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The State of Mysore Vs. K.C. Bandi Gowda and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Judge
Reported in1957CriLJ455
AppellantThe State of Mysore
RespondentK.C. Bandi Gowda and anr.
Excerpt:
- code of criminal procedure, 1973 [c.a. no. 2/1974]. section 468: [dr. k. bhakthavatsala, j] offence under section 406 of i.p.c., - bar to take cognizance, after lapse of more than 14 years on facts, held, the complainant is not claiming exclusion of time in computing the period of limitation under section 470 cr.p.c. further, the trial court has not passed any order under section 473 cr.p.c. regarding extension of period of limitation. hence, taking cognizance for the offence punishable under section 406 of ipc against the accused by the magistrate is bad in law. impugned order was quashed. - if it is permissible for a division bench in the absence of statutory authority to determine whether the view expressed is correct or not, the party may as well claim to obtain the opinion.....venkataramaiya, c.j.1. in this application filed under section 501-a of the code of criminal procedure, legality of the disposal of a petition previously filed under the same section by my learned predecessor is challenged on the ground, that he had no jurisdiction to deal with it sitting alone. the point raised is novel, even as the circumstances relating to it are unusual. the order is attacked by the learned advocate-general as being one passed in exercise of power not vested by law in a judge acting singly.2. the genesis of the case is that on a charge sheet presented by the police certain persons were prosecuted for alleged commission of offences in mysore. some of the accused invoked the interference of this court by means of petitions filed under sections 439 and 561 of the code of.....
Judgment:

Venkataramaiya, C.J.

1. In this application filed under Section 501-A of the Code of Criminal Procedure, legality of the disposal of a petition previously filed under the same section by my learned predecessor is challenged on the ground, that he had no jurisdiction to deal with it sitting alone. The point raised is novel, even as the circumstances relating to it are unusual. The order is attacked by the learned Advocate-General as being one passed in exercise of power not vested by law in a Judge acting singly.

2. The genesis of the case is that on a charge sheet presented by the Police certain persons were prosecuted for alleged commission of offences in Mysore. Some of the Accused invoked the interference of this Court by means of petitions filed under Sections 439 and 561 of the Code of Criminal Procedure to quash the proceedings instituted against them before the Magistrate.

The petitions were registered as Criminal Revision Petitions Nos. 80 and 103 of 1954 and dealt with for some time only by the learned Chief Justice and finally after the learned Advocate-General pressed for the case being placed before a Division Bench, heard and dismissed by a Bench composed of the learned Chief Justice and my learned brother Fadrnanabhiah J. by orders separately written.

In the order of the learned Chief Justice certain observations and remarks of uncomplimentary nature were made against a Minister and certain police Officers. For deletion of these as being premature and unwarranted an application under Section 561-A of the Code of Criminal Procedure was filed and this was heard and dismissed by the learned Chief Justice overruling the objection taken to his dealing with the petition alone. It is alleged that there has been an erroneous assumption of jurisdiction which renders the order null and void.

3. Neither Section 561-A nor the Code prescribes the class of cases, kind of applications which a Judge of the High Court is competent to dispose of by himself. Provision is made in the High Court Act under Section 16-B for petitions for revision in civil or criminal cases to be decided by a single Judge or to be referred to a Division Bench if he thinks fit, and under Section 15 for criminal appeals to be heard by a Bench of two Judges.

The argument of the learned Advocate-General is not that there has been violation of these but that Rule 31 framed under Section 19 of the Act and which has the force of law has been contravened. Reliance is placed on a notification dated 28th July 1942 specifying matters over which power is given to a Judge to make orders and the omission of applications filed under Section 561-A of the Code amongst these is pointed out as implying lack of authority to deal with these.

The question whether a single Judge is competent to deal with a matter not enumerated in the list was raised before two Division Benches in 46 Mys HCR 157(A) and 53 Mys IICR 365(B) and the view in both prima facie supports the contention of the learned Advocate-General. In the first case the validity of a reference to a Division Bench by a single Judge in a proceeding under Section 339 of the Code of Criminal Procedure, not covered by the list, was doubted. In the other case it was observed that a single Judge cannot deal with an application under Section 491 of the Code of Criminal Procedure as Rule 31 does not provide for it.

