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2013 DIGILAW 430 (CAL)

In the matter of : B. N. Elias & Co. LLP. v. .

2013-07-09

TOUFIQUE UDDIN

body2013
JUDGMENT 1. This is an application for cancellation of bail and to recall the order dated 08.04.2013, passed in CRM No. 4963 of 2013. 2. The background of this case in brief is as follows:- The de facto complainant filed a complaint dated 18.2.2013 before the learned Chief Judicial Magistrate, North 24Parganas, Barasat under Section 420/466/467/468/471/120B of the Indian Penal Code against the accused persons. Barasat Police Station Case No. 408 of 2013 dated 24.02.2013 was started. On 06.03.2013, the private respondents were arrested and on 04.04.2013 they filed an application for bail in CRM 4963 of 2013. On 08.04.2013 the Hon’ble Court enlarged the petitioners on bail. 3. It was alleged that during hearing of the bail application the present petitioners were not notified and heard. Out of the above noted Sections of offences the punishment for offence, under Section 467 of the Indian Penal is up to 10 years or imprisonment for life. As per Rule 9(2)(iii) of the Calcutta High Court Appellate Side Rules, such bail application should be placed before a Division Bench. There was no scope for the Hon’ble Single Bench to exercise jurisdiction over this matter. So prayer was made for recalling of the order dated 08.04.2013 and cancelling the bail granted by the order. 4. The learned lawyer of the de facto complainant submits that the impugned order dated 08.04.2013 be recalled, as it was coram non judice and the order itself is a nullity and as such he also prayed for cancellation of the bail. 5. The learned lawyer of the State submits that the order cannot be recalled because the Court has become functious officio and in view of the bar under Section 362 of the Code of Criminal Procedure this Court has no jurisdiction to pass any order either in the form of recalling or cancellation of the bail. He further submits that the remedy lies for cancellation of bail before the Division Bench. 6. The learned lawyer of the accused/opposite party submits that to recall the impugned order tantamounts to commission of another error in view of the bar under Section 362 of the Code of Criminal Procedure. He further submits that only course open is to move a revision and go to higher forum. In support of his submission, the learned lawyer of the accused/opposite party stated before me a decision as reported in Panduram Vs. He further submits that only course open is to move a revision and go to higher forum. In support of his submission, the learned lawyer of the accused/opposite party stated before me a decision as reported in Panduram Vs. State of Maharashtra AIR 1987 SC 535 and contends that this Court became functuous officio and cannot recall the impugned order. 7. The point for consideration is whether this Bench can recall its earlier order dated 8.4.2013 or not. 8. To appreciate this case from a better perspective Rule 9(2)(iii) of the Calcutta High Court Appellate Side Rules and Section 362 of the Code of Criminal Procedure need to be reproduced: Rule 9 (2) – All appeals, Reference or Revision in respect of Sentence or Order of any Criminal Court shall be heard by a single Judge: Provided, however, that the following matters shall be placed before a Division Bench consisting of two or more Judges: (iii) All Bail Applications at the pre-conviction stage involving offence where sentence may exceed imprisonment for 7 years. 362. Court not to alter Judgment.- Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. 9. Needless to mention that a large number of learned lawyers of this Court were requested to give their valued views as amicus curiae. Showing extremely high quality of gesture they helped this Bench by giving their opinion over the matter in controversy. Some opined that the impugned order can be recalled as it being a complete nullity is not hit by Section 362 of the Code of Criminal Procedure while some other learned lawyers submitted that the Court cannot recall the order in view of the bar under Section 362 of the Code of Criminal Procedure. 10. The case was filed in the present Bench. It is not the situation that from other Bench the case has been sent. Certification of the case has duly been given by the office. It is true ‘eternal vigilance’ they say, is the price of liberty. But it is equally true that ‘to err is human’. 