The petitioner was granted bail by the High Court in an NDPS case and as a condition of bail his passport was handed over to the Special Court. The bail conditions were changed by the Special Court and his passport was ordered released. This order was later recalled by another order of the Special Court which was challenged in the High Court.

Judge Bechu Kurian Thomas held that the criminal courts of the district judiciary have no inherent power to exercise any power of review, modification or even recall of their previous orders.

“..it is explicit that the criminal courts of the district judiciary cannot reverse their previous orders. An illegal order or order without jurisdiction cannot be corrected by another illegal order or order without jurisdiction. The use of another illegality to remedy a previous illegality cannot be undertaken.

The Court said that when the bail conditions were imposed by the High Court, the Special Court could not have varied them without permission. She held that the bail conditions could only have been varied by the High Court.

The Court noted that the Special Court had recalled its passport release order after finding that it had no jurisdiction to vary the bail conditions imposed by the High Court.

The Court noted that the first order passed by the Special Court for issuance of passport is devoid of legal authority. She added that even the subsequent order recalling the earlier order was also issued without authorization, since the first order was not subject to any challenge.

The Court went on to state that even the High Court has limits in invoking its inherent powers to recall its previous judgments or orders. He said that as per Section 362 of the CrPC, the High Court may modify or revise its judgment or order after decision only to correct clerical or arithmetical errors.

“The criminal courts of the district judiciary, which include sessions courts, magistrate courts and even special courts, are not vested with any inherent powers. In the absence of any attribution of power, the above-mentioned courts cannot exercise any power of review, modification or even revocation. Even the High Court is not vested with such powers despite the existence of the inherent power, in view of the specific prohibition under Section 362 Cr.PC. Of course, the High Courts can only resort to the inherent power to recall a judgment or order to a limited extent, despite the restriction under Section 362 Cr.PC”

Thus, the Court set aside the order of the Special Court recalling its earlier order.

Counsel for the applicants: lawyers Jefrin Jose, S.Suresh Babu and Jasmine Ligy

Counsel for the defendants: Attorney General Noushad KA

File number: Farhan vs State of Kerala

File title: CRL.MC NO. 6884 FROM 2024

Citation: 2024 LiveLaw (Ker) 666

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