4. No case on all fours with the present one was brought to my notice. There are however instances of applications under Section 561-A of the Code of Criminal Procedure being dealt with by a single Judge and his jurisdiction to do so not being questioned; sec 7 Mys LJ 342(C) and 8 Mys LJ 495(D). The section was invoked in these for the purpose of getting remarks made by lower Courts and not by any Judge of this Court expunged. Neither of these cases was noticed or referred to in the cases before the Division Bench.

5. The learned Advocate-General cited In the matter of Abdool Sobhan, ILR 8 Cal 63(E) and In re, Somu Naiclu AIR 1924 Mad 640(F), to show that there are instances of Orders of Judges of High Court being declared invalid by other Judges of the same Court and desired that the dismissal of the petition may be declared to be of no effect, that the same petition may be restored and reposted for disposal afresh by a Division Bench.

The dismissal of the criminal revision petition about which there was concurrence of opinion is not required to be interfered with but statements made by one learned member of the Bench should according to the learned Advocate-General be considered by a Division Bench and the application for expunging these disposed of by it.

No. 15 of the Rule 31 enables a single Judge to deal with applications of an interlocutory nature the disposal of which does not affect the disposal of any appeal whether the former petition cannot be deemed to be one of this kind is not free from doubt.

6. Since the question whether a single Judge has or has not the jurisdiction to dispose of an application filed under Section 561-A, Cr. P. C. depends on the construction of rules framed in exercise of powers conferred by a section in the Mysore High Court Act and not of statutes having general application, the decisions of other Courts are not of much help to the petitioner. There is no doubt that an, order passed without conforming to prescribed procedure is liable to be assailed and no special immunity from criticism is allowed to acts of Judges.

7. As has been expressed in several cases Section 561-A, Cr. P. C. does not confer any new powers on this Court or add to the jurisdiction already possessed by it. Section 16-B of the Act states that orders made by a single Judge on an application for revision are final and there is no provision under which the correctness of an order of a single Judge in any particular case can be subject to examination by the other Judges of this Court, singly, jointly or collectively, and the decision altered. The only remedy now available by virtue of the Constitution of India to the party aggrieved is to apply to the Supreme Court.

8. This is not a case of the application under Section 561-A having been disposed of by a single Judge through oversight of the rule. The objection raised to its being dealt with has been adverted to in the order and rejected. The present petition is virtually an appeal against this as what is sought for is a. determination of the correctness of the decision of a single Judge that he had jurisdiction to dispose of the application.

If it is permissible for a Division Bench in the absence of statutory authority to determine whether the view expressed is correct or not, the party may as well claim to obtain the opinion of a Full Bench that the order of a Division Bench is void. That will lead to circumventing the operation of Section 16-B of the. Act and taking away the finality of the order of the single Judge passed in revision as regards questions of jurisdiction in a particular case.

9. The reasonableness or propriety of making comments on the acts and conduct of any one in the course of the order is essentially discretionary. When the case is heard by more than one Judge the order may be written by one Judge, the others merely signing it to signify their concurrence in it or they may give reasons of their own for the concurrence. Concurrence in the decision does not necessarily imply agreement in the reasoning or with the reflections, imputations indulged in by one of the Judges.

The conclusion to be arrived at and the reasons therefor are of course matters for discussion and consultation between the members of the Bench by which the case is to be disposed of but the manner of expressing these and the impression about the person concerned in the proceedings is personal.

The relevancy of remarks against any one and the appropriateness of the language in which these are couched are left to the individual Judge. If what is written by one is not agreeable to others of the Bench they can and will only express themselves separately. That is what was done in the case with which this application is concerned.

10. In view of this the Judge to be addressed for the purpose of expunging any observation found in his order is only that Judge, as otherwise his colleagues will have to be constituted as Judges of his acts. This is certainly not warranted by law and not countenanced in practice.

11. If the argument of the learned Advocate-General that all applications filed under Section 561-A, of the Code of Criminal Procedure should be heard by a Bench or two or more Judges is correct, a single Judge is competent to dispose of a revision petition but not competent to decide by himself whether an observation or remark made by him in the course of his own order is to be retained or removed.

If that is to be decided by him along with another or others and he is prepared to delete the remarks but others are not, what should be the result? Applying the test to eases disposed of by a Full Bench, the members of which, by separate orders, concur as regards the result, and the remarks of one of these are sought to be expunged, it will be strange if the Judge who made the remarks or the Full Bench cannot but a Division Bench has to deal with the application.

