ORDER
D.D. Seth, J.
1. Criminal Misc. Application No. 1466 of 1968 has been filed under Section 561-A, Criminal Procedure Code, by Chitawan and others praying that the application be allowed and Criminal Reference No. 210 of 1967, which has been made to this Court by the learned Civil and Sessions Judge, Allahabad, and which had been accepted by me, by my order dated 5th April 1968, be reheard.
2. On 5th April 1968, after hearing the learned Counsel for the parties, I had accepted Criminal Reference No. 210 of 1967 made to this Court by the learned Civil and Sessions Judge, Allahabad and had set aside the order of the learned Sub-Divisional Magistrate, Phulpur, dated 31st December 1966, releasing the land in dispute in favour of Chitawan and others and ordered the property to be released in favour of Mahboob Ilahi. Criminal Misc. Application No. 1466 of 1968 made under the provisions of Section 561-A, Criminal Procedure Code, was filed in this Court on 15th April 1968.
3. The facts of Criminal Reference No. 210 of 1967 were that Mahboob llahi and some other persons had filed an application under Section 145, Criminal Procedure Code, in the Court of the learned Sub-Divisional Magistrate, Phulpur stating they were in possession of the land in dispute along with seven Neem trees and two huts standing thereon and since Chitawan and others were trying to interfere with their possession there was an apprehension of breach of peace. The learned Sub-Divisional Magistrate had called for a report from the police authorities and the Station Officer of Phulphur, on 8th September 1966, reported that there was an apprehension of breach of peace between the parties on account of the dispute regarding the land. On getting the police report the learned Sub-Divisional Magistrate passed a preliminary order under Section 145, Criminal P. C, on 12th September 1966 and the land in dispute was attached on 26th September 1966. The learned Magistrate also directed the parties to file their written statements, affidavits and such other evidence in support of this respective cases as they deemed necessary.
4. Accordingly the parties filed their written statements. On behalf of Mahboob Ilahi affidavits of Mahboob Ilahi, Murli Dhar, Bihari Lal, Abdul Majeed, Bafati and Anurudh Narain Singh were filed and on behalf of Chitawan and others affidavits of Chitawan, Mohammad Abbas, Dost Mohammad and Baij Nath were filed. Mahboob Ilahi and others filed two documents also in support of their case.
5. The learned Sub-Divisional Magistrate, after hearing the parties and, after considering the oral and documentary evidence on record, came to the conclusion that Chitawan and others were in possession of the land in dispute on the date of the preliminary order and two months prior to it. He, therefore, ordered the land to be released in favour of Chitawan and others and forbade Mahboob Ilahi and others from interfering with the possession of Chitawan etc. till they were otherwise evicted in due course of law.
6. Against the order of the learned Magistrate Mahboob Ilahi alone preferred a revision which was heard by the learned Civil and Sessions Judge, Allahabad, who made the reference on 1st June 1967 recommending to this Court that the order passed by the learned Sub-Divisional Magistrate releasing the land in dispute in favour of Chitawan and others be set aside and that the land be released in favour of Mahboob Ilahi.
7. As already stated above, the reference came up for hearing before me on 5th April 1968, when, after hearing the learned Counsel for the parties and after going through the orders passed by the Courts below and through the record of the case, I accepted the reference and set aside the order passed by the learned Sub-Divisional Magistrate on 31st Dcember 1966 and ordered the land to be released in favour of Mahboob Ilahi.
