioner alleging the continuance of the apprehension of breach of peace and the necessity for continuance or revival of the proceeding, For that'' reason apart from the others mentioned earlier the Magistrate had revived the proceeding. If he bad only started a fresh proceeding no abjection at all could possibly have been taken to the Older. The learned Magistrate by way of other reasons held in the instant case that the revival order was also necessary for the purpose of doing justice between the parties settling the dispute at rest and for the purpose of avoiding a breach of the peace. If the petitioner had come up to this Court against the order dropping the proceeding which was illegal it would have obviously been set aside and the proceeding would not have been "destroyed". Instead of moving higher court the petitioner moved the Magistrate himself and he undid the wrong which he had done by passing the illegal order earlier. In special circumstances of this case, there'' fore, I do not think that the order by which he restored the proceeding was one without jurisdiction. It appears to be a proper exercise of the inherent power vested in a court to undo a wrong.

Assuming, however, that the order of restoration was not legal, the fact remains that the order was not challenged by either party. In fact, as stated earlier, the party concerned, namely, the opposite party, appears to have waived his objection inasmuch as the proceeding continued for more than two years until after the order of restoration and no such objection was raised and the parties went on prosecuting the matter on the supposition that it was a legally drawn up proceed ding. It has also to be recalled that the order of restoration was passed after giving due notice to the opposite party : who chose to absent themselves on the relevant date. The matter was, therefore, not decided either without notice and the proceeding did continue without any objection by them. For the learned Magistrate who passed the impugned order, therefore, it was absolutely unwarranted to sit in appeal over an order passed by his predecessor and almost set it aside by passing an order dropping the proceeding on account of the illegality committed by hit predecessor. In the result, I find that the order passed by the learned Magistrate on the 20th of April, 1972 dropping the proceeding on the ground mentioned therein cannot be upheld. It is accordingly set aside and the matter is remitted to the learned Magistrate for passing an order in accordance with law.