12. Rule 31 on which stress is laid cannot be said to be exhaustive of all matters which a single Judge is competent to deal with. Application for amendment of judgment or decree is not an item stated in the rule and if it is decisive about power of a single Judge, such an application cannot be dealt with by the Judge who passed it as he can in second appeals, but before a Division Bench consisting of a Judge who did not hear the appeal or write the judgment.

The power to rectify errors for which provision is made in Section 369 of the Code is not included in the list and on that account to say that the Judge who has committed the error cannot set it right is anomalous. It seems to me that the power invoked under Section 561-A to expunge remarks made by a Judge is analogous to this and that the proper and only authority to dispose of the application is the Judge whose remarks are complained of. Apart from this, the question of jurisdiction has been determined in the order on the former application. This Bench cannot be called upon to hold that it is null and void. The application is dismissed.

Padmanabhiah, J.

13. This is an application filed by the State Government under Section 561-A of the Criminal Procedure Code praying that the order of dismissal passed in Criminal Petition No. 67/55 on the file of this Court may be set aside and that the said petition may be restored, heard and disposed of according to law.

14. The facts that have given rise to this petition are briefly as under:

15. Two Criminal Revision Petitions Nos. 80 and 103 of 1954 on the file of this Court were disposed of on 22-3-1955 by a Bench of this Court consisting of the then Hon'ble Chief Justice and my-self. Both tile petitions were covered by a single order and were dismissed though each wrote a separate order.

On the alleged ground that the order of the learned Chief Justice contained certain objectional statements, the Petitioner (State Government) filed Criminal Petition 67/55 under Section 561-A praying that the statements objected to may be deleted from the order of the learned Chief Justice passed in Criminal Revision Petitions 80 and 103/54 for the reason that the statements were premature and unwarranted. The Hon'ble Chief Justice sitting alone dismissed that petition (Cr. P. 67 of 1954) on 9-4-1955 holding that the remarks objected to were justified. As against that order, this petition is filed.

16. The respondents oppose the application. The only point that arises for consideration is whether the Petitioner State Government can be granted the relief prayed for in their application. At the outset, it may be stated that we are not at present concerned with the merits or otherwise of the allegations made in Cr. P. 67 of 1955. The point that has now to be decided is whether this Court is competent to re-open the matter and consider that application on merits again in spite of the order of dismissal passed by the learned Chief Justice on 9-4-1955.

17. Two grounds are urged in support of the present application; firstly, that the then learned Chief Justice sitting as a single Judge had no jurisdiction to dispose of an application under Section 561-A of the Criminal Procedure Code and that, therefore, the order is a nullity; and secondly, that the subject-matter of Cr. P. 67 of 1955 arose out of an order of a Division Bench and that, therefore, it could not be disposed of by a single Judge of that Bench. The point for determination will be how far these contentions can be sustained.

18. I am of opinion that there is considerable force in both the contentions raised by the learned Advocate-General. It is common ground that the order now impugned is one passed under Section 561-A, Cr. P. C. That section runs as follows:

Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as 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.

The contention urged on the side of the respondents is that the expression 'High Court' appearing in the above section means a single Judge also and that an application under that section might be disposed of by a single Judge. I am not prepared to accept this contention. As the order now impugned is one passed under Section 561-A of the Criminal Procedure Code, the definition of the term 'High Court' as given in the Criminal Procedure Code must govern the case.

19. Section 4(1) of the Criminal Procedure Code defines the term 'High Court' thus:

'High Court' in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta, and, in relation to any other local area, means the highest Court of criminal appeal for that area (other than the Supreme Court) or, where no such Court in established under any law for the time being in force, such officer as the State Government may appoint in this behalf.

It appears to me that the term 'High Court'' in the above section is not used specifically either as meaning a single Judge or a Bench of Judges. It only gives the definition of 'High Court' in general as the highest Court regarding criminal matters in a given area. That term 'High Court' must be deemed to have been used in the same sense under Section 561-A also.

20. Neither Section 4(j) nor Section 561-A specifically defines what the powers that can be exercised by a single Judge are or the powers by more than one Judge. They do not contemplate the distribution of work among the various Judges constituting the High Court. To determine this, it will be permissible to have recourse to other Acts not inconsistent with the provisions of the Criminal Procedure Code. We have got the Mysore High Court Act and the Rules framed thereunder. They specify the powers that are to be exercised by a single Judge and those to be exercised by a Bench.

