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1987 DIGILAW 263 (KER)

SARDAR G. SINGH v. HARDEEP SINGH

1987-06-26

SANKARAN NAIR

body1987
Judgment :- 1. This is a petition under S.482 of the Code of Criminal Procedure by the accused in CC 220/86 in the court of Chief judicial Magistrate, Ernakulam. The prayer in the petition is vague and precision is not its virtue. The veiled prayer is either to review the order of this court in Crl. MC 178/87, or to quash the complaint in CC 220/86, which was earlier declined. 2. Crl. MC 178/87 was to quash the complaint in CC 220/86. A learned judge of this court (S. Padmanabhan, J.) by order dated 30-3-87 dismissed the same. The learned judge found on merits that the allegations in the complaint, if taken as correct, would constitute an offence. Neither the petitioner nor his counsel was heard, because despite two adjournments nobody appeared. 3. Petitioner would say that the order was passed 'without affording a reasonable opportunity for the petitioner to be heard'. I am not inclined to agree. The order of the learned judge reveals that the case was adjourned on 26-3-87 in the absence of the petitioner and his counsel, to give another opportunity. On 30-3-87 also, neither the counsel nor the petitioner appeared. It was in this circumstance that the learned judge proceeded to decide the case. Hence the contention must fail. That apart, a petition for review in a criminal proceeding will not lie. In Bhanu v. Vilasini (1980 KLT 13), a learned Single Judge of this court after surveying the law on the subject held that an application for review cannot be entertained under S.482 of the Code. A similar view was expressed in Kannan v. Food Inspector (AIR 1965 Kerala 37). In Sankantha Singh and others v. State of UP (AIR 1962 SC 1208), the Supreme Court had occasion to consider the question. The court held that an appeal once disposed of on merits, cannot be reopened or restored to file. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh (AIR 1975 SC 1002), this view was re-affirmed. In State of Orissa v. Ramachandra Agarwal (AIR 1979 SC 87), once again, the Supreme Court held that inherent powers cannot be invoked to review, more so, when the Code prohibited review. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh (AIR 1975 SC 1002), this view was re-affirmed. In State of Orissa v. Ramachandra Agarwal (AIR 1979 SC 87), once again, the Supreme Court held that inherent powers cannot be invoked to review, more so, when the Code prohibited review. S.362 of the Code of Criminal Procedure in clear terms states: "No Court when it has signed its judgement or final order disposing of a case, shall alter or Review the same except to correct a clerical or arithmetical error" (Underlining supplied) It is pertinent to note that the corresponding provision in the earlier Code viz. S.369 made a saving in the case of a High Court, in matters governed by letters patent or other instrument. This was deleted. Hence, review is not only not permissible, but prohibited. What is prohibited by other provisions of the Code cannot be done under S.482. The section only saves the inherent power of the High Court to make such orders as may be necessary 'to give effect to any order under this Code'. The specific bar in S.362 cannot be over-reached. Some decisions of this court appear to have taken a contrary view of Rajan v. Vijayan 1970 KLT 495 and Kunhammad v. Abdul kader 1977 KLT 840). Even at the time these decisions were rendered, the decision of the Supreme Court in AIR 1975 SC 1002 held the field. Then came the pronouncement of the Supreme Court in AIR 1979 SC 87. The decisions aforesaid are no longer good law, in the light of the decisions of the Supreme Court. 4. S.482 does not confer any new power on the court. It only preserves the inherent power in the court. It only preserves the inherent power that the court has. This was the view in Emperor v. Nazir Ahamed (AIR 1945 PC 18). The statement of law by the Privy Council was approved by the Supreme Court in State of UP v. Mohammed Niam (AIR 1964 SC 703). Again, in State of Orissa v. Ramachandra Agarwal (AIR 1979 SC 87), the position has been reiterated. The power of review must be a power by conferment. There is no conferment, nay, there is a prohibition. 5. Alternate contention of the petitioner is that the complaint should be quashed. Again, in State of Orissa v. Ramachandra Agarwal (AIR 1979 SC 87), the position has been reiterated. The power of review must be a power by conferment. There is no conferment, nay, there is a prohibition. 5. Alternate contention of the petitioner is that the complaint should be quashed. This plea also must fail, and it runs contra to the doctrine of finality of judgments. A like prayer was considered on merits and rejected. The same issue cannot be agitated over again. May be, in cases where there is a charge of circumstance, as in the case reported in 1975 SC 1002, a second application may lie. That was a case where a prayer to quash the complaint was declined, in the first instance but allowed later, on the ground that no headway was made in the criminal complaint even after long time. In these circumstances, abuse of process of court was found. The claim of the petitioner finds no support in principle, or precedent. For the foregoing reasons, the Crl. MC is without merit and is dismissed.