8. Thereafter the application under Section 561-A, Criminal P. C, was filed praying that ray order dated 5th April 1968, accepting the reference, be set aside and the reference be reheard. The grounds on which the application under Section 561-A, Criminal P. C, has been made are that after the order of the learned Sub-Divisional Magistrate releasing the land in dispute in favour of Chitawan and others Mahboob Ilahi alone filed a revision against that order, Abdul Aziz, Mohammad Ali and Sami Ullah, who had joined Mahboob Ilahi in filing the application under Section 145, Criminal P. C. did not prefer a revision against the order passed by the learned Sub-Divisional Magistrate on 31st December 1966 releasing the land in dispute in favour of Citawan and others. They were also not made opposite parties before the revisional Court. According to the applicants of the application under Section 561-A, Criminal P. C., Abdul Aziz, Mohammad Ali and Sami Ullah were necessary parties and in their absence the revision could not have been decided by the learned Civil and Sessions Judge and no effective and final order could be passed in their absence by the referring Court as the order of the learned Sub-Divisional Magaistrate had become final against them and in case the revision of Mahboob Ilahi was allowed the result would have been that two contradictory orders would have been passed by the revisional Court. The next ground mentioned in the application under Section 561-A. Criminal P. C, is that the learned Civil and Sessions Judge, as a revisional Court, could not interfere with the findings of fact regarding possession recorded by the learned Sub-Divisional Magistrate, Phulpur, According to Chitawan and others the learned Sub-Divisional Magistrate had recorded a specific finding that they were in possession over the 'charri' and 'Marha' etc. situate on the land in dispute on the date of the preliminary order and within two months prior to that which fact was admitted by Mahboob Ilahi and his witnesses. This finding of fact recorded by the learned Sub-Divisional Magistrate, according to Chitawan and others, had not been reversed by the learned Civil and Sessions Judge, and therefore, the learned Civil and Sessions Judge, could not direct the land in dispute to be released in favour of Mahboob Ilahi. The next ground mentioned in the application under Section 561-A, Criminal P. C, is that no reference could be made on questions of fact.
9. A preliminary objection was raised by Sri T.P. Asthana. learned Counsel representing Mahboob Ilahi, and it was that this Court could not review the order passed on 5th April 1968 as there is no provision for review in the Criminal P. C. and, therefore, the application under Section 561-A, Criminal P. C, is not maintainable. According to Sri T.P. Asthana once this Court had accepted the reference and had pronounced the judgment, that judgment could not be altered.
10. In support of his preliminary objection Sri Asthana placed reliance on Section 369, Criminal P. C., and contended that that section was a complete bar to the order passed by this Court on 5th April 1968 being reviewed. Sections 369, Criminal P. C. reads as follows:
Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court by the Letters Patent or other instrument constituting such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error.
11. I do not agree with the submission made by Sri Asthana that Section 369, Criminal P. C, bars this Court from altering or reviewing its previous judgment. The words 'save as otherwise provided by this Code' existing in Section 369, Criminal P. C, are very significant and show that Section 369, Criminal P. C, itself provides that the Court cannot alter its previous judgment save as otherwise provided by the Criminal P. C. In other words, Section 369, Criminal P. C. does not take away the inherent powers vested in this Court under Section 561-A, Criminal P. C, to make such orders as may be necessary to give effect to any order under the Criminal P. C. or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
12. Section 561, Criminal P. C. reads as follows:
Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders a:>may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
13. Section 561-A, Criminal P. C., is not at all ambiguous and it completely saves the inherent powers of this Court which are not affected or limited by any provision contained in the Criminal P. C. including Section 369 of the Code. I, therefore, do not find any force in the contention made by Sri Asthana that Section 369, Criminal P. C. excludes the inherent powers vested in this Court by Section 561-A, Criminal P. C.
14. In support of his contention Sri Asthana relied upon Mahendra Pal v. State of U. P. : AIR1959All313 in which it was held by a learned single Judge of this Court as follows:
The ordinary rule enacted in Section 369, Criminal P. C. applies to High Courts also. Even apart from the provisions of that section finality attaches to orders passed by a High Court in appeals and criminal revisions and it is not open to the same High Court to alter or review the same. Any one feeling aggrieved by the orders can seek his remedy before the Supreme Court alone.
An application for review on mere ground that the counsel who argued the revision inadvertently omitted to urge certain points of law is not maintainable.
15. Sri Asthana next placed reliance on Jagannath Singh v. Bidheshi : AIR1955All712 in which a learned single Judge of this Court held as follows:
In normal circumstances the High Court has no power to review its previous decision in a criminal case but where a mandatory provision of law has been contravened resulting in abuse of the process of the Court it is entitled to correct an obvious error.