21. Section 15(1) of the Mysore High Court Act deals with cases which can be dealt with by a Bench and Section 16-B with the powers of a single Judge. But neither of these sections deals with the powers of a single Judge or a Bench of Judges that can be exercised under Section 561-A. But Rule 31 framed under Section 19 of the Mysore High Court Act enumerates the powers that can be exercised by a single Judge.

These rules have been framed by the High Court and have the sanction of Government and have also been published in the official Gazette. Under Section 21 of the Mysore High Court Act these rules have the force of law. The powers that can be exercised by a single Judge are enumerated under Rule 31 and that list does not contain Section 561-A of the Criminal Procedure Code.

By necessary implication, it follows that a single Judge cannot exercise the powers under that section. It was contended by the learned Counsel for the respondents that the list is not exhaustive or conclusive and that the exercise of a power not mentioned in that list by a single Judge will not be illegal. I see no force in this contention. No doubt, it is true that it is open to the High Court to include in the list of powers exercisable by a single Judge any other power or to take away any power already included.

In the list prepared originally there are only 11 items in respect of which a single Judge could exercise his jurisdiction. Subsequently the list is amended in 1942 wherein we find 17 items which could be dealt with by a single Judge. Therefore the list must be deemed to be exhaustive or conclusive until such time as the same is amended according to law. Therefore I see no substance in the contention that the list is not exhaustive or conclusive. To accept the contention urged by the learned Counsel for the respondents would necessarily lead to the inference that even the powers not included in the list could be dealt with by a single Judge.

22. Reliance was placed on three cases of this Court where a single Judge has disposed of an application under Section 561-A : they are reported in 35 Mys CCR 401 (G); 35 Mys CCR 434(H) and 14 Mys LJ 419(I). It is, no doubt, true that a single Judge has exercised in the above three cases power under Section 561-A of the Criminal Procedure Code. It appears to me that the said cases cannot be of much help to the respondents. There is nothing in these decisions to show that the question of jurisdiction was raised or decided.

Perhaps the learned Judges in those cases proceeded on the assumption that they had jurisdiction to deal with the matter. As against these decisions, we have got two subsequent Bench decisions of our own High Court which take a contrary view and which may be taken as an authority on the point. They are reported in 46 Mys HCR 157(A) and S3 Mys HCR 365(B).

23. In the first case, an application under Section 339(3) of the Criminal Procedure Code was considered and a Bench of this Court has held that a single Judge could not dispose of the said petition inasmuch as it was not covered either under Section 16-B of the High Court Act or under Rule 31 framed under Section 19 of the Act. In the second case, a petition under Section 491, Cr. P. C. was for consideration.

Their Lordships have held that because Section 491 of the Cr. P. C. was not one of those sections that are referred to in Rule 31 framed under Section 19 of the Mysore High Court Act, a single Judge could not hear that petition and that it should be heard by a Bench. The attention of the Hon'ble Chief Justice does not seem to have been drawn to these two cases when he disposed of Cr. P. 67/55.

From these decisions it follows that it is only cases provided by Section 16-B and the classes of cases enumerated in R, 31 that can be heard and disposed of by a single Judge : any other matters not covered under those provisions, a single Judge will have no jurisdiction to deal with. As the rule now stands, a single Judge cannot exercise the Court's inherent power under Section 561-A even in respect of his own orders which have become final.

Anyway, Rule 31 as now framed may require further examination to find out if there are any legal difficulties in including Section 561-A in it and enable a single Judge to exercise the inherent powers under that section in matters arising out of the final decision of a single Judge.

24. 'Jurisdiction' means 'authority of the Court to hear and determine a cause'. In the list of the discussion made above, it is clear that the then learned Chief Justice had no authority to hear or decide the application in Cr. P. 67/55. If it is held that he had no jurisdiction to deal with that matter, then what we have to consider is as to what follows by virtue of that finding.

When a Judge having no authority to hear or decide, hears a cause and decides it, the order or decision made by him must be regarded as one made without jurisdiction. When an order is made without jurisdiction, it must be deemed to be a nullity and void ab initio. There are numerous decisions that enunciate this proposition.

