Md. Basir Ahmad and Md. Nasir Ahmad Vs. the State of Bihar - Court Judgment

Excerpt:
criminal — sections 120b, 255-260, 420, 467, indian penal code, 1860 — order of special magistrate recalling custody warrant of petitioner challenged on the ground that criminal courts did not enjoy power to recall order passed by it — petitioner pleading guilty under section 255 to 259 and 467, ipc — magistrate sentencing them after recording guilty verdict — central bureau of investigation filed application for their custody warrant — held, magistrate had no power to recall its order — although order of magistrate sentencing petitioners after recording guilty verdict was void as per section 461(1) cr.pc, it should be valid until set aside by a court of competent jurisdiction order — order of holding guilty set aside — magistrate directed to proceed according to direction — application dismissed - - now it is well settled that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the code. thus, as already noticed, would be clearly barred by the direct ratio in ram chander agarwala's case 1979 cri lj 33 (sc) (supra). 9. reliance has also been placed on a decision of the supreme court in the case of state of orissa appellant v. this decision instead of supporting the respondent clearly lays down, following chopra's case (supra) that once a judgment has been pronounced by a high court either in exercise of its appellate or its revisional jurisdiction. the decision clearly lays down that a judgement of the high court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the criminal procedure code. chandramauli kr. prasad, j.1. this application has been filed for quashing the order dated 26.7.2005 passed by the special judicial magistrate, c.b.i., patna in r.c. case no. 13(s) of 2004, whereby the custody warrant of the petitioners has been recalled and instead production warrant has been directed to be issued.2. facts lie in a narrow compass, petitioner is an accused in r.c. case no. 13(sic)s) of 2004 registered under section 255, 256, 257, 258, 259, 260, 467, 468, 469, 471, 420 and 120b of the indian penal code and 12 & 13 of the stamp act. according to the prosecution, on an information that the two petitioners are involved in production and supply of forged indian non-judicial stamps and court, fee stamps, a team of central bureau of investigation raided the residential premises of petitioner no. 1 md. basir ahmad at janta offset printing press. mohammmadpur road near shahaam in the district of patna and recovered one negative of india non judicial stamp of rs. 5000/-. one sketch negative ('blank), two negatives of court fee stamp of rs. 5/- each negative containing' forty such stamps, four negatives of court fee stamp of rs. 2/- each negative containing forty such stamps, one bunch of blank non judicial stamp paper of different denomination, four containers of printing ink, one rubber stamp imprinted as od, 15 numbers of stamp blocks relating to indian railway and two numbers of punching of 'great wall and max made'.3. the central bureau of investigation, after investigation submitted charge sheet against the petitioners and ultimately when the case was put on trial the special judicial magistrate fixed 14.7.2005 as the date for framing of the charge. on the said date charges were framed against the petitioners beside another accused dinesh kumar under section 120b, 255, 256, 257, 259 and 467 of the indian penal code.4. petitioners pleaded their guilt and on that basis learned magistrate convicted the petitioners under section 255, 256, 257, 259 and 467 of the indian penal code and sentenced them to undergo rigorous imprisonment for one year under section 255, 256, 257 and 259 of the indian penal code and one year three months for the offence under section 467 of the indian penal code. the learned magistrate besides the aforesaid substantive sentence inflicted fine of various amount and in default thereof to suffer simple imprisonment for one month. the sentences were directed to run concurrently. accordingly the learned magistrate directed for issuance of custody warrant and directed that the period undergone by them as under trial prisoners be set off. as regards the other accused who claim to be tried. the learned magistrate adjourned the case to 5.8.2005 for evidence.5. in the meanwhile, the central bureau of investigation filed application for recall of the custody warrant of the petitioners inter alia, on the ground that offence under section 255 of the indian penal code is exclusively triable by the court of sessions and as such, a production warrant be issued for production of the accused persons. the learned magistrate considered the prayer of the central bureau of investigation and by the impugned order directed for recall of the custody warrant and instead directed for issuance of production warrant.6. mr. chitranjan sinha, senior advocate, appearing on behalf of the petitioners raises a very short point. he submits that on petitioners' admission of guilt the learned magistrate had convicted and sentenced them and issued custody warrant to serve out the sentence, the order impugned directing for recall of the custody warrant and issuance of production warrant, in sum and substance amounts to review of the order. he points out that the learned magistrate had no jurisdiction to recall its order and this itself renders his order illegal in the eye of law.7. in support of his submission, he has placed reliance on 'a judgment of the supreme. court in the case of smt. sooraj devi, appellant v. pyare lal and anr. respondents reported in air 1981 supreme court 736 and my attention