10. The case was filed in the present Bench. It is not the situation that from other Bench the case has been sent. Certification of the case has duly been given by the office. It is true ‘eternal vigilance’ they say, is the price of liberty. But it is equally true that ‘to err is human’. It is also more than true, if anything is, that there is a marked difference between ‘deliberate assumption of power’ to take up a case in a Bench dehors legally bestowed jurisdiction and ‘erroneous assumption of jurisdiction’ through oversight or unintentional escape of notice. 11. The accused/petitioners lodged an application for bail. Their learned lawyer moved the prayer. The learned lawyer of the opposite party/State participated in the hearing. But unfortunately none of them brought the fact to the notice of court that the matter requires to be dealt with not by this Bench but by a Division Bench. Be it relevantly mentioned that another case being CRM 4962 of 2013 almost between the same parties with Sections except Section 467 of the Indian Penal Code was heard the same day on 8.4.2013 one after another. But unfortunately, it escaped the notice that this case has Section 467 of the Indian Penal Code inter alia amongst other petitioners. 12. The learned lawyers are Court officers. But probably they too overlooked the fact that the matter relates to Division Bench. Moreover, there is no mandate in the Code of Criminal Procedure that the de facto complainant must be notified for hearing of the bail petitioner in a State case when the learned Public Prosecutor has been informed and State lawyer took part in the hearing. The Registry of the High Court should not have listed the matter before a Single Bench. In course of busy Court proceedings, it is difficult to check the jurisdictional matter if no attention is drawn to the Bench. Be that as it may, with all humility the Court feels that since the order was passed by this Bench, the fault is entirely with the Judge himself as he ought to have been more cautious and verified the case. Of course, out of sheer escape of notice, the hearing was taken up. Undoubtedly, the order ex facie is without jurisdiction and is a ‘nullity’ and accordingly coram non-judice. 13. The worth of administration of justice is the secret dispension of justice. Of course, out of sheer escape of notice, the hearing was taken up. Undoubtedly, the order ex facie is without jurisdiction and is a ‘nullity’ and accordingly coram non-judice. 13. The worth of administration of justice is the secret dispension of justice. The beauty of the same is unbiasness, equity and balance of judgment between the proportionality of the dispute and the rationality of the consideration. 14. The Learned lawyer of the present petitioner/defacto complainant referred to a decision in People’s University Vs. State of Maharashtra & Anr. Reported in (2012) 9 SCC 714 . That cannot be put into application here because that is not a criminal case but a writ case. So, the principle of Section 362 of the Code of Criminal Procedure is not applicable there. 15. Learned lawyer of the accused persons referred to a case in Panduram vs. State of Maharashtra AIR 1987 SC 575 (supra) wherein it was propounded that what can be done only by at least two Judges cannot be done by one Judge. Even if the decision is right on merits, it is by a forum which is lacking in competence with regard to the subject matter. Even a ‘right’ decision by a wrong forum is no decision. It is non-existent in the eye of law. And hence a nullity. Thus where the appeal against the acquittal of accused in respect of offence punishable with a sentence of imprisonment exceeding two years was heard by the single Judge of the High Court, though under Rules it was required to be heard by a Division Bench of the High Court, the order setting aside the acquittal, passed by the single Judge setting aside the acquittal in such appeal would be liable to be set aside. That case is distinguishable and hence not applicable because of reasons recorded hereunder. 16. The impugned order being passed without jurisdiction is ‘nullity’. There is no doubt about it. The term ‘nullity’ is defined in Oxford Dictionary as ‘the state of being legally invalid or void’, in Webster’s Dictionary as ‘invalid’ and in other Dictionary ‘nullity’ means ‘nothingness’. 17. Relevantly, the word ‘alter’ or ‘review’ as appearing under Section 362 of the Code of Criminal Procedure is of extreme significance. There is no doubt about it. The term ‘nullity’ is defined in Oxford Dictionary as ‘the state of being legally invalid or void’, in Webster’s Dictionary as ‘invalid’ and in other Dictionary ‘nullity’ means ‘nothingness’. 