25. The first decision to which I would like to refer is the one reported in Kunja Mohan Chakravarty v. Manindra Chandra AIR 1923 Cal 619(J). I can do nothing better than reproduce some of the observations of their Lordships in that case:

It is an elementary principle of law that if a Court : has no jurisdiction over the subject-matter, its judgment and orders are mere nullities and must not only be set aside at any time by the Court in which they are rendered but be declared void by every Court in which they are presented.

If a Court has no jurisdiction, its judgment is not merely voidable but void and it is wholly unimportant how precisely certain and technically correct its proceedings and decisions may have been. If it has no power to hear and determine the cause, its authority is wholly usurped and its judgment and orders are the exercise of arbitrary power under the forms but without the sanction of law.

Thus it is seen that their Lordships have held in the above case that the judgment and orders made by a Court without jurisdiction are mere nullities and void ab initio,

26. The other case to which a reference may be made in this connection is the one reported in AIR 1924 Mad 640(F). Their Lordships have in that case held that any judgment or order made by a Judge without jurisdiction is void ab initio. In the case reported in Estate of Indrani, In the matter of AIR 1931 All 212(K), it has been held that it is the duty of a Judge to undo any order that has been passed without jurisdiction either by himself or by his predecessor.

27. In Mohammad Maraicair v. Veyanna Meeru Thevar : AIR1954Mad894 , the same view is taken i.e. that an order made by a Judge without jurisdiction is not of any legal force and that the same may be ignored. The trend of the decisions as can be gathered from the cases cited above is that an order made by a Judge without jurisdiction is null and void that the same may be ignored and that the matter may be re-heard and disposed of,

A Distinction must be made between a voidable judgment and a void judgment, A voidable judgment is one regularly made but contrary to law and facts and therefore liable to be set aside in appeal. A void judgment is one which is passed without jurisdiction. It is void ab initio and a nullity, and as pointed out in the case reported in Satdeo Narain v. Ramayan Tewari AIR 1923 Pat 242(2)(M), it need not be set aside.

28. In this case, the question of setting aside the order made by the then learned Chief Justice does not at all arise : the question is not whether we can revise the order in Cr. P. 67 of 1955. But what we have to consider is whether we can or cannot deal with the merits of the petition. As pointed out in the various decisions referred to already, I am of opinion that the order of dismissal passed in Cr. P. 67 of 1955 should be ignored and the petition re-heard.

29. It was pointed out that Section 369, Cr. P. C. is a bar to deal with the order made by the previous Chief Justice. Section 369, Cr. P. C. runs 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.' That deals with judgments validly made. A judgment made without jurisdiction is no judgment and it cannot come under Section 369, Cr. P. C. The order made offends the provisions of the Mysore High Court Act and Rule 31 framed thereunder, which has got the force of law. In cases where a judgment or an order offends any provision of law and if it is necessary to interfere for securing the ends of justice, Section 369 cannot be a bar to the exercise of that power.

In the case reported in Raju v. Emperor AIR 1928 Lah 462(N), it is held that there is no conflict between Sections 369 and 561-A Cr. P. C. and that a Court has power under Section 561-A to alter or review its own judgment in cases of default and want of jurisdiction. Therefore Section 369 cannot be a bar for our reconsidering the application in Cr. P. 67 of 1955.

30. Another contention urged by the learned Counsel for the respondents was that the question of jurisdiction has been considered by the learned Chief Justice in Cr. P. 67/55, that he has given a finding that he had jurisdiction to deal with the matter and that therefore that order cannot be questioned by the Court. The fact that the learned Judge has held that he had jurisdiction to deal with the matter does not seem to be of much consequence.

No doubt, a Court has power to determine whether it has got jurisdiction to deal with or investigate a matter or not. Even if it should hold that it has got jurisdiction and if it is ultimately found that it has really no jurisdiction, the Court is competent to recall its original order. This is the view taken in the case reported in Rahmoni Dasi v. Ganada Sundari Dasi 19 Cal WN 84 : AIR 1915 Cal 49(O).

31. The second ground urged on the side of the petitioner as stated already is that the subject-matter of Cr. P. 67/55 arose out of a Bench decision and that a single Judge has no power to deal with it. As against this argument, it was contended by the learned Counsel for the respondents that the remarks sought to be expunged in the two criminal revision petitions are made only in the judgment of the learned Chief Justice, that the other Judge has nothing to do with those remarks and that, therefore, the learned Chief Justice could himself dispose it of.

