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IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR
SANJAY DHAR, J.
Feroz Ahmad Zargar & Others – Appellant
Versus
Ut of J&K And Others – Respondent
CRM(M) No.463 of 2024
Decided on : 01-03-2025
(A) Code of Criminal Procedure, 1973 - Section 362 - Jurisdiction of criminal court to review its own orders - The trial court's recall of its orders directing the shifting of custody of petitioners was challenged, as it lacked jurisdiction to review its own final orders. (Paras 12, 14)
(B) Preventive Detention - The court held that once preventive detention orders expire, custody should be governed under Section 309 of Cr. P.C. (Paras 9, 10)
Facts of the case:
The petitioners challenged the trial court's order allowing recall of custody orders while facing trials for serious offences, including under the IPC and ULAP Act. (Paras 1, 2)
Findings of Court:
The trial court's order was set aside as it was not legally permissible to recall its own orders, which contravened established legal principles. (Paras 14, 15)
Issues: The main issue was whether the trial court had the authority to recall its own orders regarding custody. (Para 8)
Ratio Decidendi: The court reaffirmed that a criminal court does not possess the power to review its own orders, as per Section 362 of the Cr. P.C. and the Supreme Court's ruling in Adalat Prasad vs. Rooplal Jindal. (Paras 12, 14)
Result: The impugned order was set aside.
JUDGMENT :
1) The petitioners have challenged common order dated 02.02.2024, passed by Special Judge Designated under N.I.A. Act, Anantnag,(hereinafter referred as the “trial court”) whereby the said Court has allowed the application of the respondents for recall of orders dated 11.08.2023, 31.08.2023 and 17.08.2023 passed in three different cases arising out of three different FIRs in which the petitioners are facing trial before the said Court.
2) It appears that petitioners No.1 and 2 are facing trial before the learned trial court in a case arising out of FIR No.514/2021 for offences under Section 307 IPC, 7/25 Arms Act, 18, 20, 38 ULAP Act registered by P/S Anantnag. Similarly, petitioners No.3, 4 and 5 are facing trial in a case arising out of FIR No.98/2020 for offences under Section 19, 20, 38 and 39 of ULAP Act registered with P/S Dooru Anantnag. Petitioner No.6 is stated to be facing trial in FIR No.27/2021 for offences under Section 7/25, 27 Arms Act, (cid:190), 5, 6 Explosive Substances Act and 307, 427 IPC registered with P/S Bijbehara. It also appears that during the pendency of the trial, petitioner No.1 was detained under Public Safety Act in terms of order No.1/DMA/PSA/DET/2022 dated 06.04.2022, petitioner No.2 was detained under Public Safety Act in terms of order No.12/DMA/PSA/DET/2022 dated 10.04.2022, petitioner No.3 was detained in terms of order detention order No.26/DMA/PSA/DET/2021 dated 30.06.2021, petitioner No.4 was detained in terms of detention dated 08.04.2021, petitioner No.5 was detained by virtue of detention order No.27/DMS/PSA/DET/2021 dated 30.06.2021 and petitioner No.6 was detained under Public Safety act in terms of order No.21/DMA/PSA/ DET/2021 dated 27.05.2021. After the passing of these detention orders, the custody of the petitioners was shifted to different jails in the State of Uttar Pradesh.
3) The record further reveals that during pendency of the trial, the order of detention of petitioner No.1 was quashed by this Court in terms of judgment dated 20.04.2023 passed in WP(Crl) No.219/2022, the detention order in respect of petitioner No.2 was quashed by this Court in terms of judgment dated 18.05.2023 passed in WP(Crl) No.150/2022, detention order of petitioner No.3 was quashed by this Court in terms of judgment dated 04.08.2022 passed in WP(Crl) No.100/2021, detention order of petitioner No.5 was quashed by this Corut in terms of judgment dated 08.07.2022 passed in WP(Crl) No.110/2021 whereas detention orders of petitioners No.4 and 6 came to an end upon their expiry.
4) After the quashment/expiry of the detention orders of the petitioners, they filed applications before the trial court seeking change of their custody back to the judicial custody. The said applications were allowed by the trial court in terms of three different orders passed in three separate cases in which the petitioners are facing trial. By virtue of these three orders, a direction was issued to Superintendents of District Jails of the State of UP where the petitioners were lodged to handover their custody to Superintendent of District Jail, Mattan Anantnag. These orders came to be passed on 11.08.2023, 31.08.2023 and17.08.2023.
5) The aforesaid three orders came to be challenged by the respondents before the trial court by filing an application for recall of the orders on the grounds that the learned trial, while passing direction for shifting of custody of the petitioners, had relied upon judgment of a Single Judge of this Court in the case titled “Nayeem Rasool vs. UT of J&K & Ors.” (WP(C) No.1991/2022 decided on 27th April, 2023), which has been stayed by Division Bench of this Court vide order dated 10.07.2023 passed in LPA No.115/2023. The learned trial court allowed the recall application of the respondents by virtue of the impugned order thereby rescinding the aforesaid three orders passed by it whereby custody of the petitioners had been directed to be shifted back to District Jail, Anantnag.
6) Heard and c
AI
A criminal court lacks jurisdiction to review its own final orders, as established by Section 362 of the Cr. P.C. and affirmed by the Supreme Court.
A court cannot review its own judgment once signed, except to correct clerical errors, and inherent powers to recall judgments are limited to jurisdictional errors or violations of natural justice.
The High Court lacks the power to review or recall its orders after they have been signed, as it becomes functus officio and such actions are barred under Section 362 of the Criminal Procedure Code.
The court can exercise its inherent power to recall an order if it was obtained by abuse of the process of court and had become a nullity in the eye of the law.
Criminal courts lack authority to recall their own orders; an illegal order cannot be corrected by another illegal order.
The court clarified that a dismissal for default does not amount to a final order, allowing recall and reinstatement for hearings on merits under inherent powers of the High Court.
Criminal courts lack inherent power to modify or recall their orders, and an illegal order cannot be corrected by another illegal order.
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