DEV KARAN Vs. STATE

JUDGEMENT

(1.) This is a criminal Misc. application filed by the petitioner for recalling the order passed by this Court in S.B. Cr. Revision Petition No. 129/91 dismissing the revision filed by the petitioner against his conviction for the offence under section 7 read with S. 16 of the Prevention of Food Adulteration Act upheld by the Sessions Judge, Tonk The revision petition was heard on 8th July, 91 and was dismissed on merits.

(2.) In this Misc. application, it has been stated that one of the points urged before this Court during the course of arguments in the revision was that under section 16(A) of the Prevention of Food Adulteration Act, it has been provided that all cases under that Act will be tried summarily by the Magistrate empowered by the State Government. The petitioner was tried for the offence treating the case as a warrant case and as such, the trial was illegal. It has further been stated that when the revision petition was argued, the notification dated 5th March, 1977, issued by the State Government under section 16(A) of the Prevention of Food Adulteration Act, 1954 was not available and the counsel for the petitioner was under an impression that there was no dispute before the court as to whether any notification under section 16(A) had been issued or not. Now the petitioner had filed along with his application, a notification dated 5th March, 77 issued by the State Government whereby the State Government empowered all Chief Judicial Magistrates, Addl. Chief Judicial Magistrates and Munsif-cum-Judicial Magistrates functioning at sub divisional headquarters to try summarily offence under sub-section (1 of S. 16 of the Act. It is, therefore, said there has been a factual error apparent on the fact of the record in this Courts order dated 8th July 91 passed in the revision. The petitioner has, therefore, prayed that the revisional order dated 8th July, *91, passed by this Court, may be recalled and the revision be heard afresh and thereafter, order as may be deemed just and proper, be passed.

(3.) The first question that arises is whether such an application is maintainable in law for recalling this Courts revisional order dated 8th July, 91 passed on its merits. In this connection, the learned counsel for the petitioner has referred to some reported decisions including some decisions of this Court. The first decision relied upon by the learned counsel for the petitioner is in State of Bombay Vs. Nilkanth Shripad Bhave & anr. (AIR 1954 Bombay 65 ). In that case, the matter before the Bombay High Court was an application by the State of Bombay to expunge certain remarks made by Sessions Judge, North Satara while dealing with a bail application. The remarks that were made by the Sessions Judge were about ;he Magistrate before whom the case was pending. The question before the full Bench of the Bombay High Court was whether there was any jurisdiction in the High Court to entertain such type of application. Their Lordships held that in such types of cases, the High Court could exercise inherent powers under section 561A of the old Code. Their Lordships relied upon two decisions of the Privy Council in Emperor Vs. Nazir Ahmed AIR 1945 PC 18 ); and Jairam Das Vs. Emperor (AIR 1945 PC 94 ) wherein the view had been taken that S. 561 A of the old Code merely safeguards all powers which already existed in the High Court. S. 561 A gives the power to the High Court to make such orders as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It was of the view that High Court has the widest jurisdiction to pass orders to secure the ends of justice and that S. 561A of the old Code must give the power to High Court to entertain applications which are not contemplated by the Cr. P.C. Therefore, if the High Court feels that ends of justice require that an order should be made in an application, although the application is not contemplated by the Cede, the High Court will entertain the application and make the necessary orders to secure the ends of justice. It was further laid down that inherent powers which the High Court possess is, in proper cases, even though no appeal or revision may be preferred to the High Court, to judicially correct the observations of the lower Court by pointing out that the observations made by the Magistrate were not justified or were without any foundation or were wholly wrong or improper. Expunging of remarks font a judgment constitutes the inherent power of any superior court and, therefore, it is also inherent power of the High Court. It would appear from going through this judgment that the precise question before the Bombay High Court was, whether the High Court has jurisdiction under its inherent powers to expunge the remarks made by the Sessions Judge about the Magistrate before whom criminal case was pending. No effective order had been passed by the sessions Judge which could be complained of by any party nor was there any finding given by the Sessions Judge which could be challenged before the High Court. In such circumstances, it was held that the High Court had inherent powers to entertain an application to expunge the remarks made by the subordinate Court if the ends of justice so required. It was clarified that the inherent jurisdiction is not intended to substitute the opinion of the High Court or the opinion of the lower Court. In the present case, the application is not for expunging any remark made by a subordinate Court.