P L D 1962 (W (PLP)

NAZEER AHMED MAHMOOD, J.‑This is an application under section 561‑A, Criminal Procedure Code for review of the order, dated the 27th of February 1961, of Mr. Justice Abdul Hameed who dismissed the revision petition filed by the petitioner against the order, dated the 23rd of May 1960, of the Additional City Magistrate (Court II), Karachi. A dispute giving rise to proceedings under section 145, Criminal Procedure Code, has arisen between the present petitioner and Staag Limited, represented by Abdullah Ahmad. Staag Limited is an assignee from the Sind Industrial Trading Estate, while the petitioner is an assignee from one Saleh Shah. The order passed by the Magistrate in the aforesaid proceedings became the subject‑matter of a revision petition before the Sessions Judge who, in turn, by his order dated the 31‑8‑59 made a reference to the High Court. Accepting the recommendation of the Sessions Judge Mr. Justice Abdul Hameed directed by his order dated the 25th January 1960, that the land in dispute plot D/92 be attached until the decision of the main dispute which was pending in the Civil Court between Saleh Shah and the Sind Industrial Trading Estate. Pursuant to this order, the learned Magistrate proceeded to attach the disputed land and to that end issued an order to the Secretary of the Sind Industrial Trading Estate to separate this plot D/92 from plot D/93. Anwar Ahmad, the petitioner (who is an assignee from Saleh Shah), came up in revision against the afore said order of the Magistrate, dated the 23rd of May 1960. Mr. Justice Abdul Hameed, as already mentioned, dismissed this revision petition.

3. The question to be examined in the present application for review is whether the High Court can review its order passed in revision. There is no specific provision in the Criminal Proce dure Code empowering the High Court to review its judgment or order. On the other hand, section 369, Criminal Procedure Code, seems specifically to prohibit it. Section 369 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 established by Royal Charter, by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error." It is clear from the wording of the section that after the judgment of the High Court has been signed and pronounced, it cannot be altered or reviewed except for the purpose of correcting its clerical mistakes. The learned counsel for the petitioner has urged that the, order passed by the High Court in revision is not a judgment and, therefore, section 369, Criminal Procedure Code cannot be said to be a bar to the reviewing of an order passed by the High Court. He has, however, not been able to cite any authority in support of his contention that the order passed by the High Court in revision is not a judgment in terms of section 369, Criminal Procedure Code. His line of reasoning is that an order passed in proceedings under section 145, Criminal Procedure Code, is not a judgment and, therefore, any order passed in revision by the High Court from an order passed during those proceedings is also not a judgment. He has cited Thikka Surya Rao and others v. Sirangu Sathiraju and an other ((1948) 49 Cr. L J 754). On page 755 of this reported judgment, the learned Judge has observed:‑ "In the light of these authorities, the question has to be considered as to whether the order of the Sub‑Divisional Magistrate declaring one of the parties to be in possession within two months of the preliminary order is a judgment. Sections 366 and 367 do not in terms apply to proceedings under section 145, Criminal Procedure Code. It is well‑settled that proceedings under the latter section cannot be a `trial' wherein the provisions laid down for the trial of cases under the Code of Criminal Procedure have to be adopted and following the observations contained in the decisions above mentioned by which I am bound, I am inclined to hold that a decision under section 145, Criminal Procedure Code, cannot be a judgment within the meaning of the term in section 367."

