Criminal Courts Of District Judiciary Lacks Inherent Powers To Review, Modify Or Recall Orders: Kerala High Court Reiterates

The Kerala High Court has held that criminal courts of district judiciary cannot exercise any power of review, modification or even recall of orders/ judgements.

The Court was dealing with a petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 challenging the recalling of an order by the Special Court under the Narcotic Drugs and Psychotropic Substances Act, 1985.

A bench of Justice Bechu Kurian Thoman observed, "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." 

The Petitioner was represented by Advocate Jefrin Jose while the Respondents were represented by Public Prosecutor Noushad K.A. 

The Petitioner faces an indictment for the offences under Sections 22(c) and 29(1) of the Narcotic Drugs and Psychotropic Substances Act, 1985 and was granted statutory bail. Pursuant to the condition directing the surrender of his passport before the Special Court, the 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. However, on noticing that the condition directing surrender of the passport was imposed by the High Court and there was no stipulation enabling the Special Court to modify the conditions, the order releasing the passport was recalled. The said impugned order stands challenged in the present petition.

The Court at the outset noted that when the 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 the High Court. Therefore, modification of the conditions imposed in the bail order could have been permitted only by the High Court. 

It further observed that instead of applying for modification of the said condition before the Court which granted bail, the Petitioner approached the Special Court and the application for release of his passport was allowed which was subsequently recalled due to lack of jurisdiction to relax condition.

"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," the court observed.

The Court thus affirmed that the Special Court not only lacked jurisdiction to relax bail conditions, it also lacked the same to recall the order.

The petition was accordingly allowed.

Cause Title: Farhan vs State of Kerala (2024:KER:79112)

Appearances: 

Petitioner- Advocate Jefrin Jose, Advocate S. Suresh Babu and Advocate Jasmine Ligy

Respondents- Public Prosecutor Noushad K.A.

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