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Criminal Miscellaneous No. 429 of 1976, decided on 7th October 1976.

--- S. 369 read with S. 561-A-Judgment/order, review of-Order of High Court, if not falling within definition of judgment-Can be review ed and limitation contained in S. 369, Cr. P. C. being applicable only to judgment would not extend to such cases-An earlier order, however, cannot be recalled or reviewed unless passed without jurisdiction or in violation of mandatory provision of law or of principles of natural justice-Question whether S. 468, P. P. C. covered by S. 463, P. P. C. referred to in S. 195, Cr. P. C., not considered during hearing of earlier petition-Question, held, such as would fall within type of cases, where orders can be reviewed, on ground of failure to consider a principle of law.-[Review-Judgment].

Putta Venkatrayudu v. The State A I R 1957 Andh. Pra. 943 ref.

Soomar v. The State P L D 1967 Kar. 80; Mohammed Hanif v. The State P L D 1974 Kar. 22; Gulzar Hassan Shah v. Ghulam Murtaza P L D 1970 S C 335' Mohammad Ehsan v. The State P L D 1968 Lah. 451 and Chandra Bhai v. Abdul Qaddus Behari P L D 1966 Kar. 122 ref.

S. 195 read with S. 561-A-Quashment of proceedings-Petitioner appearing before Court by virtue of forged power of attorney and repre senting and acting on behalf of its alleged executant--A "party to the proceedings", as envisaged by S. 195, Cr. P. C.--Complaint filed by private party under S. 468/471, P. P. C., in respect of forged power of attorney, held, not competent and entertained by Court without jurisdiction-Proceedings quashed, in circumstances.

Putta Venkatrayudu v. The State A I R 1957 Andh. Pra, 943 ref.

Muhammad Ali Sheikh for Applicants.

Nooruddin Sarki for the State:

G. M. Durrani for Respondent No. 2.

Date of hearings 23rd September, 1976.

Respondent Ramzan filed a direct application against the present applicants before the Civil Judge and Ist Class Magistrate, Dadu under sections 466, 467, 468/34/109/129, P. P. C. The main contention in the complaint was that the applicant Nizamuddin had, on the authority of a forged power of attorney executed by one Asif Ali, managed to get transfer of certain agricultural land in his own favour. The other accused persons are alleged to have abetted the crime of preparing the forged power of attorney. After holding the preliminary inquiry, the learned Civil Judge and Magistrate 1^st Class, vide his order dated the 5th February, 1976, came to the conclusion that prima facie an offence punishable under section 468 read with sec tion 34, P. P. C. appeared to have been committed. He, therefore, directed the process to be issued against the present applicants.

The applicants by an application under section 561-A, Cr. P. C. challeng ed the issue of the process in this Court on 18-3-1976, claiming that the pro visions of section 195, Cr. P. C. have been violated as only a Court and not a private party could file such complaint. That application was heard and dismissed by me in limine by my order dated the 7th April, 1976. One of the grounds for dismissal of the application was that section 468, P. P. C. was not listed among the sections given in clause (b) or (c) of section 195, Cr. P. C.

The second application was moved under section 561-A, Cr. P. C. on 21st April, 1976 claiming that though section 468, P. P. C. is not mentioned in section 195, Cr. P. C. but this section is covered by the phrase "offences referred to in section 463, P. P. C," On this ground a prayer is made that in the absence of a complaint from the Court of competent jurisdiction, the proceedings before the learned Civil Judge & 1st Class Magistrate shall be held as beyond jurisdiction and quashed as such.

The first objection taken by the learned counsel for the respondent was that the second application amounts to a review of earlier order of this Court, and therefore it is barred by section 369 of the Cr. P. C. He relies upon a judgment from the Indian Jurisdiction Putta Venkatrayudu v. The State (A I R 1957 Andh. Pra. 943). The view taken in this case is that section 561-A confers no new powers on the High Court and the Court cannot in purported exercise of inherent powers surmount the limitations imposed by section 369; and that in this view an application under section 561-A, Cr. P. C. for re-hearing an appeal, is not competent. Section 369, Cr. P. C. clearly states that when a Court has signed its judgment, it shall not alter or review the same except to correct a clerical error.

The question would be if the order dated 7th April, 1976 amounts to a judgment or not. By such order this Court declined to interfere in the proceedings before the .F. C. M.. Dadu. Such an order cannot amount to a judgment. In Soomar v. The State (P L D 1967 Kar. 80) the view taken is that the orders and decisions of the High Court do not fall within the definition of a judgment. This was in confirmation of an earlier view taken in Mohammad Hanif v. The State (P L D 1974 Kar. 22), where an order of enhancement of sentence was held not to fall within the definition of a judgment.

The holding in these two cases is that an order of the High Court, when it does not fall within the definition of judgment, can be reviewed, and the limitation contained in section 369, being applicable only to a judgment would not extend to such cases. This view is duly supported by Supreme Court authority contained in Gulzar Hassan Shah v. Ghulam Murtaza (P L D 1970 S C 335).

However, the principle laid down in the above two cases as well as the Supreme Court authority is that an earlier order can be recalled or reviewed only were such order is passed without jurisdiction or in violation of manda tory provision of law or of the principles of natural justice. It is clearly stated in Soomar's case cited above that Mohd. Hanif's case was no authority fur the proposition that there is jurisdiction to review an order or decision of the High Court in criminal cases, which are not judgments within the meaning of section 369, Cf. P. C., but only for the more limited proposition that in exceptional cases there is such power.

Here the question whether section 468, P. P. C. was covered by sec tion 463, P. P. C. referred to in section 195, Cr. P. C. is involved and was not considered at the time of earlier hearing. Failure to consider a principle of law has always been held to be improper exercise of jurisdiction. As such it would fall within the type of cases where the orders can be reviewed.

In Mohammad Ehsan v. The State (P L D 1968 Lah. 451) the question whether an offence under section 468, P. P. C. was covered by section 195, Cr. P. C. was consi dered and it was held that the expression any offence described in section 463', as occurring in section 195 (1) (c), Cr. P. C. gives a clear indication that all kinds of forgeries are covered by it. In Chandra Bhai v. Abdul Qaddus Behari (P L D 1966 Kar. 122) similar view was expressed.

Learned counsel for the respondents readily conceded to the power of this Court to review its earlier order in this case and to the proposition that an allegation of an offence under section 468 with respect to documents produced or relied upon in a ju6icial proceedings can only be entertained on the complaint of a Court. But he contended that Nizamuddin, having acted as an Attorney does not fall within the definition of a 'party to the proceedings' as envisaged by section 195, Cr. P. C. The contention has no force. Nizamuddin, no doubt was acting as an Attorney but he appeared before the Court only by virtue of being such an attorney. He was representing Asif Ali and in proceedings before the Court, where he appeared as his Attorney, he had acted on his behalf. He therefore, very much falls within the definition of a party to the proceedings. In State v. Sardar Shah Bukhari (P L D 1975 Lah. 1407) an Attorney before the Supreme Court was held to be a party and, there fore, it was declared that a complaint by that Court was necessary to give jurisdiction to the Court to entertain a complaint for offences under sec tion 468/471, P. P. C.

In view of the fact that the complaint was not filed by the Court seized of the matter in which the alleged forged power of attorney was filed, learned civil Judge and 1^st Class Magistrate, Dadu, having entertained the complaint of a private party, acted beyond jurisdiction. The proceedings are, therefore, quashed.

Proceedings quashed.

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