Subordinate Criminal Courts Lack Inherent Power to Recall Own Orders, Even if Erroneous: High Court under BNSS S.528 - 2024-10-24

High Court: Special Court Cannot Recall Own Order Releasing Passport, Even if Initial Release Was Unauthorised

Manjeri, Kerala – A learned single Judge of the High Court has ruled that subordinate criminal courts, including Special Courts, do not possess inherent powers to recall their own orders, even if the initial order was passed without jurisdiction. The High Court set aside a Special Court's order that had recalled its previous decision to release a passport, emphasizing that an illegality cannot be rectified by another illegality. The judgment was delivered in a criminal miscellaneous case filed under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023.

Case Background

The petitioner in the case is facing indictment under Sections 22(c) and 29(1) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The High Court had previously granted the petitioner statutory bail (Crl.M.C No.3491/2023), imposing several conditions, one of which was the surrender of his passport to the Special Court.

Following the High Court's directive, the petitioner surrendered his passport. Subsequently, he applied to the Special Court for SC/ST (POA) Act & NDPS Act Cases, Manjeri, for the release of his passport. On May 17, 2024, the Special Court allowed this application (Annexure 2 order), directing the passport's release. However, the Special Court later realised it lacked the authority to modify a bail condition imposed by the High Court, as the High Court's bail order did not grant the Special Court such power. Consequently, on July 23, 2024, the Special Court issued another order (Annexure 5), recalling its earlier decision to release the passport. This recall order was challenged by the petitioner before the High Court.

Arguments Presented

Sri. Jefrin Jose, counsel for the petitioner, argued against the Special Court's recall order. Sri. Noushad K.A. , the learned Public Prosecutor, represented the State.

The High Court acknowledged the petitioner's concession that the High Court, when granting bail, had not stipulated any provision allowing the Special Court to relax the imposed conditions. Therefore, any modification, including the release of the passport, could only have been permitted by the High Court itself. The petitioner had erroneously approached the Special Court, which initially, and without authority, allowed the passport's release.

Court's Analysis of Judicial Powers

The High Court's judgment centered on the powers of subordinate criminal courts to review, modify, or recall their own orders. The Court observed:

"True, the initial order directing release of the passport was legally without authority. Nevertheless, the impugned order recalling the earlier order is equally without legal authority. The order directing release of the passport was without authority, but it was not challenged. Without any challenge against it, the trial court could not have recalled its earlier order."

The Court elaborated that criminal courts within the District Judiciary (Sessions Courts, Magistrate Courts, and Special Courts) are not conferred with any inherent power of review, modification, or recall. It highlighted that even the High Court's inherent powers are restricted in this regard by Section 362 of the Code of Criminal Procedure (Cr.P.C.).

The judgment cited key Supreme Court precedents:

State of Punjab v. Davinder Pal Singh Bhullar and Others [2012 (1) KLT SN 10 (C.No. 12) SC = (2011) 14 SCC 770]: This case established that criminal courts have no power of review after a judgment is rendered, and an order, once passed, cannot be reviewed unless set aside by a competent court through prescribed legal means.

Bindeshwari Prasad Singh v. Kali Singh [(1977) 1 SCC 57]: Dealing with the Cr.P.C of 1898, the Supreme Court held that Magistrates have no jurisdiction to review or recall their orders, as inherent powers under the old Section 561A were conferred only upon the High Court. The remedy against an incorrect order by a Magistrate was to approach the Sessions Judge or High Court in revision.

Based on these principles, the High Court concluded:

"In view of the above propositions, it is explicit that the criminal courts of the District Judiciary cannot recall their earlier orders. An illegal order or an order without jurisdiction cannot be corrected by another illegal order or another order without jurisdiction. Resort to another illegality to rectify an earlier illegality cannot be undertaken."

The Court found that the Special Court, lacking any challenge to its initial (albeit erroneous) order releasing the passport, could not recall it on its own initiative.

Final Decision and Implications

The High Court allowed the criminal miscellaneous case, setting aside the Special Court's impugned order dated July 23, 2024 (in Crl.M.P No.14/2024 in S.C. No.539/2023).

This decision means that the Special Court's order recalling the passport release is nullified. Consequently, the initial order directing the release of the passport, though passed without proper authority, technically stands for the time being, as the method used to correct it was itself legally flawed. The judgment underscores the strict jurisdictional boundaries within which criminal courts must operate and clarifies that errors of jurisdiction by subordinate courts cannot be self-corrected through recall if no such power is explicitly granted by statute. The appropriate recourse against an illegal order is to challenge it before a higher judicial forum.