17. Relevantly, the word ‘alter’ or ‘review’ as appearing under Section 362 of the Code of Criminal Procedure is of extreme significance. The word ‘alter’ means ‘to change or replace’ whereas the word ‘review’ means ‘a view already taken earlier is given second thought or a second or additional study or consideration of certain facts etc. or reexamination’. In case of both ‘alter’ and ‘review’, there is existence of one fact or aspect, which are replaced by altering or reviewing or reexamination. Therefore, the existence of the aspect remains but the word ‘recall’ means to call back or to cancel or revoke. The existence of a particular aspect from a particular place is taken back creating a void condition and leaving nothing in the place wherefrom the matter has been recalled. ‘Recall’ is not equal to ‘alter’ or ‘review’. So, in case of ‘alter’ or ‘review’ something available in the original position. But in case of ‘recall’ nothing is available in changed circumstances in the original position. Therefore, the term ‘recall’, in my humble opinion, may not come within the rigours of Section 362 of the Code of Criminal Procedure which relates to alteration or review of a final order. 18. Since the impugned order is a ‘nullity’ it means ‘nothingness’. The term ‘nothingness’ means ‘no order/zero’. If this be so, the High Court is to revert back to the initial stage as if no order is passed on 08.04.2013. Thereby it means the operation of Section 362 of the Code of Criminal Procedure does not come into play because it relates to a valid order only. Since the impugned order is ‘no order’, so it is not valid and amenable to Section 362 of the Code of Criminal Procedure. 19. In State of Punjab Vs. Debindar Pal Singh Bhullar & Ors. Since the impugned order is ‘no order’, so it is not valid and amenable to Section 362 of the Code of Criminal Procedure. 19. In State of Punjab Vs. Debindar Pal Singh Bhullar & Ors. reported in (2011) 14 SCC 770 , para 46 says “If a judgment has been pronounced without jurisdiction in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. 20. In Sohan Lal Baid Vs. State of West Bengal & Ors. reported in AIR 1990 Calcutta 168, it was propounded that the cardinal position is that before jurisdiction over the subject matter is exercised, the case must be legally brought before the concerned Court for its hearing and determination and that a judgment pronounced by a Court without investment of jurisdiction is void. 21. In (2010) 3 C Cr LR (Cal) 314, Sri Sudip Sen vs. State of W.B. it was held that Section 362 of the Code of Criminal Procedure has no manner of application since the order is neither a final order nor a judgment in the eye of law. 22. In Usman Bhai Daud Bhai Memon & others vs. State of Gujarat, AIR 1988 Supreme Court 922, the Supreme Court held that it cannot be doubted that the grant or refusal of a bail application is essentially an interlocutory order. 23. In 1982 Cri.L.J. 297 (Prem Singh Vs. State & Anr.) it was held by a Full Bench of J. & K. High Court that there is no provision either in the J. and K. Constitution act of 1996, or in the Letters Patent enabling the High Court to alter or review its judgment passed in exercise of its criminal jurisdiction. In 1982 Cri.L.J. 297 (Prem Singh Vs. State & Anr.) it was held by a Full Bench of J. & K. High Court that there is no provision either in the J. and K. Constitution act of 1996, or in the Letters Patent enabling the High Court to alter or review its judgment passed in exercise of its criminal jurisdiction. It necessarily follows that S.369 of the J. and K. Cr.P.C. does not give to J. and K. High Court increased powers which any other High Court in India does not possess under the corresponding Section of the Criminal P.C., 1898. Section 561-A is couched in identical terms in both the Codes. 24. Thus, where the decision has been validly pronounced and is not a nullity, the High Court has no power to revoke, review or alter its own judgment in a criminal case whether such decision has been rendered in exercise of its appellant or revisional jurisdiction. 