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TMI Blog1990 (3) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... e", "creating elements of considerable embarrassment when the court finally comes to decide on the question of delay" finally. It may be noted that the decision in Krishnamsami, AIR 1917 PC 179, has been referred to with approval by the Supreme Court in Dinabandhu Saha v. Jadumoni Mangaraj, AIR 1954 SC 411. If we may add, with respect that such a practice is also violative of the fundamental priniciples of natural justice according to which, as pointed out by Vivian Bose J. in the decision of the Supreme Court in Sangram Singh v. Election Tribunal, AIR 1955 SC 425, no proceeding affecting the life, liberty or the property of a person must be allowed to be held behind his back without giving him an opportunity of participating therein. Though the Privy Council in Krishnasami, AIR 1917 PC 179, and the Supreme Court in Sangram Singh, AIR 1955 SC 425, were dealing with matters in the civil jurisdiction, the principle enunciated therein must a fortiori apply to criminal prosecution, where not only the resultant conviction but even its continuation puts the personal liberty of the person proceeded against in some peril. In all such cases, therefore, the party sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the launching of a prosecution is over and without giving him an opportunity to explain his case as to why the delay should not be condoned". The Division Bench in Asiatic Oxygen [1978] 2 Cal HCN 412, accordingly, quashed the ex parte order passed by the Magistrate in that case extending the time and condoning the delay and the order of taking cognisance on such extension and condonation. The Division Bench, however, ruled that the trial Magistrate would be at liberty to issue notice to the accused named in the petition of complaint and decide the question of extension/condonation after hearing the proposed accused on that score and to pass appropriate orders. We also propose to act accordingly and quash the ex parte order of extension/condonation passed by the Magistrate without notice to the petitioners and would direct the Magistrate to decide the question of extension/ condonation with notice to the petitioners and to proceed in accordance with law. But a query, before we conclude. The Division Bench decision of this court and all the decisions of the other High Courts relied on therein have ruled issuance of notice to the person sought to be prosecuted before e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not conferred upon the court by section 151 of the Code of Civil Procedure, but are powers inherently possessed by the court and the Legislature only thought it fit to insert an express saving provision by that section, which, however, would have existed even without and independently of that section. As ruled in Manohar Lal Chopra, AIR 1962 SC 527 (at page 534), "the inherent powers have not been conferred upon the court, it is a power inherent in the court by virtue of its duty to do justice". Now, if according to the three-judge Bench decision in Padam Sen, AIR 1961 SC 218, and the four-judge Bench decision in Manohar Lal Chopra, AIR 1962 SC 527, all the civil courts would have all the inherent powers even de hors any statutory recognition, it may be difficult to understand why all the subordinate criminal courts would not have inherent powers, even without their statutory recognition. And, in view of these larger Bench decisions to the effect that section 151 of the Code of Civil Procedure, dealing with saving of inherent powers, does not confer, but only recognises the existence of these powers, it may be similarly difficult to understand how the Supreme Court in this t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to this decision, therefore, the order of the Magistrate dropping all proceedings and thus nullifying the order of restoration passed earlier was approved. But once the complaint was restored and proceeded with, how could the Magistrate thereafter set the restoration at naught and drop all proceedings, save in the exercise of his inherent power for the ends of justice and to prevent abuse of the process of law? As would be apparent from the decision of the Supreme Court in Mulraj v. Murti Raghunathji, AIR 1967 SC 1386, when the court is satisfied that orders passed by it were not proper and were not to be passed, it can set them aside only in the exercise of its inherent powers. Even as to the order dismissing the complaint for non-appearance on the date fixed for the appearance of the accused, we do not know how the Magistrate could do so except in the exercise of his inherent power. But, in view of the course we propose to adopt as indicated hereinbefore, this question need not be pursued any further. The revisional application, accordingly, succeeds and the impugned order passed ex parte and without notice to the petitioners are quashed and the case is sent back t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court reading as "at any rate, at the stage of section 202 or section 204 of the Code of Criminal Procedure as the accused had no locus standi, the Magistrate had absolutely no jurisdiction to go into any materials or evidence which may be produced by the accused who could be present only to watch the proceedings and not to participate in them" : Smt. Nagawwa v. Veeranna Shivalingappa Konjalgi, AIR 1976 SC 1947. As a matter of fact, among the other High Courts, the Madras and the Andhra Pradesh High Courts took a view contrary to our view. In Sulechana v. State Registrar of Chits, Madras [1978] Crl LJ 110 (Mad), it was observed : "when a complaint is preferred by anyone, whether it be by an aggrieved person or otherwise, the court can take the complaint on file and, incidentally, take cognizance of the offence or offences complained of therein subject to defeasance of the complaint and cognizance on the ground of limitation". Reliance has been placed upon a Single Bench decision of our High Court in C. R. Irani v. State [1977] Crl LJ 160 (Cal). Reviewing a good number of decisions, the Andhra Pradesh High Court summed up in K. Hanumantha Rao v. K. Narashima R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide the question of limitation before taking cognizance and that will be in consonance with the spirit and letter of the provision. In taking a contrary view, inspiration cannot be had from the Supreme Court decision in Smt Nagawwa, AIR 1970 SC 1947, since the Supreme Court prohibits participation of the accused while the court is considering the question of taking cognizance and issuance of process. In determining the question of limitation after hearing the accused, no such participation occurs. On determination of the question of limitation only, process is not issued. The Court has, thereafter, to apply its mind to the complaint or police report to decide whether cognizance is to be taken and process is to be issued. The procedure suggested by us has found favour with the Madhya Pradesh High Court in Krishna v. State of M. P. [1977] Crl LJ 90 and in another earlier Andhra Pradesh decision in Bharat Hybrid Seeds and Agro Enterprises v. State [1978] Crl LJ 61. The single judge in the former case was not unmindful of the fact that in the Code there is no provision for a notice to the accused. Thus, I have set out reasons for according with the view expressed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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