Mohd. Rajab Baigh vs Ghulam Mohd. Bhat

G.A. Kuchhai, J.—This application u/s 561-A Cr. PC has been filed against an order passed by this Court on 14-3-1991 in 561-A Cr. PC

proceedings titled Ghulam Mohd Bhat v. Mohd Rajab Baigh (22/89). To dispose of the matter properly, I propose to give brief facts which have

given rise to this application u/s 561-A Cr. PC.

The petitioner in these proceedings appears to have lodged a complaint before the trial Magistrate regarding theft of vehicle Matador No. 1356-

JKE. The trial Magistrate, appears to have issued orders u/s 202 Cr. PC for enquiry by the concerned police station. A report appears to have

been submitted to the Magistrate, who considered the report of the police and disposed of the complaint in accordance with Section 203 Cr. PC.

The petitioner, feeling aggrieved of the order, filed a revision petition before the revisional Court. The revisional Court (III Additional Sessions

Judge, Srinagar), after hearing the parties, setaside the order and issued a direction to the trial Magistrate to make fresh enquiry. At this event the

respondent herein got aggrieved and he filled an application u/s 561 -A Cr. PC before this Court for quashing the order of the revisional court.

This Court issued notice to the parties. The petitioner in this petition despite having appeared, did not choose to appear at the hearing stage,

resulting in an ex parte order in the application u/s 561 -A Cr. PC restoring the order passed by the trial Magistrate dismissing the complaint u/s

203 Cr. PC. After some time, the petitioner again rose his head before this Court and has filed these proceedings u/s 561-A Cr. PC for quashing

or in alternative, reviewing the order passed by this Court in ex parte on application u/s 561-A Cr. PC filed by the respondent. It is this way that

the matter has come up for hearing before the Court.

I have heard learned Counsel for both the parties.

Mr. Shah appearing for the petitioner submitted that the original petition by the respondent u/s 561 -A Cr. PC was not maintainable before this

Court and this Court had no jurisdiction to entertain such application because of the fact that the respondent had no cause at any point of time to

approach the Court. No process by the Magistrate u/s 204 Cr. PC was issued as the complaint had at the threshold, on receiving the report from

police concerned, been dismissed u/s 203 Cr. PC. It was the petitioner who approached the revisional court and the revisional court gave a

direction to the trial Magistrate to make a fresh enquiry in the matter without issuing notice to the respondent for the cause in question on merits,

except for disposal of the revision petition. The learned Counsel for the petitioner to support his arguments referred to Section 561-A Cr. PC

which for facility of ready reference is quoted hereunder:--

561-A. Saving of inherent power of High Court:-- Nothing in this Code shall be deemed to limit or affect 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.

The learned Counsel for the petitioner, without touching the facts that the petitioner has been proceeded ex parte, has stressed on the provision

while referring to the powers of the Court to prevent abuse of the process of any Court or otherwise to secure the ends of justice'. Learned

Counsel argued that once no process, whatsoever, or any order by any Court was passed against the respondent, he had no right in law to

approach this Court u/s 561 -A Cr. PC for want of any order or process against him. Mr. Shah argued that Section 561-A Cr. PC is wide enough

to accommodate and applies to the process or orders of this Court also. He, therefore, argue that proceedings u/s 561 -A Cr. PC entertained by

this Court at the instance of the respondent is not maintainable under the relevant provision of law quoted above. He argued that the order under

law is a nullity because this Court had no power to maintain the petition u/s 561-A CR. PC filed by the respondent for the reason that respondent

was not touched by any Court by any order.

Mr. Azhar-ul-Amin, Learned Counsel for the respondent, while replying the arguments, submitted that the vehicle in question is owned by the

respondent and during the proceedings u/s 202 Cr. PC the vehicle was seized and it gave cause to the respondent to approach this Court because

under the orders of the revisional court the vehicle remained seized which gave rise to the application u/s 561-A Cr. PC at his instance decided by

this Court and challenged now by the petitioner. Learned Counsel for the respondent submitted that no Criminal Court, muchless the High Court,

has power to review its order passed in criminal proceedings like the one in hand and the petition filed by the petitioner u/s 561-A Cr. PC against

the order deserves to be dismissed without any further order and the order passed by this Court needs to be confirmed. Mr. Azhar submitted

review or modification of the order, in. whatever manner sought to be exercised, are not within the competence of the Court in criminal

proceedings. He firstly referred to Section 369 of the Code of Criminal Procedure, which for facility of ready reference, is quoted 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 ease 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.

