Karnataka High Court
Sri. Umesh vs The State Of Karnataka on 6 January, 2014
Author: Anand Byrareddy
Bench: Anand Byrareddy
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®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF JANUARY 2014
BEFORE
THE HON'BLE MR.JUSTICE ANAND BYRAREDDY
CRIMINAL PETITION NO.2464 OF 2013
BETWEEN:
Sri. Umesh,
Aged about 26 years,
Son of Nagegowda @ Naganna,
Resident of No.102, Adarsha Nilaya,
5th Main, D Cross,
Byatarayanapura New Extension,
Mysore Road, Bangalore - 560 064.
...PETITIONER
(BY SRI. D.S. HOSMATH, ADVOCATE)
AND:
Subramanya Police Station,
The State of Karnataka,
Represented by State Public Prosecutor,
High Court Building,
Bangalore - 560 001.
... RESPONDENT
[GOVERNMENT PLEADER FOR RESPONDENT) [[ This Criminal Petition filed under Section 439 Code of Criminal Procedure, 1973, by the Advocate for the petitioner praying to enlarge the petitioner on bail in Crime No.326/2012 of Subramnyanagar Police Station, Bangalore City, for the offences punishable under Section 397 of IPC.
This Criminal Petition coming on for Orders this day, the court made the following:
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® Crl.P.No.2464/13 ABJ:
06/01/2014 ORDER ON I.A.2/13 Heard the learned counsel for the petitioner and the respondent. This petition filed under Section 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 MADAIAH VS. STATE OF MYSORE1 and 1 AIR 1963 Mysore 191 3 IBRAHIMSAB VS. FARIDABI2, 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 T.H.Hussain vs. M.P.Mondkar3, and the observations of the Supreme Court to the following effect have been extracted:
"The inherent power conferred on High Courts Under Section 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."2
ILR 1986 KAR 2251 3 AIR 1958 SC 376 4 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 enumerate d 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."5
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 KUNHAMMAD HAJI VS. EMPEROR4, 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 RAJU AND ANOTHER VS. EMPEROR5, 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.
4 AIR 1923 Mad 426 5 AIR 1928 Lahore 462 6 As also in the case of EDWARD FEW VS. EMPEROR6. A Full Bench decision of the Andhra Pradesh High Court in PUBLIC PROSECUTOR, ANDHRA PRADESH VS. DEVIREDDI NAGI REDDY7, 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 6 40 Cr.L.J. 1939 7 AIR 1962 Andhra Pradesh 479 (V 49 C 126) Full bench 7 opportunity to the accused to appear - Vide Dahu Raut v. Emperor, ILR 61 Cal 155: (AIR 1933 Cal 870), ILR 10 Lah I: AIR 1928 Lah 462 and Pem Mahton v. Emperor, ILR 14 Pat 392: (AIR 1935 Pat 426). To the same effect is the dissenting judgment of Mootham C.J. in Raj Narain v. State, AIR 1959 All 315 (FB).".
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.
SD/-
JUDGE Rd/-