CRIMINAL LAW/SUPREME COURT

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IS IT TIME TO REVISIT K.M. MATHEW CASE?*
by Sidharth Luthra* and Madhav Khurana**

Cite as : (2006) 2 SCC (Cri) J-5

In Adalat Prasad1 and Subramanium Sethuraman2, the view taken 14 years ago in K.M. Mathew case3 was upset. Consequently, the High Courts all over India have been flooded with petitions under Section 482, Code of Criminal Procedure, 1973 (hereinafter referred to as "the Code") for quashment of orders on cognizance and orders issuing process (summons or warrants). Apart from the strain on the already overburdened High Courts, it is felt that the view taken in Adalat Prasad1 and in Subramanium Sethuraman2 proceeds on a strict interpretation of the Code of Criminal Procedure, 1973.

The Mathew3 era had ushered in a term "interim order" as distinct from a "final" or "interlocutory order". In the absence of any provision akin to Sections 239(2) and 245(2) CrPC existing in the Code for seeking discharge or dropping of proceedings in a warrant case, as opposed to a summons case, Mathew case3 assumed the existence of inherent powers with a Magistrate's Court to act ex debito justitiae. However, in the old Code of Criminal Procedure, 1898 as well as the Code of Criminal Procedure, 1973, there is no provision recognising inherent powers in a Magistrate's Court. In 1923 with an amendment to the 1898 Code, Section 561-A was introduced to the Code of 1898 laying down thus:

"561-A. Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice."

Though the section referred to the inherent powers of the High Court, in a series of decisions, it was made clear by various High Courts and even by the Privy Council4 that: (AIR p. 19)

"It is not correct to say that Section 561-A has given increased powers to the Court which it did not possess before that section was enacted. The section gives no new powers, it only provides that those which the Court already inherently possess shall be preserved and is inserted, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of the Criminal Procedure Code."

The question that arises is whether a court of original criminal jurisdiction, that is, a Magistrate's Court, has inherent powers, akin to Section 561-A of the 1898 Code or Section 482 of the 1973 Code as both these provisions merely recognise the inherent powers that vest in the High Courts and do not accord the High Courts any new power. On a similar reasoning, the Magistrate's Court, being a court of original criminal jurisdiction, by its very existence, would have inherent powers and jurisdiction to right wrongs, check abuse of law and correct errors of fact and law, however, subject to the prohibitions contained in Section 3625 of the 1973 Code. The availability of inherent powers of a Magistrate's Court has long been recognised in India6 as also in various Commonwealth jurisdictions7 Keeping in view this perspective, we need to consider the relative merits of the view taken in Mathew case3 as against the view taken in Adalat Prasad and Subramanium Sethuraman2. It may be noted that neither of the two latter decisions of 2004 recognise the inherent power of the Magistrate's Court which was recognised in Mathew case3.

The nature of an order issuing process or which is loosely called as "summoning order", is thus pertinent for consideration as to whether a modification or reconsideration of the same could be prohibited under Section 362 of the Code. In Amar Nath v. State of Haryana8 the Supreme Court has held that the term "interlocutory order" denotes order purely interim or temporary in nature which does not decide or touch upon the important rights or liabilities of the parties and any order which substantially affects the right of the parties cannot be said to be an interlocutory order. In Rajendra Kumar Sitaram Pande9 the Supreme Court, while considering the nature of an order issuing process, said that it is partly interlocutory and partly final and hence revisional jurisdiction would not be prohibited. This was a landmark case in view of the statutory bar under Section 397 of the Code prohibiting the exercise of revisional jurisdiction against interlocutory orders. However, in a subsequent decision of SWIL Ltd. v. State of Delhi10, where the facts were that after taking cognizance, the Court initially issued process against some accused and thereafter against certain other accused without waiting for the stage of evidence, the process issued against the second lot of accused was challenged. The Supreme Court upheld the issue of process thus:

"In our opinion, once cognizance has been taken by the Magistrate, he takes cognizance of an offence and not the offenders; once he takes cognizance of an offence it is his duty to find out who the offenders really are and once he comes to the conclusion that apart from the persons sent up by the police some other persons are involved, it is his duty to proceed against those persons. The summoning of the additional accused is part of the proceeding initiated by his taking cognizance of an offence."11

The conclusion that can be derived from SWIL10 is that an order issuing process is distinct from an order on cognizance and hence an order issuing process can be reconsidered and would be interlocutory or interim in nature.

