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1973 Supreme(Pat) 85
HIGH COURT OF PATNA
MADAN MOHAN PRASAD, J.
Bajrang Ram Bhadani – Petitioner
Versus
Bharath Ram Razak & others – Opposite Party
Criminal Revision No. 1244 of 1972
Advocate Appeared:
For the Petitioner: M/s Braj Kishore Prasad No. 2 & Yogesh Chandra Verma.
For the Opposite Party: Mr. B.N. Sharan.
Headnote:I. Code of Criminal Procedure (Act V of 1898)–Section 145 (6)–Both parties absent–Magistrate dropping the proceeding–legality of.
Where the Magistrate in the absence of the parties to the proceeding dropped the same.
Held that the order of the Magistrate dropping the proceeding was illegal. A.I.R. 1919 Pat 37, A.I.R. 1918 Pat 500, A.I.R. 1952 Mysore 4, A.I.R. 1965 Pat 409 Relied on.
(Para 6)
II. Code of Criminal Procedure (Act V of 1898)–Section 369–Magistrate dropping the proceeding u/s 145–Subsequent application for review of the order–Magistrate whether has inherent power to review his own order.
Where the proceeding u/s 145 Cr. P.C. was dropped but on the application of the parties the Magistrate revived the same presumably under its inherent powers.
Held that, it is true that there is no provision in the Code of Criminal Procedure permitting a review by a Criminal Court of its own order. There is however a principle which is well established, namely, that every court by its very constitution has the right in its inherent jurisdiction to undo a wrong committed by it and to do the right. It is true that there is no provision saving the inherent powers of a court subordinate to the High Court in the Code of Criminal Procedure. That however does not mean that a Criminal Court on account of its very constitution and on account of the purpose for which it is constituted has no inherent powers at all. It is well established that a court shall not permit a wrong done by it. In suitable circumstances, therefore, it is open to a subordinate Criminal Court to undo a wrong. In other words, in suitable circumstances it is open to a criminal court to recall an order which has been passed by it for the purpose of doing justice between the parties, except, of course, where the Code itself either expressly or by implication prohibits such review or revision. 1953 Orissa 281, 1964 A.L.J. 668 Relied on A.I.R. 1967 Pat 309 distinguished.
(Para 7)
Code of Criminal Procedure (Act V of 1898)–Section 145 (6)–Magistrate dropping the proceeding–Successor Magistrate reviving the same with the consent of parties–All the materials to decide the S. 145 proceeding being on record–order of Magistrate dropping the proceeding without holding that the apprehension of breach of peace has ceased to exist–Order whether without jurisdiction.
Held that it was not proper for the Magistrate who was successor in office to act as a court of appeal against the previous order or to review the aforesaid order. The learned Magistrate therefore acted beyond the jurisdiction vested in him by law.
(Para 4)
Held further that a proceeding u/s 145 having been started can not be dropped unless the apprehension of the breach of peace has ceased to exist. All the materials were available to the learned magistrate for passing a final order u/s 145 (6) of the Code. He should not have refused to do so on the ground that• the proceeding was without jurisdiction. Even if it was so, it was open to him to start a fresh proceeding and in any case it was not open to him to drop the proceeding. A.I.R. 1918 Pat 500, A.I.R. 1962 Pat 415 Relied on.
(Para 5)
MADAN MOHAN PRASAD, J.
1. This is an application in revision directed against an order by which a proceeding under section 145 of the Code of Criminal Procedure (hereinafter referred to as 'the Code') has been dropped.
2. It appears that on account of a dispute between the parties in respect of the possession of a wall a proceeding under section 144 of the Code was started on the 14th of April 1967 which was converted into one under section 145 of the Code on the 31st of May, 1967. It appears next that on the 5th of February, 1970 the first party (petitioner) was absent and the second party though present took no steps. On that ground the learned Magistrate dropped the proceeding. An application was then filed on the 14th of March, 1970 by the petitioner stating that the apprehension of breach of peace was continuing and that the proceeding may be revived. The matter came up before the learned Magistrate on the 16th of March, 1970 in the presence of both parties. At their request the matter was kept for hearing on the 2nd of April, 1970. On that date the second party absented themselves. The learned Magistrate revived the proceeding on the ground that it would be fair to both the parties, in the interest of justice as well as for the prevention of the breach of the peace. The parties then filed their show cause petitions their affidavits and documentary evidence and arguments for the parties were heard on the 13th of January, 1972. The learned Magistrate reserved the case for orders on the 26th January, 1972. He could not, however, do so on that date and went on postponing the matter until the 20th of April, 1972 on which date he dropped the proceeding. Hence this application.
3. Learned counsel for the petitioner has urged that the order passed by the learned Magistrate is illegal firstly because he could not have dropped the proceeding on the ground alleged by him and secondly because he had no jurisdiction to sit in appeal over the order passed by his predecessor-in-office. Both these contentions are well founded and must be accepted.
4. The only ground on which the learned Magistrate has dropped the present proceeding is that his predecessor-in-office had acted without jurisdiction in reviving the proceeding which had been dropped earlier. The learned Magistrate relied on a decision of this Court in Jyotish Kotwal & other vs. Dwarka Pd. Marwari, A.I.R. 1967 Pat 309. In that case the impugned order was the one by which a proceeding under section 145 of the Code dropped earlier had been revived. The learned Judge observed that the learned Magistrate could not have revived the proceeding on the same old material and further that whether the order by which the proceeding was dropped was right or wrong, once it had been passed the learned Magistrate had no right to revive it. In view of this decision the learned Magistrate in the instant case held the order restoring the proceeding to be without jurisdiction. It is amusing to find that the learned Magistrate had put himself into the same position in which this court stands in relation to the Magistrate. If he were to follow the aforesaid decision of this Court completely he would have realised that even he had no jurisdiction to sit in judgment over the order passed by his predecessor-in-office reviving the proceeding. That was an order which could have been challenged by the parties before this Court. It appears, however, that both the parties to this case were aware of the petition filed for restoration. It was with the consent of both the parties that the matter had been fixed for hearing on the 2nd of April, 1970. Neither of the parties went up to a superior court as against the aforesaid order dated the 2nd of April, 1970. Right or wrong, the order remained valid since it had not been set aside by a higher court. The learned Magistrate who passed the impugned order should have realised in view of the decision of this Court upon which he himself relied, that it was not
