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2001 DIGILAW 45 (JK)

Nisar Ali (Dr. ) v. Mohd. Shafi Dar (Dr. )

2001-02-20

O.P.SHARMA

body2001
1. The inherent jurisdiction of this court is sought to be invoked to correct the error found in the judgment of this court dated: 20.08.1999 rendered in case Dr.Nissar Ali vs. Dr.Mohammad Shaft Dar. The facts relevant for the purpose are these:- 2. A complaint under section 500 Ranbir Penal Code was filed by Dr. Mohammad Shafi Dar against Dr. Nissar Ali and one M.Y. Bhat. The City Magistrate, Srinagar vide order dated: 31.07.1998 took cognizance of the offence and issued process against Dr. Nissar Ali. The court dismissed the complaint against M.Y. Bhat. 3. Dr. Nissar Ali challenged the order of taking cognizance and sought quashing of the proceedings under Section 561-A of Code of Criminal Procedure on the ground that no offence was disclosed against him and also that in the absence of sanction u/s 197 Cr.P.C. the Magistrate could not have taken cognizance. 4. The complainant Dr. Mohammad Shafi having noticed this infirmity in the judgment has approached this court for correction of the record on the ground: i) That the accused being an employee of the University he was not removable from service by the Government, as such, sanction for his prosecution under Section 197 Cr.P.C. was not necessary; and ii) That the finding of the court that since the accused is public servant within the meaning of Section 21 of the Ranbir Penal Code and thus sanction was necessary without making any reference to the scope of Section 197, is an error apparent on the face of the record which must be corrected to prevent abuse of the process of the court. 5. Mr. M.A. Qayoom, learned counsel appearing for the complainant (petitioner herein) submits that the error which is apparent on the face of record can be corrected by the court in exercise of the constitutional power being a court of record and also under inherent powers of the court in view of the law laid down in M.M. Thomas vs. State of Kerela 2000(1) SCC 266. Mr. B.A.Bashir, appearing for accused on the other hand argued that the petitioner in fact seeks the review of the judgment which is expressly barred under Section 369 of the Code of Criminal Procedure. In support of this he placed reliance on the judgment of the Supreme Court in A.V.B. AIR 2001 SC 43. Mr. B.A.Bashir, appearing for accused on the other hand argued that the petitioner in fact seeks the review of the judgment which is expressly barred under Section 369 of the Code of Criminal Procedure. In support of this he placed reliance on the judgment of the Supreme Court in A.V.B. AIR 2001 SC 43. The question involved is whether this court can in exercise of inherent jurisdiction review its own judgment/order under Section 369 of Cr.P.C. passed in exercise of appellant or revisional jurisdiction under the code of Criminal Procedure. In case this jurisdiction is traceable to Section 369 Cr.P.C.the same may be exercised. Not otherwise because the Section 561-A Cr. P.C. may not be of any help in this behalf. 6. This takes us to Section 369 Cr.P.C. which reads as follows:- "369. Court not to alter judgment save as otherwise provided by this code or by any other law for the time being in force, or, in the case of the High Court, by the Constitution of High Court, no court, when it has signed its judgment, shall alter or review the name except to correct clerical error." The scope of this Section was considered by the Full Bench of this court in Prem Singh vs. State and another (1982 KLJ 55). The Full Bench while relying on the judgment of the Supreme Court in State of Orrisa vs. Ram Chander Agarwal (AIR 1979 SC 87) ruled that Section 369 of the Code precludes the High Court from altering or reviewing a judgment passed in exercise of its appellant or revisional jurisdiction when once it has signed it. Their Lordships also found that Section 561-A Cr.P.C. cannot be invoked to exercise power which are inconsistent with any specific provision of the code, since Section 369 Cr.P.C. prescribed the prohibition, therefore, it was ruled that this court has no power to alter or review its judgment. Their Lordships also found that Section 561-A Cr.P.C. cannot be invoked to exercise power which are inconsistent with any specific provision of the code, since Section 369 Cr.P.C. prescribed the prohibition, therefore, it was ruled that this court has no power to alter or review its judgment. However, in case any judgmenr or order has been passed without hearing the party aggrieved of it the full Bench ruled that such an order being nullity the same can be recalled by observing as under:- "....cases are conceivable where the order passed in appeal or revision is a nullity not because of any procedural non-compliance by the court of appeal or revision, which goes to the root of the matter, but because the order passed by the trial court itself is found to be a nullity. That may be so where the trial court has passed the order in violation of principles of natural justice and the appellate or the revisional court had no jurisdiction of its own to make an order but its jurisdiction is only to confirm or set aside the order of the trial court. In such cases, the order passed in appeal or revision would be a nullity because in law the order of the trial court will be deemed to be non-existent and it would necessarily follow that there was no order which the appellate court or the revisional court would confirm or set aside. Consequently, it shall be open to the appellate court or the revisional court, as the case may be, to proceed to rehear the case as if the order already passed by it did not exist. Section 369 Cr.P.C. would not stand in its way." 7. However, this judgment is silent so far as the error apparent on the face of record is concerned. The principal laid down in Agarwal Case (Supra) (AIR 1979 SC 87) has once again been reiterated by the Apex Court in Hari Singh Mann vs. Harbhajan Singh Bajwa and others (AIR 2001 SC 43) holding as under- "Section 362 of the Code mandates that 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. