Farhan.V.S vs State Of Kerala
2024 Latest Caselaw 30080 Ker

Kerala High Court

Farhan.V.S vs State Of Kerala on 24 October, 2024

Author: Bechu Kurian Thomas

Bench: Bechu Kurian Thomas

Crl.M.C No.6884/24                 1

                                                        2024:KER:79112
                 IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

             THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

     THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946

                         CRL.MC NO. 6884 OF 2024

          AGAINST THE ORDER DATED 23.07.2024 in CRMP 14/2024 IN SC

   NO.539 OF 2023 OF SPECIAL COURT FOR SC/ST (POA) ACT & NDPS ACT

                             CASES, MANJERI

PETITIONER:

              FARHAN V.S
              AGED 22 YEARS, S/O. SAJID.V.A,
              VALIYAKATH HOUSE,
              SDPY ROAD, NAMBIAPURAM,
              PALLURUTHY P.O. KOCHI,
              ERNAKULAM DISTRICT, PIN - 682006


              BY ADVS.
              SRI.JEFRIN JOSE
              SRI.S.SURESH BABU
              SMT.JASMINE LIGY




RESPONDENTS:

              STATE OF KERALA
              REPRESENTED BY PUBLIC PROSECUTOR,
              HIGH COURT OF KERALA, PIN - 682031



              SRI. NOUSHAD K.A., PUBLIC PROSECUTOR


      THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
14.10.2024, THE COURT ON 24.10.2024 PASSED THE FOLLOWING:
 Crl.M.C No.6884/24                    2

                                                                 2024:KER:79112
                                                                           "C.R."


                         BECHU KURIAN THOMAS, J
                        ---------------------------------
                          Crl.M.C No.6884 of 2024
                        ---------------------------------
                     Dated this the 24th day of October, 2024



                                    ORDER

Petitioner faces an indictment for the offences under Sections 22(c) and

29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985. Petitioner

was granted statutory bail as per the order in Crl.M.C No.3491/2023 by a

learned single Judge of this Court after imposing conditions. Pursuant to the

condition directing surrender of his passport before the Special Court,

petitioner surrendered his passport. Later, he filed an application before the

Special Court for its release. Without noticing the absence of authority to

modify the conditions, the Special Court allowed the application and directed

the passport to be released as per Annexure 2 order dated 17-05-2024.

However, on noticing that the condition directing surrender of the passport was

imposed by this Court and there was no stipulation enabling the Special Court

to modify the conditions, the order releasing the passport was recalled by

another order dated 23-07-2024, which is produced as Annexure 5. The order

of recall is under challenge in this proceeding under section 528 of the

Bharatiya Nagarik Suraksha Sanhita, 2023.

2. I have heard Sri. Jefrin Jose, the learned counsel for the petitioner

as well as Sri. Noushad K.A., the learned Public Prosecutor.

2024:KER:79112

3. Concededly, when petitioner was granted statutory bail by the High

Court after imposing conditions, there was no stipulation enabling the Special

Court to relax the conditions imposed by this Court. Therefore, modification of

the conditions imposed in the bail order could have been permitted only by the

High Court. Instead of applying for modification of the said condition before

the Court which granted bail, petitioner approached the Special Court and the

application for release of his passport was allowed. However, on noticing the

absence of any jurisdiction to relax the conditions, the Special Court, recalled

its earlier order.

4. True, the initial order directing release of the passport was legally

without authority. Nevertheless, the impugned order recalling the earlier order

is equally without legal authority. The order directing release of the passport

was without authority, but it was not challenged. Without any challenge

against it, the trial court could not have recalled its earlier order.

5. The criminal courts of the District Judiciary which include the Sessions

Courts, the Magistrate Courts and even the Special Courts are not conferred

with any inherent power. In the absence of any conferment of power, the

aforenoted courts cannot exercise any power of review, modification or even

recall. Even the High Court is not vested with such powers despite the

availability of the inherent power in view of the specific bar under section 362

Cr.P.C. Of course, High Courts can take recourse to the inherent power to

recall a judgment or order only to a limited extent, notwithstanding the

restriction under section 362 Cr.P.C.