has been drawn to paragraph 5 of the judgment, which reads as follows:the appellant points out that he invoked the inherent power of the high court saved by section 482 of the code and that notwithstanding the prohibition imposed by section 362 the high court, had power to grant relief. now it is well settled that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the code. sankatha singh v. state of u.p. air 1962 sc 1208. it is true that the prohibition in section 362 against the court altering or reviewing its judgment is subject to what is 'otherwise provided by this code or by any other law for the time being in force'. those words, however, refer to those provisions only where the court has been expressly authorised by the code or other law to alter or review its judgment. the inherent power of the court is not contemplated by the saving provision contained in section 362 and, therefore, the attempt to invoke that power can be of no avail. 8. reliance has also been placed on a full bench decision of the punjab and haryana high court in the case of ajit singh and anr. appellants v. state of punjab respondent reported in 1982 criminal law journal, 1215 and my attention has been drawn to the following passage from paragraph 10 of the judgment which reads as follows:consequently the allowance of the application would involve a clear review of the earlier judgment on the point of sentence and setting aside the same the payment of fine would have to be substituted. thus, as already noticed, would be clearly barred by the direct ratio in ram chander agarwala's case 1979 cri lj 33 (sc) (supra). 9. reliance has also been placed on a decision of the supreme court in the case of state of orissa appellant v. ram chander agarwala and ors. respondents reported in 1979 bbcj (sc) 2 to contend that when the high court has no inherent power to review its judgment, by no stretch of imagination. the learned magistrate can be considered to be possessed of that power. my pointed attention has been drawn to the following passage, from paragraph 20 of the judgment which reads as follows:this decision instead of supporting the respondent clearly lays down, following chopra's case (supra) that once a judgment has been pronounced by a high court either in exercise of its appellate or its revisional jurisdiction. no review or revision can be entertained against that judgment as there is no provision in the criminal procedure code which would enable the high court to review the same or to exercise revisional jurisdiction. this court, entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the court. the decision clearly lays down that a judgement of the high court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the criminal procedure code. the provisions of section 561a of the code cannot be invoked for exercise of a power which is specifically prohibited by the code. 10. mr. rakesh kumar, learned counsel appearing on behalf of central bureau of investigation, however, contends that that offence under section 255 of the indian penal code is exclusively triable by the court of sessions and in view of section 461 of the code of criminal procedure the learned magistrate not being empowered by law to try an offence exclusively triable by the court of sessions, his order shall be void.11. having appreciated the rival submission, i do not have the slightest hesitation in accepting the broad submission of mr. sinha that the criminal courts have no jurisdiction to review its own judgment. in sum and substance, by the impugned order in the garb of recalling the order passed earlier of issuance of custody warrant and directing for issuance of production warrant, the learned magistrate had reviewed the order by which it had convicted the accused persons on their admission of guilt.12. undisputedly in view of the first schedule of the code of criminal procedure, offence under section 255 of the indian penal code is triable exclusively by the court of sessions. section 461 of the code of criminal procedure enumerates proceeding, which would be vitiated on account of irregularities. section 461(1) which is relevant for the purpose reads as fo11ows.461. irregularities which vitiate proceedings:if any magistrate, not being empowered by law in this behalf, does any of the following things, namely:(1) tries an offender;xxxxx his proceedings shall be void.13. undisputedly the learned magistrate had tried the petitioners, for which he was not empowered by law and this itself renders his order dated 14.7.2005 void in law. this leads to another question as to whether an order void can be ignored entirely or has to be set aside by the superior court.14. in my opinion an order which is void for want of jurisdiction must nevertheless be regarded as valid unless it is set aside by a court of competent jurisdiction. i am further of the opinion that even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. ordinarily, such an order will, in fact, be effective inter parties until it is successfully avoided or challenged in higher forum.15. the learned magistrate had passed a void order and this has come to my notice. hence, in exercise of my suo moto revisional power. i set aside the order dated 14.7.2005 passed by the special judicial magistrate. c.b.i. patna in r.c. case no. 13(s) of 2004 to the extent that it had held the petitioners' guilty on their admission of guilt. consequently, the impugned order dated 26.7.2005 is rendered redundant and is set aside accordingly. the learned magistrate shall now proceed with the case bearing in mind the observations aforesaid.16. application stands dismissed accordingly..