Thus, where a reference to the High Court arising out of the proceedings under Section 145, Criminal P. C, is decided ex parte without hearing the successful party or his counsel there is no contravention of any mandatory provision of law and the High Court is not entitled to review its decision or order. In such a case the absent party was neither an accused person within Section 439(2) nor had a right to be heard in view of Section 440.
The facts of Jagannath Singh's case : AIR1955All712 are entirely different. In that case in reference arising under Section 145, Criminal P. C, successful party or his counsel were not heard. In the instant case I heard the counsel for the parties and, therefore, Jagannath Singh's case : AIR1955All712 is distinguishable.
17. Sri S.N. Sahai, in support of the application under Section 561-A, Criminal P. C., placed reliance on a Full Bench ruling reported in Raj Narain v. State : AIR1959All315 in which the Full Bench, by majority, held that:
The High Court has power to revoke, review, recall or alter its own earlier decision in a criminal revision and rehear the same.
This can be done only in cases falling under one or the other of the three conditions mentioned in Section 561-A, namely,
(i) for the purpose of giving effect to any order passed under the Code of Criminal Procedure;
(ii) for the purpose of preventing abuse of the process of any Court;
(iii) for otherwise securing the ends of justice.
18. In T.H. Hussain v. M.P. Mondkar : 1958CriLJ701 , it was held by their Lordships of the Supreme Court that:
Inherent power conferred on High Court 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. After all, procedure, whether criminal or civil, must serve the higher purpose of justice; and it is only when the ends of justice are put in jeopardy by the conduct of the accused that the inherent power can and should be exercised.
19. One of the learned Judges in the Full Bench case of Raj Narain : AIR1959All315 (F.B.), held that:
Generally it may be stated that powers under Section 561-A to rehear a case -can only be exercised where the facts of the case are shocking to the conscience. Section 561-A thus would not authorise this Court to rehear a case where the applicant or appellant was not heard due to some fault of his or of his counsel.
20. Sri. Asthana submitted that the Full Bench case of Raj Narain : AIR1959All315 (FB), was in conflict with the decision of another Full Bench in Sangam Lal v. Rent Control and Eviction Officer : AIR1966All221 , in which the Full Bench of this Court held that:
There is power of review both in cases where judgment has been delivered but not signed and cases in which judgment has been delivered, signed and sealed. In the former case, the power to alter or amend or even to change completely is unlimited provided notice is given to the parties and they are heard before the proposed change is made, while in the latter case the power is limited and review is permitted only on very narrow grounds. Hence a judgment which has been orally dictated in open Court can be completely changed before it is signed and sealed provided notice is given to all parties concerned and they are heard before the change is made.
21. In Sangam Lai's case : AIR1966All221 , the Full Bench of this Court was dealing with the Rules of this Court contained in Chapter VII, Rules 1 to 4 and were deciding a civil miscellaneous application made in a special appeal. There is thus, in my opinion, no conflict between the Full Bench in Sangam Lal's case : AIR1966All221 , and the Full Bench in Raj Narain's case : AIR1959All315 .
22. In support of his preliminary objection Sri. Asthana also relied upon a decision of the Supreme Court in Surendra Singh v. State of Uttar Pradesh : 1954CriLJ475 , in which it was held as follows:
A judgment is the final decision of the Court intimated to the parties and to the world at large by formal 'pronouncement' or 'delivery' in open court. It is a judicial act which must be performed in a judicial way. The decision which is so pronounced or intimated must be a declaration of the mind of the Court as it is at the time of pronouncement. This is the first judicial act touching the judgment which the Court performs after the hearing. Everything else uptill then is done out of Court and is not intended to be the operative act which sets all the consequences which follow on the judgment in motion. The final operative act is that which is formally declared in open court with the intention of making it the operative decision of the Court. That is what constitutes the 'judgment'.