Then, in support of his arguments, he referred to a Full Bench judgment of this Court reported in 1981 SLJ 446 : AIR 1982 141, where their

lordships have observed as under:--

Our High Court like other High Courts of India has no power given to it by the instrument constituting it to alter or review a judgment passed in

exercise of the criminal jurisdiction. I say so because our High Court is a creature of the State constitution called the Constitution of Jammu and

Kashmir and there is nothing in the State Constitution to show that the High Court has power to alter or review its own judgment passed in

exercise of the criminal jurisdiction.

The argument of the learned Counsel under the law referred to and under the citation appear apparently attractive and worth consideration, but

while going through the judgment, the other side of the observation made by their lordships is in these words:--

The question arises whether the bar against alteration or review would be applicable where the decision is a nullity. It seems to us that if there is no

decision because it is a nullity, the bar cannot operate. Cases are conceivable where the order passed in appeal or revision is a nullity not because

of any procedural non-compliance by the Court of appeal or revision, which goes to the root of the matter, but because the order passed by the

trial Court itself is found to be a nullity. That may be so where the trial Court has passed the order in violation of principles of natural justice and the

appellate or revisional Court had no jurisdiction of its own to make an order but its jurisdiction is only to confirm or set aside the order of the trial

court. In such cases the order passed in appeal or revision would be a nullity because in law the order of the trial court will be deemed to be

nonexistent and it would follow that there was no order which the appellate Court or the revisional Court would confirm or set aside.

Their lordships have made power of Section 561 -A Cr. PC an exception to the Rule laid down, that on fulfilling the condition if the judgment is a

nullity, that is where the argument of learned Counsel for the petitioner comes in. The case of the petitioner being that this Court had no jurisdiction

to entertain the petition u/s 561 -A Cr. PC against the order passed by the revisional court at the instance of the person against whom no order

was passed, no process was issued and no where the party was touched rather being absent from the picture of the proceedings. That way the

respondent had no cause to knock the door of this Court u/s 561-A Cr. PC.

Whatever may be the merit of the order passed by this Court in the earlier 561-A Cr. PC petition, I need not go into the same, whether ex

parte, contested or passed on cogent reasons. The only point involved and raised before this Court in these 561 -A Cr. PC proceedings is that the

earlier proceedings were not maintainable and once the earlier proceedings were not maintainable, the order passed consequent to that was a

nullity. Keeping in view the law on the subject and the citation quoted above, I am of the opinion that 561-A Cr. PC proceedings will lie only at the

hands of a person against whom process in any criminal matter is issued or any order is passed against him or he is in any way made part of the

proceedings in order to drag him in the criminal litigation. In the case in hand, a complaint was lodged and the complaint has been dealt with u/s

202 Cr. PC which was finally disposed of as not made out by the trial Magistrate. The respondent was eliminated from the proceedings at that

very stage and he had no locus stand to approach any court of law, because he was not in picture at that time. The other party went to the

revisional court. The revisional court having jurisdiction to hear the revision petition, did pass orders and directed the trial Magistrate to get fresh

enquiries made. If the fresh enquiry would involve any person, including the respondent, he had cause to go to the court and before that situation

would rise, the respondent prematurely, in a hot haste, approached this Court and, the petitioner herein being proceeded ex parte, stressed the

facts and the circumstances which warranted to entertain the 561 -A Cr. PC proceedings and pass the order in challenge now at the instance of

the present petitioner. Whatever may be the situation regarding merits and rights of the parties, 1 am of the firm opinion that the earlier proceedings

u/s 561-A Cr. PC at the instance of the respondent were not maintainable and have also been dealt with in ex parte, without exploitation of the

relevant provision of 561-A Cr. PC.

Keeping in view the observations made above, the application u/s 561-A Cr. PC filed by the petitioner is allowed and the earlier order dated

14-3-1991 passed on the application u/s 561 -A Cr. PC at the instance of the respondent is recalled as hot being in accordance with the provision

of 561-A Cr. PC. The earlier proceedings u/s 561-A Cr. PC at the instance of the respondent stand rejected as not maintainable.

The petition is disposed of. in terms of above. Record, if called for, be returned to the Court concerned for action, if any required under law.

File be consigned to records.