Judgment:

Chandramauli Kr. Prasad, J.

1. This application has been filed for quashing the order dated 26.7.2005 passed by the Special Judicial Magistrate, C.B.I., Patna in R.C. case No. 13(S) of 2004, whereby the custody warrant of the petitioners has been recalled and instead production warrant has been directed to be issued.

2. Facts lie in a narrow compass, petitioner is an accused in R.C. case No. 13(sic)S) of 2004 registered under Section 255, 256, 257, 258, 259, 260, 467, 468, 469, 471, 420 and 120B of the Indian Penal Code and 12 & 13 of the Stamp Act. According to the prosecution, on an information that the two petitioners are involved in production and supply of forged Indian non-judicial stamps and court, fee stamps, a team of Central Bureau of Investigation raided the residential premises of petitioner no. 1 Md. Basir Ahmad at Janta Offset Printing Press. Mohammmadpur Road near Shahaam in the District of Patna and recovered one negative of India Non Judicial Stamp of Rs. 5000/-. one sketch negative ('Blank), two negatives of Court fee stamp of Rs. 5/- each negative containing' forty such stamps, four negatives of Court fee stamp of Rs. 2/- each negative containing forty such stamps, one bunch of blank Non judicial stamp paper of different denomination, four containers of printing ink, one Rubber stamp imprinted as OD, 15 numbers of stamp blocks relating to Indian Railway and two numbers of punching of 'Great Wall and Max made'.

3. The Central Bureau of Investigation, after investigation submitted charge sheet against the petitioners and ultimately when the case was put on trial the Special Judicial Magistrate fixed 14.7.2005 as the date for framing of the charge. On the said date charges were framed against the petitioners beside another accused Dinesh Kumar under Section 120B, 255, 256, 257, 259 and 467 of the Indian Penal Code.

4. Petitioners pleaded their guilt and on that basis learned Magistrate convicted the petitioners under Section 255, 256, 257, 259 and 467 of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for one year under Section 255, 256, 257 and 259 of the Indian Penal Code and one year three months for the offence under Section 467 of the Indian Penal Code. The learned Magistrate besides the aforesaid substantive sentence inflicted fine of various amount and in default thereof to suffer simple imprisonment for one month. The sentences were directed to run concurrently. Accordingly the learned Magistrate directed for issuance of custody warrant and directed that the period undergone by them as under trial prisoners be set off. As regards the other accused who claim to be tried. the learned Magistrate adjourned the case to 5.8.2005 for evidence.

5. In the meanwhile, the Central Bureau of Investigation filed application for recall of the custody warrant of the petitioners inter alia, on the ground that offence under Section 255 of the Indian Penal Code is exclusively triable by the court of Sessions and as such, a production warrant be issued for production of the accused persons. The learned Magistrate considered the prayer of the Central Bureau of Investigation and by the impugned order directed for recall of the custody warrant and instead directed for issuance of production warrant.

6. Mr. Chitranjan Sinha, Senior Advocate, appearing on behalf of the petitioners raises a very short point. He submits that on petitioners' admission of guilt the learned Magistrate had convicted and sentenced them and issued custody warrant to serve out the sentence, the order impugned directing for recall of the custody warrant and issuance of production warrant, in sum and substance amounts to review of the order. He points out that the learned Magistrate had no jurisdiction to recall its order and this itself renders his order illegal in the eye of law.