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error...." However, Section 362 of the Code of Criminal Procedure 1973 (Central) is not in parimatera with Section 369 of the State Code of Criminal Procedure, because while enacting the new code the parliament modified Section 369 of the old code of 1898 by omitting " in the cases of High Court by the Letters Patent or other instrument constituting the High Court." This is not so in our code. In order to appreciate this distinction both the Sections are reproduced below:- "362. Court not to alter judgment. 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. "(Central) "369. Court not to alter judgment-Save as otherwise provided by this code or by any other law for the time being in force or, in the case of the High Court, by the constitution of High Court, no court, when it has signed its judgment, shall alter or review the same, except to correct clerical error."(State) 8. The distinction between the two provisions is self evident because Section 369 of the State Cr.P.C. is intact and, therefore, the inherent power of the court u/s 94 of the constitution as a court of record is preserved which is not case with Section 362 of the Central Code. Section 93 of the Constitution of Jammu and Kashmir provides for the Constitution of the High Court. It reads as under:- "93. Constitution of High Court:- (1) There shall be a High Court for the State, consisting of a Chief Justice and two or more other Judges. Section 93 of the Constitution of Jammu and Kashmir provides for the Constitution of the High Court. It reads as under:- "93. Constitution of High Court:- (1) There shall be a High Court for the State, consisting of a Chief Justice and two or more other Judges. (2) The High Court exercising jurisdiction in relation to the state immediately before the commencement of this Constitution shall be the High Court for the State." Section 369 of our code has made reference to this provision. The High Court being a court of record has power to correct its own record. This power is conferred on the High Court by Section 94 of the State Constitution which reads as under:- "94. High Court to be a Court of record:-The high Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself or of the courts subordinate to it." 9. The extent of power of court of record under the Constitution was once again examined by the Supreme Court in case M.M. Thomas vs. State of Kerala 2000(1) SCC 666 while reiterating the earlier decision of the court their lordships held as under:- "14. The High court as a court of record, as envisaged in Article 215 of the Constitution must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it. The High Courts power in that regard is plinery. In Naresh Sharidhar Nirajkar vs. State of Maharashtra AIR 1967 SC 1 a nine Judge Bench of this court has recognised the aforesaid superior status of the High Court as a court of plinery jurisdiction being a court of record. 15. In Halsburys Laws of England (4th Edn. vol. The High Courts power in that regard is plinery. In Naresh Sharidhar Nirajkar vs. State of Maharashtra AIR 1967 SC 1 a nine Judge Bench of this court has recognised the aforesaid superior status of the High Court as a court of plinery jurisdiction being a court of record. 15. In Halsburys Laws of England (4th Edn. vol. 10 para 713) it is stated thus:- The Chief distinction between superior and inferior courts are found in connection with jurisdiction. Prhnafacie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular court. An objection to the jurisdiction of one of the superior courts of general jurisdiction must show that other court has jurisdiction, so as to make it clear that the exercise by the superior court of its general jurisdiction is un-necessary. The High Court, for example, is a court of universal jurisdiction and superintendency in certain classes of actions, cannot be deprived of its ascendancy by showing that some other court could have entertained the particular action." Though the above reference is to English courts the principle would squarely apply to the superior courts in India also). 16. Referring to the said passage and relying on the decision of this court in Naresh Shridhar Mirajkar a two-Judge Bench of this court in M.V.Elisabeth vs. Harwan Investment & Trading (P) Ltd. has observed thus (AIR Headnote). "The High Courts in India are superior courts of record. They have original and appellate jurisdiction. They have inherent and plinery powers. Unless expressly or impliedly barred, and subject to the appellate or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited jurisdiction.... 17. If such power of correcting its own record is deemed to the High Court, when it notices the apparent errors its consequences is that the superior status of the High Court will dwindle down. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record. 18. Therefore, it is only proper to think that the plenary powers of the High Court would include the power of review relating to errors apparent on the face of the record. 