I do not think the matter is so easy as contended by the learned Counsel. It is conceded that the judgment in Cr. R. Ps. 80 and 103 of 1954 is a Bench decision. The question is not whether the remarks sought to be expunged have appeared in the judgment of one or the other, A high principle is involved in considering this matter.

To accept the contention of the learned Counsel would be tantamount to laying down a principle that a single Judge can deal with a matter arising out of a Bench decision which contention appears to be contrary to all accepted and well-recognised principles of law and convention.

32. Even the contention that the other Judge constituting the Bench had nothing to do with the remarks made by his colleague in his judgment and that his not sitting with the other Judge for reconsidering the objectionable matter is of no consequence, cannot be accepted.

The possibility of the other Judge having influenced or persuaded his colleague to his own view cannot be excluded. We may not be wanting in instances where such a thing has happened. By the disposal of Cr .P. 67/55 by a single Judge, the petitioner-State Government have been deprived of an important advantage which otherwise may have accrued to them.

33. Under the above circumstances, I am of opinion that the order of dismissal made by the learned Chief Justice since retired should be ignored and Criminal Petition 67 of 1955 - re-heard and disposed of.

(The petition (Cr. P. 82/55) coming on for orders in view of the difference of opinion expressed above, the Chief Justice made the following : )

ORDER

34. This case is of an exceptional type which requires determination of the course to be adopted for its disposal in view of the difference of opinion in the Division Bench which heard it about the result. Reference to a third Judge is provided for under Sections 429 and 439, Cr. P. C, when such contingencies arise in an appeal or revision petition. This is not registered as either, and learned Counsel have not found any precedent for dealing with a situation such as the present one. In view of this and the absence of statutory provision particularly applicable to this, the same procedure as is prescribed for disposal of an appeal or revision petition when there is disagreement in a Division Bench may be followed. The existing conditions in the Court justify this as there is only one Judge available apart from the members of the Division Bench who can deal with the case and his view will be the deciding, factor. A Full Bench cannot be constituted without including therein both of us who have already expressed our individual opinion. As in any case the view of the third Judge has to prevail, the case is referred under Section 561-A of the Code for disposal by a third Judge in the manner provided under Section 429, Cr. P. C.

(The petition (Cr. P. 82/55) coming on for final hearing on 28-6-1956, Hombe Gowda, J,, made the following : )

ORDER

35. The facts of the case have been set out in sufficient detail in the two orders pronounced by my learned brothers and it is unnecessary to re-state them. It is in view of the difference of opinion in the Division Bench about the result of the case that the matter has been referred to me for disposal. My duty at the moment is to consider the question whether this Court can review the order passed by the then Chief Justice in Criminal Petition No. 67 of 1955 and hold that it was passed by him without jurisdiction and therefore is a nullity.

36. At the outset Sri Motaiya, the learned Counsel for the respondent took a preliminary objection regarding my jurisdiction to decide the matter sitting singly. He contended that since the Judges that constituted the Division Bench were divided in their opinion on the legal point, the matter cannot be dealt with or decided by a single Judge but should be referred to and decided only by a Full Bench. The circumstances that led to a reference being made to a single Judge for disposal have been fully set out in the order of reference. As observed in that order this extraordinary case has had an unusual career and for the reasons set out it became inevitable for the learned Judges to refer the matter to a single Judge for disposal. The order referring the matter to me for decision was passed after hearing the counsel for the parties. Hence I am of the opinion that there is no substance in the preliminary objection raised by the learned Counsel for the respondent and therefore it is rejected.