7. In support of his submission, he has placed reliance on 'a judgment of the Supreme. Court in the case of Smt. Sooraj Devi, Appellant v. Pyare Lal and Anr. Respondents reported in AIR 1981 Supreme Court 736 and my attention has been drawn to paragraph 5 of the judgment, which reads as follows:

The appellant points out that he invoked the inherent power of the High Court saved by Section 482 of the Code and that notwithstanding the prohibition imposed by Section 362 the High Court, had power to grant relief. Now it is well settled that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. Sankatha Singh v. State of U.P. AIR 1962 SC 1208. It is true that the prohibition in Section 362 against the Court altering or reviewing its Judgment is subject to what is 'otherwise provided by this Code or by any other law for the time being in force'. Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 and, therefore, the attempt to invoke that power can be of no avail.

8. Reliance has also been placed on a full Bench decision of the Punjab and Haryana High Court in the case of Ajit Singh and Anr. Appellants v. State of Punjab Respondent reported in 1982 Criminal Law Journal, 1215 and my attention has been drawn to the following passage from paragraph 10 of the judgment which reads as follows:

Consequently the allowance of the application would involve a clear review of the earlier judgment on the point of sentence and setting aside the same the payment of fine would have to be substituted. Thus, as already noticed, would be clearly barred by the direct ratio in Ram Chander Agarwala's case 1979 Cri LJ 33 (SC) (supra).

9. Reliance has also been placed on a decision of the Supreme court in the case of State of Orissa Appellant v. Ram Chander Agarwala and Ors. Respondents reported in 1979 BBCJ (SC) 2 to contend that when the High Court has no inherent power to review its judgment, by no stretch of imagination. the learned Magistrate can be considered to be possessed of that power. My pointed attention has been drawn to the following passage, from paragraph 20 of the judgment which reads as follows:

This decision instead of supporting the respondent clearly lays down, following Chopra's case (supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction. no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court, entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgement of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of Section 561A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code.

10. Mr. Rakesh Kumar, learned Counsel appearing on behalf of Central Bureau of Investigation, however, contends that that offence under Section 255 of the Indian Penal Code is exclusively triable by the court of Sessions and in view of Section 461 of the Code of Criminal Procedure the learned Magistrate not being empowered by law to try an offence exclusively triable by the court of Sessions, his order shall be void.

11. Having appreciated the rival submission, I do not have the slightest hesitation in accepting the broad submission of Mr. Sinha that the criminal courts have no jurisdiction to review its own judgment. In sum and substance, by the impugned order in the garb of recalling the order passed earlier of issuance of custody warrant and directing for issuance of production warrant, the learned Magistrate had reviewed the order by which it had convicted the accused persons on their admission of guilt.

12. Undisputedly in view of the first schedule of the Code of Criminal Procedure, offence under Section 255 of the Indian Penal Code is triable exclusively by the court of Sessions. Section 461 of the Code of Criminal Procedure enumerates proceeding, which would be vitiated on account of irregularities. Section 461(1) which is relevant for the purpose reads as fo11ows.

461. Irregularities which vitiate proceedings:

If any Magistrate, not being empowered by law in this behalf, does any of the following things, namely:

(1) tries an offender;

xxxxx

his proceedings shall be void.

13. Undisputedly the learned Magistrate had tried the petitioners, for which he was not empowered by law and this itself renders his order dated 14.7.2005 void in law. This leads to another question as to whether an order void can be ignored entirely or has to be set aside by the superior Court.

14. In my opinion an order which is void for want of jurisdiction must nevertheless be regarded as valid unless it is set aside by a court of competent jurisdiction. I am further of the opinion that even a void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily, such an order will, in fact, be effective inter parties until it is successfully avoided or challenged in higher forum.

15. The learned Magistrate had passed a void order and this has come to my notice. Hence, in exercise of my suo moto revisional power. I set aside the order dated 14.7.2005 passed by the Special Judicial Magistrate. C.B.I. Patna in R.C. Case No. 13(S) of 2004 to the extent that it had held the petitioners' guilty on their admission of guilt. Consequently, the impugned order dated 26.7.2005 is rendered redundant and is set aside accordingly. The learned Magistrate shall now proceed with the case bearing in mind the observations aforesaid.

16. Application stands dismissed accordingly.

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