18. In the aforesaid view of the matter we are not disposed to interfere with the impugned order though we are not deciding the question whether the failure to put forth a contention would amount to concession being made by the State Counsel as envisaged in Section 8-C(2) of the Act." So if the error is apparent on the face of the record it is constitutional duty of the court to correct the same. 10) The next question is whether the error is apparent on the face of record. The question which this court was confronted while deciding the case was whether the accused against whom process has been issued is a public servant removable from service by the Government. The learned Single Bench examined this question only with reference to Section 21 of the RPC without going into the second part of the question. No doubt the accused being employee of the University of Kashmir is public servant, but whether he is removed from the service by the Government or the University had to be decided before deciding the application of Section 197 Cr.P.C. Section 197(1) reads as under:- 197. Prosecution of Judges and public servants:- (1) When any person who is Judge within the meaning of Section 19 of the Ranbir Penal Code or when any Magistrate, or when any public servant who is not removable from his office save by or with the sanction of the State Government or the Government of India, is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duties, no court shall take cognizance of such offence except with the previous sanction:- (a) in the case of persons employed in connection with the affairs of the Union, of the Government of India; and (b) in the case of persons employed in connection with the affairs of the State, of the Government." So the Section applies only where the person accused of an offence is removable by the Government. The learned Single Judge has while referring to the requirement of the section observed as under:- "In order to resolve this controversy firstly a reference is made to Section 21 of the RPC where under head "fifteenth" every officer or servant and every member of an autonomous body which is established by an act of the Slate Legislature has also been included in the definition of public servant. University of Kashmir was established by the Kashmir and Jammu Universities Act, 1969 (Act No. XXIV of 1969) and the petitioner herein being a member/officer of the Kashmir University being the Head of Department is a public servant for the purposes of Section 197 Cr.P.C." 11) So it is clear that no reference has been made to requirement of Section 197 and this is an error apparent on the face of record because no finding has been returned as to who is the appointing authority of the accused. It is thus riot an erroneous decision, but an error apparent on the face of record. The Universities of Kashmir and Jammu have been established by the Kashmir and Jammu Universities Act, 1969. The employees of the Universities are appointed by the Universities in accordance with the statute and the regulations made in exercise of rule making power under the Act. These regulations are made by the Universities. The Government has no say in the matter of appointments. The employees of the Universities are neither appointed nor removable by the Government. If that be so, Section 197 Cr.P.C. will have no application. However, law on the point is clear that even where Govt. has power to make such appointments, but these were delegated to another authority. Section 197 Cr.P.C. will have no application. This was laid down in Kn.Shukla vs. Navnit Lal AIR 1967 SC 1331 holding as under:- "If once the Central Government has delegated its power to another authority with regard to appointment and removal of the public servant then for the purpose of Section 197, Criminal Procedure Code the public servant concerned will not be treated to be a public servant "not removable from his office except by or with the sanction of the Central Government" within the meaning of that Section. A similar argument was advanced in Afzalur Rahman vs. The King emperor, 1943, FCR 7; (AIR 1943 FC 18), in which it was held that a police Officer who could be dismissed by the Deputy Inspector General of Police under the statutory rules and regulations was not a person not removable from office except by or with the sanction of the Provincial Government within the meaning of Section 197 of the Criminal procedure Code and that sanction under that section was not therefore, necessary for prosecuting such an officer for an offence alleged to have been committed by him." The same view was reiterated in K.Ch.Prasad vs. Smt.J. Vanalatha Devi AIR 1987 SC 722 holding as under:- "6. It is very clear from this provision that this section is attracted only in cases where the public servant is such who is not removable from his office save by or with the sanction of the Government. It is not disputed that the appellant is not holding a post where he could not be removed from service except by or with the sanction of the Government. In this view of the matter even if it is held that appellant is a public servant still provisions of Section 197 are not attracted at all." In view of the above pronouncements, it is not necessary to multiply the judgments to emphasise the same point. Since Section 197 Cr.P.C. is attracted only in case of public servant who is removable from the office by the Government. This has escaped the notice of the learned Single Judge. It is, therefore, an error apparent on the face of record because there is no reference to this section in the judgment except in passing. Since the judgment of the High Court is law to be followed by the subordinate courts, therefore, the record is required to be corrected under Section 94 of the Constitution. Accordingly, this petition is allowed. The impugned judgment is set-aside and the trial court directed to proceed with the complaint in accordance with the law, Srinagar.