Upto the moment the judgment is delivered Judges have the right to change their mind. Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. It follows that the Judge who 'delivers' the judgment, or causes it to be delivered by a brother Judge, must be in existence as a member of the Court at the moment of delivery so that he can, if necessary, stop delivery and say that he has changed his mind. There is no need for him to be physically present in court but he must be in existence as a member of the Court and be in a position to stop delivery and effect an alteration should there be any last minute change of mind on his part.
Where, therefore, of the two Judges of the High Court who hear an appeal in a criminal case, one, purporting to write a joint judgment, prepares a judgment, signs it and sends it to the other Judge but before it is delivered, dies, then the judgment, if delivered by the other Judge, is not a valid judgment.
23. The facts of the instant case are entirely different and I see no relevancy of the decision of the Supreme Court in Surendra Singh's case : 1954CriLJ475 , to the facts of the instant case.
24. Sri. Asthana also contended that the decision of the Full Bench in Raj Narain's case : AIR1959All315 , is no longer a good law in view of the decision of the Supreme Court in Sankatha Singh v. State of Uttar Pradesh : AIR1962SC1208 , in which their Lordships of the Supreme Court held that:
An appellate Court has no power to review or restore an appeal which has been disposed of. A Sessions Judge cannot set aside his first order passed in appeal dismissing the appeal, when neither the appellants nor their counsel appeared and cannot order the rehearing of the appeal. Section 369, read with Section 424 of the Code, makes it clear that the appellate Court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error.
Further, assuming that the Sessions Judge can exercise inherent powers, he cannot pass the order of the rehearing of the appeal in the exercise of such powers when Section 369, read with Section 424, of the Code, specifically prohibits the altering or reviewing of its order by a Court. Inherent powers cannot be exercised to do what the Code specifically prohibits the Courts from doing.'
25. Sankatha Singh's case : AIR1962SC1208 , in my opinion, is of no help to Sri. Asthana as the head note of that case, quoted by me above, itself shows.
26. Sri, Asthana also placed reliance on the following observations made by the Supreme Court in Pampapathy v. State of Mysore : 1967CriLJ287 :
The inherent power of the High Court mentioned in Section 561-A, Cr. P. C, can be exercised only for either of the three purposes specifically mentioned in the section. The inherent power cannot 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 Section 561-A can come into operation. No legislative enactment dealing with the procedure can provide for all cases that can possibly arise and it is an established principle that the Courts should have inherent powers, apart from the express provision of law, which are necessary to their existence and for the proper discharge of the duties imposed upon them by law. This doctrine finds expression in Section 561-A which does not confer any new powers on the High Court but merely recognises and preserves the inherent powers previously possessed by it. We are, therefore, of the opinion that in a proper case the Court has inherent power Under Section. 561-A, Cr. P. C, to cancel the order of suspension of sentence and grant of bail to the appellant made Under Section. 426, Cr. P. C. and to order that the appellant be rearrested and committed to jailcustody.
27. As is clear from the above quotation the Supreme Court dealt with the scope of the inherent power vested in the High Court under Section 561-A, Criminal Procedure Code and held that that inherent power cannot be invoked in respect of any matter covered by the specific provisions of the Code. The Supreme Court further held that the inherent power cannot also be invoked if its exercise would be inconsistent with the specific provisions of the Code. The Supreme Court, in Pampapathy's case. : 1967CriLJ287 , did not hold that this Court under Section 561-A, Criminal Procedure Code, does not possess an inherent power to alter its judgment pronounced in a criminal case in order to secure the ends of justice.
28. Sri. Asthana next placed reliance on the following observations made by the Supreme Court in Thungabhadra Industries Ltd. v. Govt. of A.P. : [1964]5SCR174 :
A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. Where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face, and there could reasonably be no two opinions entertained about it, a clear case of error apparent on the face of the record would be made out.
29. These observations were made by the Supreme Court while dealing with the provisions of Order 47, Rule 1, Civil Procedure Code. Thus the observations of the Supreme Court relied upon by Sri. Asthana are of no help to him in deciding the application under Section 561-A, Criminal Procedure Code.
