KRUSHNA MOHAN Vs. SUDHAKAR DAS

JUDGEMENT

(1.) THIS is a revision petition against an order dated 8 -2 -52 passed by Mlv. S. Ali, a 1st Class Magistrate of Cuttack, in a proceeding under Section 145, Criminal P. C. The petitioners were the second party in that proceeding, the opposite party being the first party. The proceeding was initiated by the Subdivisional Magistrate on 11 -1 -50 on the basis of a police report and the usual notices to both parties were directed to issue. On 15 -3 -50 both parties appeared before the Court and the first party filed their written statement on the same date whereas the second party filed their written statement on 6 -4 -50. The case was then transferred to the file of Sri N. N. Mitra, Magistrate 1st Class for disposal. After some adjournments the case was fixed for hearing on 10 -3 -51 on which date the first party were absent. The learned Magistrate then passed the following order :

(2.) THUS the sole question for decision in this revision petition is whether an 'ex parte' order passed by a Magistrate under Sub -section (6) of Section 145, Criminal P. C. after the valid service of notices on both parties as required by Sub -section (1) of that section can be revised by him subsequently. The answer to this question will depend on two considerations. Firstly, if that order is a 'judgment' within the meaning of Section 359. Criminal P. C. the Court has obviously no jurisdiction to revise the order. Secondly, even if it be held to be not a 'judgment' within the meaning of Section 339, Criminal P. C. has the Court inherent powers to review and revise its order under Sub -section (6) of Section 145, Criminal P. C. on the ground that it was passed 'ex parte'.

(3.) THE next Question is whether a Magistrate has inherent powers to set aside an 'ex parte' order for adequate reasons. It is true that the Criminal Procedure Code does not contain any express provision like Section 151, Civil P. C. recognising the existence of inherent powers in subordinate. Courts. Section 561A is limited, in terms, to the inherent powers of a High Court. But there is sufficient authority for the view that even subordinate Criminal Courts have inherent powers of a limited extent. Thus in - - 'Achambit v. Mahatab Singh', AIR 1915 Cal 119 (G), an order of acquittal passed by a Magistrate under Section 247, Criminal P. C. was subsequently set aside by the same Magistrate on the ground that it was a nullity and the High Court held that the Magistrate acted within his jurisdiction. Similarly, in - - 'Lalit Mohan v. Noni Lal', AIR 1923 Cal 662 (H), an order directing the issue of process under Section 204, Criminal P. C. was subsequently cancelled by the same Magistrate who directed a local enquiry under Section 202, Criminal P. C. and the High Court held that inasmuch as the said order was not a 'judgment' within the meaning of Section 369, Criminal P. C. 'there is nothing in the Code which forbids a Magistrate to reconsider an order of this kind on sufficient grounds.' These two decisions were relied upon by the Patna High Court in - - 'Asst. Govt Advocate v. Upendra Nath', AIR 1931 Pat 81 (I) in support of the view that even subordinate Criminal Courts have some sort of inherent powers. But it was emphasised that 'inherent power cannot be Invoked on a point where the Code has made express provision'. In - - 'Nalluswami Reddi v. Nallammal', AIR 1943 Mad 392 (J) also it was recognised that though Courts subordinate to the High Court have no Inherent jurisdiction to review their judgments they have such inherent powers in a few circumstances such as where there has been abuse of the process of Court or fraud played upon the Court. In a Calcutta case reported in - - 'Kali Charan v. Abdul Laskar', AIR 1920 Cal 541 (2) (K), the High Court held that where an 'ex parte' order under Section 145(6), Criminal P. C. was passed by a Magistrate without due service of the preliminary notice required by Sub -section (1) of that section on one of the parties the Magistrate ought to have revised that order on the application of the party and examined the question as to whether there was, in fact, due service of notice on that party. I would, therefore, take the view that even subordinate Criminal Courts have limited inherent powers and in exercise of those powers, they may review and revise their orders for the ends of justice except in those cases where the Code itself either expressly or by necessary implication prohibits such review or revision and confers on the order some kind of finality until it is set aside by the superior Courts in appeal or revision.