4. It is significant that sections 366 and 367, Criminal Procedure Code, relate to the judgments of Criminal Courts other than the High Court and contemplate only judgments arising out of "trials". The learned counsel f or the petitioner has not been able to cite any authority in support of his contention that the orders pronounced by the High Court in revisions arising out of proceedings under section 145, Criminal Procedure Code, are not judgments In terms of section 369, Criminal Procedure Code. 5: The learned counsel for the petitioner has urged that the High Court in exercise of its powers under section 561‑A can review its orders even though section 3691bars any such review. The learned counsel for the respondents have met this contention with the view expressed in Edward Few v. Emperor (A I R 1939 Lah. 244), wherein Abdur Rashid, J., following the view expressed in 10 Lahore I (a D. B. Authority), observed as follows :‑ "Section 561‑A does not confer upon the High Court new powers but merely declares that such inherent powers as the Court may possess shall not be deemed to be limited or affected by any thing contained in the Code. The High Court has, therefore, no power to alter or review its own judgment in a criminal case, once it has been pronounced and signed, except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on the merits, or to correct a clerical error ; nor is there any conflict between that section and section 369 of the Code."

6. The counsel for the respondents have urged that even if the order of the learned Judge of the High Court dismissing the revision petition be not considered a judgment, as contemplated in section 369, Criminal Procedure Code, his order cannot be reviewed inasmuch as finality attaches to such orders. In support of his contention he has cited Namdeo Sindhi v. State (A I R 1958 Orissa 20). It was observed in this judgment :‑ "Though the order of dismissal of a criminal revision will not be a judgment within the meaning of section 369, Criminal Procedure Code, nor will such an order be controlled by sec tion 430, Cr. P. C., which applies only to appeals, yet finality attaches to that order, and it is not open to the same High Court to review or alter the same. "It is not open to the High Court to review or alter its own order summarily dismissing a criminal revision petition merely because it has subsequently come to light that prior to that date the parties had lawfully compounded the offence. To allow such a review would be clearly against the principle of finality of orders of dismissal passed by the High Court." Although in the judgment reported in Raj Narain v. State (A I R 1958 All. 315), cited by the petitioner's counsel, the view of the two Judges of the Full Bench was that the High Court had the power to revoke, review, recall or alter its own earlier decision in a criminal revision and re‑hear the same, yet they hedged round this view with the following three conditions. They observed : "This can be done only in cases falling under one or other of the three conditions mentioned in section 561‑A, namely: (i) for the purposes of giving effect to any order passed under the Code of Criminal Procedure, (ii) for the purpose of preventing abuse of the process of any Court, (iii) for otherwise securing the ends of justice". It was further clarified by Dayal, J. in this judgment: "It would be a matter for a determination by the Court in each individual case whether the circumstances of the case make out that purpose and make it incumbent on the Court to exercise that power to achieve it. This section does not confer any inherent power on the High Court. It only saves such inherent power which the High Court possessed from before. An inherent power implies by its very nature a power which cannot be expressed in terms but which must reside in a Court for achieving the higher and the main purpose of a Court, namely, the purpose of doing justice in a cause before ft and for seeing that the act of the Court does no injury to any of the suitors." The Chief Justice of Allahabad High Court gave a dissenting judgment and ex pressed his views in the following words:‑ "A judgment of a High Court passed on an appeal (as distinguished from a judgment passed on a reference or revision) is final and cannot in my opinion be reviewed by the Court in the exercise of its inherent powers, for the exercise of such powers would be inconsistent with the principle of finality em bodied in section

430. The principle of finality applies, however, no less to a judgment or order made by a Court in the exercise of its revisional powers . . . . . The High Court, as soon as its judgment in a criminal revision case has been signed and sealed, becomes functus officio and has no power to revoke, review, recall or alter the order it has already made, assuming of course that that order was made in the exercise of its jurisdiction : If for any reason the Court makes an order without jurisdiction that order or judgment is a nullity and the application in which it was made must be reheard."

8. I find myself in respectful agreement with the view expres sed by Mr. Justick O. H. Mootham, Chief Justice of the Allahabad High Court, and the view expressed in A I R 1958 Orissa

20. The order passed by Abdul Hameed, J. on the 27th of February 1961, in the exercise of revisional jurisdiction of the High Court must be held to be final in so far as this Court is concerned. I, therefore, see no force in this petition and dismiss it. K. B. A. Petition dismissed.