30. Sri. Asthana strongly relied upon the following observations of their Lordships of the Supreme Court in : 1954CriLJ475 :
After the judgment has been delivered provision is made for review. One provision is that it can be freely altered or amended or even changed completely without further formality except notice to the parties and a rehearing on the point of change should that be necessary, provided it has not been signed. Another is that after signature a review properly so called would lie in civil cases but none in criminal; but the review, when it lies, is only permitted on very narrow-grounds.
31. Sri. Asthana contended that the Supreme Court in Surendra Singh's case : 1954CriLJ475 , has laid down that an order passed in a criminal case cannot be reviewed by this Court. But this contention is not correct. The words 'a review properly socalled would lie in civil cases but none in criminal; but the review, when it lies, is only permitted on very narrow grounds' in Surendra Singh's case : 1954CriLJ475 , are very significant. They show that the Supreme Court held that a review 'properly socalled' does lie in a criminal case but it lies 'on very narrow grounds.
32. Not a single ruling has been cited by Sri. Asthana which shows that the decision of the Full Bench in Raj Narain's. case : AIR1959All315 , has either been overruled by a larger Bench of this Court or by the Supreme Court. Sitting singly I am bound by the Full Bench decision in Raj Narain's case and it must, therefore, be held that this Court has the inherent power to review its previous judgment in order to secure the ends of justice, I am fortified in my view by a decision of a learned single Judge of this Court in Raj Karan v. State 1966 All. W. R. (HC) 534 in which it was held as follows:
In order to secure the ends of justice, in the special circumstance of a particular case, it is possible for the High Court to review its earlier order and judgment even if the same had been signed and sealed.
33. For the reasons mentioned above I reject the preliminary objection raised by Sri. Asthana and hold that the application under Section 561-A, Criminal Procedure Code, praying that my order dated 5th April 1968, be reviewed and the reference be reheard is maintainable.
34. As the application under Section 561-A, Criminal Procedure Code, has been listed alone with Criminal Reference No. 210 of 1967 the reference has been reheard by me and is being redecided by this order. The facts of the reference have already been mentioned by me above. The application under Section 145, Criminal Procedure Code was originally made by four persons namely. Mahboob Ilahi, Abdul Aziz, Mohammad Ali and Sami Ullah and the learned Magistrate, by his order dated 31st December 1966, had held Chitawan and others to be in possession over the land in dispute on the date of the preliminary order and within two months prior to it. Against that order only Mahboob Ilahi had preferred a revision which was heard by the learned Civil and Sessions Judge, Allahabad, who had made the reference to this Court, I have perused the application made by Mahboob Ilahi and others under Section 145, Criminal Procedure Code, and the contents of paragraphs 2 and 5 clearly show that those four persons claimed a joint right in the land in dispute and all the four applicants in the application under Section 145, Criminal Procedure Code, had made the following common prayer:
Lihaja sayalan mustdai hain ki araji majkoor mahddoda zail kurk kar li jaye aur kabja sayalan araji majkoor per wa darakhtan neem majkoorwala per wahal rakha jave.
35. By his order, dated 31st December 1966, the learned Sub-Divisional Magistrate, Phulpur, had forbidden all the four persons, namely, Mahboob Ilahi, Abdul Aziz, Mohammad Ali and Sami Ullah, the applicants of the application under Section 145, Criminal Procedure Code, from interfering with the possession of Chitawan and others till they were otherwise evicted in due course of law. Against that order only Mahboob Ilahi preferred a revision and the other three persons, namely, Abdul Aziz, Mohammad Ali and Sami Ullah, submitted to the order passed by the learned Sub-Divisional Magistrate. Those three persons were not even arrayed as opposite parties in the revision preferred by Mahboob Ilahi and thus the order of the learned Sub-Divisional Magistrate, dated 31st December 1966, became final as far as Abdul Aziz, Mohammad Ali and Sami Ullah were concerned. The learned Civil and Sessions Judge set aside the order of the learned Magistrate only as far as Mahboob Ilahi was concerned while the order of the learned Magistrate has become final as against Abdul Aziz, Mohammad Ali and Sami Ullah. Thus two contradictory orders cannot be allowed to remain in existence. Abdul Aziz, Mohammad Ali and Sami Ullah, having claimed a joint right along with Mahboob Ilahi in their application under Section 145, Criminal Procedure Code, were necessary and proper parties in the revision filed by Mahboob Ilahi and in their absence the revision filed by Mahboob Ilahi alone could not be decided in his favour as no effective or final order could be passed in favour of Mahboob Ilahi in the absence of the other three persons, namely, Abdul Aziz, Mohammad AH and Sami Ullah.