There are, in essence, three kinds of orders passed by original criminal court: (a) a judgment which decides the entire case; (b) final orders which cannot be re-examined by the court passing the order, but could be subjected to revisional jurisdiction of a higher court under Section 397 or 401 CrPC; and (c) interlocutory or other miscellaneous/administrative orders which, on the one hand cannot be subjected to revisional jurisdiction, yet keeping in mind the inherent powers of the Magistrate or Sessions Court, can be reconsidered by that court itself.

As the only limitation contained in the Code is under Section 362 CrPC (Section 369 of the 1898 Code), which talks of a final order or a judgment, there can be no prohibition for a Magistrate to review his or her own order(s) provided they are neither final nor in nature of a judgment. The reasoning behind Section 362 CrPC is that where a court has become functus officio or where proceedings have obtained finality, there is no power to reconsider the same and the only option would be to move the higher court.

In fact an order issuing process, whether by way of summons or by warrants, is an order which is liable to be reviewed or reconsidered. Further, in view of the fact that the Code of Criminal Procedure has an underlying element which surfaces through various provisions i.e. the procedure of trial of an accused has to be just, fair and reasonable and must promote justice, the power of review and recall of orders other than those restricted by Section 362 CrPC cannot be ruled out.

It is felt that K.M. Mathew decision3 was not contrary to the philosophy of the Code. Merely because there is no similar provision to Section 245(2) CrPC for complaints in summons cases the Magistrate's Court would not be deprived of their existing inherent powers, which would enable them to re-examine and reconsider orders issuing process, if they be gravely erroneous on facts or in law.

Apart from the fact that this view may be in line with the recognised principle of inherent powers of any Court, acceptance of it would help in avoiding the increased workload on the High Courts which has resulted as a consequence of Adalat Prasad1 and Subramanium Sethuraman2.

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* M.Phill., Cambridge, Advocate Return to Text

** Advocate Return to Text

1. Adalat Prasad v. Rooplal Jindal, (2004) 7 SCC 338 : 2004 SCC (Cri) 1927 Return to Text
2. Subramanium Sethuraman v. State of Maharashtra, (2004) 13 SCC 324: 2005 SCC (Cri) 242 Return to Text
3. K.M. Mathew v. State of Kerala, (1992) 1 SCC 217 : 1992 SCC (Cri) 88 Return to Text
4. Emperor v. Khwaja Nazir Ahmad, AIR 1945 PC 18 Return to Text
5. "362. 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." See also Section 369 in Criminal Procedure Code, 1878. "369. 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." Return to Text
6. Patel Bhagubhai Ranchhodas v. Bai Arvinda, AIR 1937 Cal 334 Return to Text
7. Liverpool City Council v. Plemora Distribution Ltd., 2002 EWHC 2467 (Adm); R. v. Southwark London Borough Council, (2004 EWCA Civ 1689) Return to Text
8. (1977) 4 SCC 137 : 1977 SCC (Cri) 585 Return to Text
9. Rajendra Kumar Sitaram Pande v. Uttam, (1999) 3 SCC 134 : 1999 SCC (Cri) 393 Return to Text
10. (2001) 6 SCC 670 : 2001 SCC (Cri) 1205 Return to Text
11. Raghubans Dubey v. State of Bihar, AIR 1967 SC 1167, p. 1169, para 9 cited in SWIL Ltd. v. State of Delhi, (2001) 6 SCC 670 at p. 673, para 6. Return to Text