6. In the decision in State of Punjab v. Davinder Pal Singh Bhullar

2024:KER:79112 and Others [(2011) 14 SCC 770] it was observed that there is no power of

review with the Criminal Court after judgment has been rendered and the High

Court can alter or review its judgment before it is signed. It was further noted

that when an order is passed, it cannot be reviewed and the Court is

disentitled to entertain a fresh prayer for any relief unless the former order is

set aside by a Court of competent jurisdiction in a manner prescribed by law.

7. Similarly, while dealing with a case that arose under the Cr.P.C of

1898, the Supreme Court had in Bindeshwari Prasad Singh v. Kali Singh

[(1977) 1 SCC 57] held as follows ".............there is absolutely no provision in

the Code of Criminal Procedure of 1898 empowering a Magistrate to review or

recall an order passed by him. Code of Criminal Procedure does contain a

provision for inherent powers, namely, Section 561A which, however, confers

these powers on the High Court and the High Court alone. Unlike Section 151

of Civil Procedure Code, the subordinate criminal courts have no inherent

powers. In these circumstances, therefore, the learned Magistrate had

absolutely no jurisdiction to recall the order dismissing the complaint. The

remedy of the respondent was to move the Sessions Judge or the High Court

in revision."

8. In view of the above propositions, it is explicit that the criminal courts

of the District Judiciary cannot recall their earlier orders. An illegal order or an

order without jurisdiction cannot be corrected by another illegal order or

another order without jurisdiction. Resort to another illegality to rectify an

earlier illegality cannot be undertaken. In the instant case, without any

challenge to the earlier order directing release of the passport, the Special

2024:KER:79112 Court could not have recalled its earlier order on its own. Hence, the impugned

order is without authority or jurisdiction.

9. Accordingly, the impugned order dated 23-07-2024 in Crl.M.P

No.14/2024 in S.C. No.539/2023 on the files of the Special Court for SC/ST

(POA) Act & NDPS Act Cases, Manjeri, is hereby set aside.

This criminal miscellaneous case is allowed.

Sd/-

BECHU KURIAN THOMAS JUDGE

vps

2024:KER:79112 APPENDIX

PETITIONER ANNEXURES

Annexure 1 A TRUE COPY OF THE ORDER DATED 22/8/2023 IN CRL.M.C. NO. 3491/2023 PASSED BY THIS HON'BLE COURT

Annexure 2 A TRUE COPY OF THE ORDER DATED 17/5/2024 PASSED BY THE SPECIAL COURT FOR SC/ST (POA) ACT AND NDPS ACT CASES, MANJERI IN CRL.M.P. NO. 14/2024 IN S.C. NO. 539/2023

Annexure 3 A TRUE COPY OF THE SHOW CAUSE MEMO DATED NIL

Annexure 4 A TRUE COPY OF THE EXPLANATION DATED 20/7/2024 SUBMITTED BY THE PETITIONER BEFORE THE SPECIAL COURT FOR SC/ST (POA) ACT & NDPS CASES, MANJERI IN CRL.M.P. NO. 14/2024 IN

Annexure 5 CERTIFIED COPY OF THE ORDER DATED 23/7/2024 PASSED BY THE SPECIAL COURT FOR SC/ST (POA) ACT & NDPS ACT CASES, MANJERI IN CRL.M.P. NO.

Annexure 6             A   TRUE  COPY   OF  THE  NOTIFICATION  NO.
                       G.S.R.570(E) DATED 25/8/1993 (PUBLISHED IN
                       THE GAZETTE OF INDIA, EXTRA PART IIS. 3(I)
                       DATED 25/8/1993) ISSUED BY THE CENTRAL
                       GOVERNMENT UNDER CLAUSE (a) OF THE PASSPORT
                       ACT, 1967

Annexure 7             A TRUE COPY OF THE DICTUM LAID DOWN BY THIS
                       HON'BLE COURT IN ASOK KUMAR VS. STATE OF
                       KERALA [2009 ICO 754]

Annexure 8             A TRUE COPY OF THE DICTUM LAID DOWN BY THIS
                       HON'BLE COURT IN HARIS K. VS. STATE OF KERALA
                       [2010 ICO 2027]

Annexure 9             A TRUE COPY OF THE DICTUM LAID DOWN BY THIS
                       HON'BLE COURT IN MUHAMMED VS. STATE OF KERALA
                       & ANOTHER [2012 ICO 1394]