37. The sole question for decision as it turns out is whether this Court can declare that the order of the then Chief Justice in Criminal Petition No. 67 of 1955 is void ab initio having been passed without jurisdiction. It is urged by the learned Advocate-General that a Judge of this Court sitting singly has no right to deal with an application filed under Section 561-A of the Code of Criminal Procedure. Reliance is placed on the provisions of the Mysore High Court Act and Rule 31 and on a Notification dated 28th July 1952 specifying matters over which power is given to a Judge to make orders and the omission of applications filed under Section 561-A of the Code of Criminal Procedure in the same. The learned Advocate-General contends that the omission to include applications filed under Section 561-A of the Code of Criminal Procedure in the list clearly indicates that there is lack of authority for a single Judge to deal with such applications and that it was only a Division Bench that is competent to deal with or decide such applications. He, therefore, contends that the order passed by the then Hon'ble Chief Justice in Criminal Petition No. 67 of 1955 is a nullity having been passed without jurisdiction and should therefore be ignored. Sri Motaiya, the learned Counsel for the respondent, argues (and the matter was strenuously argued) that this Court cannot sit in judgment over the decision of the Chief Justice in Criminal Petition No. 67 of 1955 and should refuse to re-consider or review the matter. It is no doubt true that though the Criminal Revision Petitions in which the remarks which were sought to be expunged in Criminal Petition No. 67 of 1955 are passed, were dealt with and decided by a Division Bench, the then Chief Justice proceeded to hear the application filed under Section 561-A of the Code of Criminal Procedure for expunging the remarks sitting singly. An objection as to the jurisdiction of the learned Chief Justice to deal with the matter sitting singly was raised by the then Advocate-General and it was overruled by him. Section 561-A of the Code of Criminal Procedure does not confer on the High Court any new powers and it only provides that the powers that the Court had inherently possessed shall be preserved. The inherent powers of this Court are not the gift of the Statute. There is provision in the Mysore High Court Act under Section 16-B for petitions for revision in civil or criminal cases to be decided by a single Judge or to be referred to a Division Bench if he thinks fit under Rule 31 framed under Section 19 of the Mysore High Court Act. Certain matters can be dealt with and decided by a Judge of the High Court sitting singly. If the contention of the learned Advocate-General that a Judge, sitting singly can decide and dispose of cases relating to matters enumerated in the list in the Notification but he cannot review his own order or consider an application filed by a party under Section 561-A of the Code of Criminal Procedure for expunging the remarks passed by him is accepted it would lead to an undesirable absurdity. A Judge of this Court, who decides a revision petition sitting singly will become incompetent to decide a petition filed for the review of his judgment or order or an application for expunging of the remarks passed by him in the course of the order and is bound to refer the petition for disposal to a Division Bench. It is not and cannot be disputed that the powers of a single Judge of the High Court in a matter he has jurisdiction to dispose of are the powers of the High Court and cannot in any way be controlled by a Division Bench or even a Full Bench of the High Court. In my opinion the contention of the learned Advocate-General that a Judge of the High Court sitting singly loses his inherent power to review his own order and that power is impliedly taken away by the omission of applications filed under Section 561-A of the Code of Criminal Procedure in the Notification issued on the authority of the rules framed under the Mysore High Court Act is untenable. The inherent powers of a Judge of the High Court, which have been statutorily recognised by Section 561-A of the Code of Criminal Procedure, have general application and cannot be taken away by the Mysore High Court Act or the rules framed thereunder. Omission to include applications filed under Section 561-A of the Code of Criminal Procedure in the Notification or in the rules framed under the Mysore High Court Act, does not mean that there is no such power and the Court has a right to act on the principle that every procedure is understood as permissible till it is prohibited by law (Vide Hansraj Harjiwan v. Emperor AIR 1940 Nag 390)(P). In my view it is on account of the fact that the inherent powers are part and parcel of the Court and that Section 561-A of the Code of Criminal Procedure does not confer on the High Court any new power it is omitted in the list. It is therefore idle to contend that the omission has any special significance. The inherent powers of the High Court - whether of a Division Bench or of a single Judge - cannot be restricted or controlled much less taken away by any rule framed under the Mysore High Court Act.

38. The practice of this Court in respect of the disposal of petitions filed under Section 561-A of the Code of Criminal Procedure does not appear to be uniform and therefore does not afford any guidance to us. There are instances of applications filed under Section 561-A of the Code of Criminal Procedure having been dealt with by a single Judge of this High Court (Vide 35 Mys CCR 401 (G); 35 Mys CCR 454(IT) and 14 Mys LJ 419)(I). There are also instances of such applications having been dealt with by a Division Bench (Vide 46 Mys HCR 157(A) and 53 Mys HCR 365)(B).