36. There is no force in the submission of Sri. Asthana that the revision preferred by Mahboob Ilahi against the order of the learned Magistrate was correct as he was a co-owner of the land in dispute and as such could institute proceedings against a trespasser. The instant case is. not a case of ejectment of trespassers but it was an application made for proceedings to be initiated under Section 145, Criminal Procedure Code. All the four persons, who had originally made the application under Section 145, Criminal Procedure Code, were forbidden by the learned Magistrate from interfering with the possession of Chitawan and others. Since only Mahboob Ilahi preferred a revision against the order of the learned Magistrate the order of the learned Magistrate became final against the other three applicants of the application under Section 145, Criminal Procedure Code.
37. The submission of Sri. S.N. Sahai that the referring Court could not make a reference on questions of fact also has force. Sri Asthana in this connection, contended that the learned Magistrate had discarded certain documents filed by Mahboob Ilahi as inadmissible in evidence and that, according to him, was a question of law and, therefore, the referring Court was correct in making the reference to this Court. I have carefully gone through the order of the learned Magistrate and have heard the learned Counsel for the parties at some length and am of the opinion that all that the learned Magistrate meant was that the documentary evidence filed by Mahboob Ilahi and others was not of reliable nature. The learned Magistrate did not come to the conclusion that the documents filed by Mahboob Ilahi and others were not admissible although the language used by the learned Magistrate in his order was unfortunately not very appropriate. The law is clear that a reference in a criminal case can be made only on a question of law and no cases need be cited in support of that proposition.
38. The learned Magistrate had recorded a specific finding that Chitawan and others were in possession over Charhi and Marha etc. within two months prior to the passing of the preliminary order. This fact was admitted by Mahboob Illahi in paragraph 2 of his written statement, paper No. 19. This is also clear from a perusal of paragraph 2 of the. application made by Mahboob Ilahi and others under Section 145, Criminal P.C. The finding of the learned Magistrate finds further support from the affidavits Bhagwati, Murli Dhar and Behari Lal who had filed affidavits supporting the case of Mahboob Ilahi before the learned Magistrate. The report of the Station Officer (paper No. 5/1) also shows that Chitawan and others were in possession of the land in dispute within two months prior to the preliminary order and on the date of the preliminary order. The attachment order passed by the learned Magistrate also shows that he had directed the police authorities to attach the 'Marha', Khunta 'etc' belonging to Chitawan and others on the land in dispute. All these facts, unfortunately, were not brought to my notice when I previously heard Criminal Reference on 5th April 1968. In my opinion, in order to secure the ends of justice, it is necessary that the order passed by me on 5th April 1968, accepting the reference made to this Court by the learned Civil and Sessions Judge, be set aside and the reference be rejected and the order made by the learned Magistrate be upheld and the land be ordered to be released in favour of Chitawan and others and I hold accordingly.
39. I, therefore, allow the application under Section 561-A, Criminal P. C., and set aside my order dated 5th April 1966 and reject the reference made by the learned Civil and Sessions Judge and up-hold the order passed by the learned Magistrate.
40. Before parting with this case I must observe that Sri T.P. Asthana has argued this case after a very detailed study of law and after thorough preparation and has been of great assistance to me. He has taken great care in preparing the case and in placing it before me in a very lucid and forceful manner.