1979 Cri.L.J. 33 (SC). Rel. on. 25. If there is no decision because it is a nullity, the bar under S.369 of the Code of Criminal Procedure cannot operate. Cases are conceivable where the order passed in appeal or revision is a nullity not because of any procedural noncompliance by the Court of appeal or revision, which goes to the root of the matter, but because the order passed by the trial Court itself is found to be a nullity. That may be so where the trial. Court has passed the order in violation of principles of natural justice and the appellate or the revisional court had no jurisdiction of its own to make an order but its jurisdiction is only to confirm or set aside the order of the trial Court. In such cases, the order passed in appeal or revision would be a nullity because in law the order of the trial Court will be deemed to be non-existent and it would necessarily follow that there was no order which the appellant /Court or the revisional Court would confirm or set aside. Consequently, it shall be open to the appellate court or the revisional court, as the case may be, to proceed to rehear the case as if the order already passed by it did not exist. Section 369 Cr.P.C. would not stand in its way. (1925) 26 Cri LJ 370 (Mad) and (1927) 28 Cri LJ 831 (Cal) Rel. Consequently, it shall be open to the appellate court or the revisional court, as the case may be, to proceed to rehear the case as if the order already passed by it did not exist. Section 369 Cr.P.C. would not stand in its way. (1925) 26 Cri LJ 370 (Mad) and (1927) 28 Cri LJ 831 (Cal) Rel. on. 26. Whether under Section 561-A, Cr.P.C. (now Section 482 of the Code of Criminal Procedure), the High Court has power to revoke, review, recall, or alter its own order in a criminal case, the judicial opinion in the country was divided. The High Courts of Allahabad, Punjab, Mysore and Patna had held that the High Court had such power while the High Courts or Madras, Andhra Pradesh, and Himachal Pradesh had expressed a contrary view. Accordingly the following question was referred for an authoritative decision by a larger Bench of this Court namely: “Whether the High Court has power to revoke, review, recall or alter its own decision in a criminal case and rehear the case and in particular, whether it has the power to do so, in respect of a decision previously rendered in a criminal revision?” 27. The question has been dealt with at length in a recent judgment of the Supreme Court in State of Orissa Vs. Ram Chander ( AIR 1979 SC 87 ): (1979 Cri.L.J. 33). The Supreme Court has held that S.369 of the Cr.P.C., 1898, precludes a High Court from altering or reviewing a judgment passed in exercise of its appellate or revisional jurisdiction when once it has signed it. Further the Court has held, that S.561-A cannot be invoked to exercise powers which are inconsistent with any of the specific provisions of the Code and consequently a High Court has no power to alter or review its own judgment which is specifically prohibited by Section 369 by providing that no Court, when it has signed its judgment, shall alter or review the same except to correct a clerical error. 28. 28. Section 369 of the Criminal P.C., 1898 reads 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.” 29. The question arises whether the bar against alteration or review would be applicable where the decision is a nullity. It seems to us that if there is no decision because it is a nullity, the bar cannot operate. To this view support is lent by the decisions in the matter of T. Somu Naidu (AIR 1924 Mad 640) : (26 Cri.L.J 370) and Ramesh Pada Mandal Vs. Kadambini Dasi (AIR 1927 Cal 702) : (28 Cri.L.J. 831) in which it was held that where the conditions laid down by law as precedent and requisite to the hearing of the case are not observed, the Court acts without jurisdiction and its order is, therefore, void ab initio and the case can be reheard and that such rehearing would not be barred by section 369 of the Cr.P.C., 1898. In either case it was found that the requirements of Section 439(2) had not been complied with in the hearing of the revision, and consequently the order passed was void ab initio and that it was, therefore, open to the Court to rehear the case on merit and that S.369 could not stand as a bar. These cases are only illustrative. 30. Therefore, the Full Bench decision 1982 Cri.L.J. 297 (Prem Singh Vs. State & Anr.) (supra) fits to a T in this case. 31. So, I am of the view that the impugned order may be recalled. Accordingly, the order dated 08.04.2013 stands recalled and the accused persons are directed to surrender before the Court below. 32. No report is forth coming that the accused persons misused the bail, granted earlier. So, this point is also worth to be considered. 33. The petitioners may approach the appropriate forum for redress. Urgent Xerox Certified copy of this order be given to the parties if applied for, upon compliance of necessary formalities.