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TMI Blog1968 (12) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional 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 Magistrate 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 'Mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hips 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: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Prad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 jail custody . 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee 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 I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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