Criminal Courts Of District Judiciary Cannot Recall Their Orders: Kerala High Court

The petitioner was granted bail by the High Court in an NDPS case and as a bail condition his passport was surrendered before the Special Court. The bail condition was modified by the Special Court and his passport was ordered to be released. This order was later recalled by another order of the Special Court which challenged before the High Court.

Justice Bechu Kurian Thomas held that criminal courts of the District Judiciary have no inherent power to exercise any power of review, modification or even to recall their earlier orders.

“..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.”

The Court stated that when the bail conditions were imposed by the High Court, the Special Court could not have modified such bail conditions without authority. It held that the bail conditions could have been modified only by the High Court.

The Court noted that the Special Court recalled its order for releasing the passport on finding that it had no jurisdiction to modify the bail conditions imposed by the High Court.

The Court noted that the first order issued by the Special Court for releasing passport is without legal authority. It went on to state that even the subsequent order recalling its earlier order is also issued without authority, since there was no challenge against the first order.

The Court went on to state that even the High Court has limitations in invoking its inherent powers to recall its earlier judgments or orders. It stated that as per Section 362 of CrPC, the High Court can alter or review its judgment or order after disposal only to correct clerical or arithmetical errors.

“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.”

As such, the Court quashed the order of the Special Court recalling its earlier order.

Counsel for Petitioners: Advocates Jefrin Jose, S.Suresh Babu, Jasmine Ligy

Counsel for Respondents: Public Prosecutor Noushad K A

Case Title: Farhan v s v State of Kerala

Case No: CRL.MC NO. 6884 OF 2024

Citation: 2024 LiveLaw (Ker) 674

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