Sri. Umesh vs The State of Karnataka

Anand Byrareddy, J.—Heard the learned counsel for the petitioner and the respondent. This petition filed u/s 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.), seeking that the petitioner be enlarged on bail, was dismissed for default by an order dated 4/6/2013. It is thereafter that the present application to recall the order dated 4/6/2013 is filed. At the outset, it was noticed that, by virtue of Section 362 of the Cr.P.C., there was doubt expressed as to whether this court could review the order having dismissed the petition for default. In this regard, the learned counsel has placed reliance on two decisions of this court namely Madiah Vs. State of Mysore, and Ibrahimsab Vs. Faridabi, , to contend that that there is no bar to recall an order of dismissal for default though the inherent power of this court cannot be exercised in matters specifically covered by the provisions of the Code. Where the Code is silent about the power of the High Court in respect of any matter arising before it, it can pass suitable orders in exercise of its inherent powers to give effect to any order passed under the Code, or to prevent the abuse of the process of any Court or to secure the ends of justice, etc. Madaiah''s case was decided relying on Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another, , and the observations of the Supreme Court to the following effect have been extracted:

The inherent power conferred on High Courts u/s 561-A has to be exercised sparingly carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself.

His Lordship Gajendragadkar, J. who delivered the judgment of the Court laid down:

"This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the matter in question is not covered by any specific provisions of the Code that S. 561-A can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said section". The three purposes enumerated in the section are:

1) Where the High Court is satisfied that an order is necessary to give effect to any order passed under the Code;

2) or to prevent abuse of the process of any Court;

3) or to secure the ends of justice.

More particularly, it is also seen that from the earliest point of time, there has been a consistent view as for instance in the case of In Re: K. Kunhahamad Haji, , it has been held that when a criminal revision petition is dismissed for default of appearance, there is no decision on merits and therefore there is no proper disposal of it according to law and the court may re-hear the same.

As also in the case of AIR 1928 462 (Lahore) , it has been declared that there has never been an inherent power in the High Court to alter or review its own judgment once it has been pronounced or signed except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on merits.

As also in the case of AIR 1939 244 (Lahore) . A Full Bench decision of the Andhra Pradesh High Court in Public Prosecutor Vs. Devireddi Nagi Reddi, , where the entire case law has been reviewed on this aspect and with reference to T.H. Hussaian''s case which has been referred to by this court in Madaiah''s case, has laid down the law to the same effect in the following words:

No decision of the English Courts has been cited in support of the proposition that there is an inherent power in the Court to alter or review its own judgment on the ground that it is erroneous. The High Courts of Calcutta, Lahore and Patna have rightly held that there is no such inherent power in the High Court under Sec. 561-A to alter or review its own judgment once it has been pronounced, except in cases where it was passed without jurisdiction or in default of appearance, e., without affording an opportunity to the accused to appear - Vide Dahu Raut and Others Vs. Emperor, and Pem Mahton and another Vs. Emperor . To the same effect is the dissenting Judgment of Mootham C.J. in Raj Narain and Others Vs. The State, .

Consequently for the reasons assigned in the application, the order of dismissal is recalled. The petition is restored to file. Post before the Bench having the roster.