39. The prayer of the learned Advocate-General if conceded, will not only place the Judges of the High Court in an unenviable position but will also lead to undesirable consequences inasmuch as no finality could be ensured, for at any time, a Division Bench of the High Court might be constituted, which under the guise of review might reverse or interfere with the order passed by a Judge sitting singly. It is legitimate to infer that the framers of Rule 31 and the Notification dated 28th July 1952 never intended to create such a situation. A somewhat similar question arose for consideration before the Calcutta High Court in Dahu Raut v. Emperor : AIR1933Cal870 . Lort-Williams and McNair JJ- who constituted a Division Bench had disposed of a batch of four criminal appeals under Section 421 of the Code of Criminal Procedure without notice to the State and had reduced the sentences in all those appeals. The Deputy Legal Remembrancer filed a petition under Section 561-A of the Code of Criminal Procedure before the Chief Justice of the Calcutta High Court complaining that the orders passed by the Division Bench reducing the sentences without notice to the State were illegal and had been made without jurisdiction. The learned Chief Justice while holding that he had no jurisdiction to interfere with the matter directed that the Legal Remembrancer could mention the matter before the Division Bench that decided those appeals and for that purpose re-constituted the same Bench. The Advocate-General argued before the Division Bench that the orders were illegal being made without jurisdiction and therefore the Division Bench had jurisdiction under Section 561-A of the Code of Criminal Procedure to review the orders. He contended that the Court had two alternatives only and should either dismiss an appeal summarily under Section 421 of the Code of Criminal Procedure or cause notice to be given and hear the appeal under Section 422 of the Code of Criminal Procedure. The learned Advocate-General therefore submitted that the Court could re-hear the appeals since the orders were void ab initio. Their Lordships repelled this argument and dismissed the petition, In the course of the judgment Lort-Williams J. observed:

Assuming that the Court has acted without jurisdiction, then he contends that it has power to treat the illegal orders as being void ab initio and to re-hear the matter on its merits and he has referred us to the case of ILR 47 Mad 428 : (AIR 1924 Mad 640)(F) and to the case of Ramesh Pada Mandal v. Kadambini Dassi ILR 55 Cal 417 : : AIR1927Cal702 and other cases. This must mean that any Judge or Bench of this Court may treat not only his or its own orders, but the orders of any other Judge or Bench of the Court as having been made without jurisdiction and being void ab initio and re-hear the matter on its merits.

There is no magic in the fact that the same two Judges are sitting together, as at the time when the alleged illegal orders were made. We have no greater and no less power than any other Bench of this Court. After we had signed the orders we were functus officio, and when we ceased to sit together, the Bench of which we were members ceased to exist, and could not ever be revived.

If one Bench had power to decide that the orders of another Bench were made without jurisdiction and were void ab initio a third Bench would have power to decide that the orders of the second Bench also were made without jurisdiction and so on ad infinitum.

Moreover, if the Chief Justice disapproved of the decision of any Bench, he could appoint another Bench to over-rule it, as being made without jurisdiction, or could appoint himself to sit with another Judge, and this actually was done once by Sir Barnes Peacock in a case mentioned in ILR 8 Cal 63 at p. 67(E).

I think, it is clear that the cases to which we have been referred were wrongly decided, and in my opinion the only remedy in such circumstances is to move the Local Government to exercise the Royal prerogative where the accused has been prejudiced - otherwise there is no remedy.

40. The above observations of His Lordship, if I may say so with respect, bring out precisely what I have in my mind in regard to the question before me. (See also Hale v. Emperor 9 Cri LJ 306(Lah)(S) and Edward Few v. Emperor AIR 1939 Lah 244)(T).

41. The learned Advocate-General argued that if this Court refused to review the order and post Criminal Petition No. 67 of 1955 for re-hearing great hardship and irreparable loss would be caused to those persons against whom certain remarks had been passed in proceedings to which they were not parties. It is no doubt true that remarks which are sweeping in nature couched in harsh language have been passed against persons who were not parties to the case. But the then learned Chief Justice before whom this fact was mentioned was of the opinion that those remarks were inseparable from the judgment and any attempt to expunge them was likely to mutilate and touch the fabric of his judgment. I have no jurisdiction to decide how far those observations of His Lordship are justifiable. By virtue of the Constitution of India, those parties that are aggrieved by the irrelevant remarks passed against them are entitled to take up the matter to the Supreme Court of India and got them expunged.

42. It follows from the above discussion that I have no doubt in my mind that this Court has no jurisdiction to re-hear the petition filed by the petitioner in Criminal Petition No. 67 of 1955 and this petition should be dismissed.

43. Accordingly this Criminal Petition is dismissed.


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