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2002 DIGILAW 116 (PAT)

Yogendra Prasad v. State Of Bihar

2002-01-25

INDU PRABHA SINGH

body2002
Judgment 1. This application filed under Section 482 of the Code of Criminal Procedure (in short, the Code) has come up for admission. In this petition a prayer has been made for recalling my order dated 29.7.1999 disposing of Cr. Revision No. 659 of 1995. The said order was passed under the following circumstances. 2. From the record it appears that a proceeding under Section 145 of the Code was started before the Executive Magistrate, Hajipur, Vaishali (Case No. M-790/77). In the said case the evidence to be adduced on behalf of the present petitioners was closed by the learned Executive Magistrate by his order dated 1.9.1993. Against this order the present petitioners filed Cr. Revision No. 288 of 1993 before the Sessions Judge, Vaishali. The said Criminal Revision came up for admission before the learned Sessions Judge, Vaishali at Hajipur. It was disposed of by an order dated 19.5.1994 by which the order dated 1.9.1993 passed by the learned Executive Magistrate was set aside and the learned Magistrate was directed to give the petitioners an opportunity to produce the witness for his cross-examination and also to produce other witnesses for their evidence on payment of a cost of Rs. 50/-. In accordance with this order passed by the learned Sessions Judge, the Executive Magistrate by his order dated 21.10.1995 directed the present petitioners to produce their witnesses before him. It may be mentioned here that the present petitioners were also the petitioners in Cr. Revision No. 288/ 93 before the learned Sessions Judge. Against the order passed on 21.10.1995 by the Executive Magistrate to produce the witness the present opposite party Nos. 2 to 4 filed Cr. Revision No. 659 of 1995 before this Court. It was heard and disposed of by my order dated 29.7.1999. I quashed the order dated 21.10.1995 passed by the learned Executive Magistrate to produce witnesses and allowed the Criminal Revision application. It is for the recalling of the aforesaid order that the present Criminal Miscellaneous case has been filed. 3. It has been submitted that from the facts aforesaid the learned Executive Magistrate had recalled his previous order dated 1.9.1995 closing the case of the present petitioners. It is for the recalling of the aforesaid order that the present Criminal Miscellaneous case has been filed. 3. It has been submitted that from the facts aforesaid the learned Executive Magistrate had recalled his previous order dated 1.9.1995 closing the case of the present petitioners. As noticed above this order was set aside by the learned Sessions Judge in Criminal Revision No. 288 of 1993 by which he directed the learned Executive Magistrate to allow the petitioner on opportunity to produce the witness for his cross-Oexamination as also to adduce further evidence on payment of Rs. 50/- as cost. There is nothing on the record to show that this cost was deposited. In any view of the matter it appears that in pursuance of this order passed by the learned Sessions Judge, the learned Executive Magistrate passed an order on 21.10.1995 by which he allowed the present petitioners to adduce further evidence. However, by the order passed by me in Cr. Revision No. 659 of 1995, I had quashed the order of the learned Magistrate dated 21.10.1995 by which he had allowed the present petitioners to adduce further evidence. It is for the recall of my order dated 29.7.1999 passed in Cr. Revision No. 659 of 1995 that the present petition has been filed. 4. It has been submitted that by order dated 21.10.1995 the learned Executive Magistrate suo motu did not recall his earlier order dated 1.9.1993. As a matter of fact he passed the order dated 21.10.1995 in pursuance of the direction given by the learned Sessions Judge in Cr. Revision No. 288 of 1993. From this it would appear that he did not recall his earlier order dated 1.9.1993 suo motu. In this connection my attention has been drawn to the fact that a Subordinate Criminal Court has got no inherent power to recall any order passed by it. This point of law is well settled and needs no discussion. However, since from the facts of the present case it appears that the order was not recalled suo motu, this principle of law will not apply to the facts of present case. As a matter of fact the order dated 21.10.1995 was passed under the directions of the Revisional Court and not suo motu. From my order dated 29.7.1999 passed in Cr. As a matter of fact the order dated 21.10.1995 was passed under the directions of the Revisional Court and not suo motu. From my order dated 29.7.1999 passed in Cr. Revision No. 659 of 1995 it appears that my attention was not drawn to the aforesaid order dated 19.5.1994 passed by the learned Sessions Judge in Cr. Revision No. 288 of 1993. Accordingly holding that the subordinate Criminal Court had power to recall its previous order. I quashed the order dated 21.10.1995 passed by the learned Executive Magistrate since I was under the impression that the learned Executive Magistrate suo motu had recalled his earlier order dated 1.9.1993 without the intervention of the learned Sessions Judge for the simple reason that the order passed by the learned Sessions Judge or the fact that Criminal Revision No. 288 of 1993 was filed before the Sessions Court against the order of the learned Executive Magistrate passed on 1.9.1993 was not mentioned by any party and my attention was not drawn to any such thing. No document with respect to Criminal Revision No. 288/93 was brought on the record nor the copy of the order dated 19.5.1994 passed by the learned Sessions Judge was filed before me in Criminal Revision No. 659 of 1995. 5. Now in the present petition it has been contended that under the aforesaid facts and circumstances, I should recall my order dated 29.7.1999 passed in Cr. Revision No. 659 of 1995 by which allowing this criminal revision. I had quashed the order dated 21.10.1995 passed by the learned Executive Magistrate. 6. In this connection it has been contended that my aforesaid order was obtained by suppressing certain important facts, namely, the order passed in Criminal Revision No. 288 of 1993 by the learned Sessions Judge. It has further been contended that if this order would have been brought on the record, I would not have passed my order dated 29.7.1999 in the aforesaid criminal revision by which I had quashed the order of the learned Executive Magistrate dated 21.10.1995. It has been strongly urged that under the changed circumstances the aforesaid order passed in Criminal Revision No. 659 of 1995 should be recalled since it was obtained by suppressing the material fact, namely, the order passed by the learned Sessions Judge in Cr. Revision No. 288 of 1993 on 19.5.1994. 7. It has been strongly urged that under the changed circumstances the aforesaid order passed in Criminal Revision No. 659 of 1995 should be recalled since it was obtained by suppressing the material fact, namely, the order passed by the learned Sessions Judge in Cr. Revision No. 288 of 1993 on 19.5.1994. 7. The petitioners have been heard at length at the stage of admission itself. From the record of the case before the learned Executive Magistrate it appears that the petitioners were the opposite party before him. The petitioners had filed Criminal Revision No. 288/93 before the learned Sessions Judge and obtained the order on 19.5.1994 setting aside the order dated 1.9.1993 passed by the learned Executive Magistrate closing the case of the petitioners. So far as the Criminal Revision No. 659 of 1995 is concerned it appears that the petitioners figured in it as opposite party Nos. 2 and 3. From paragraph No. 2 of this order it would appear that the services of notices on the opposite party in this criminal revision were validly served but they had not appeared in the Court before me. In paragraph 5 of the present petition it has been admitted that the present petitioners were present in Court before the learned Sessions Judge at the time of hearing of Criminal Revision No. 288 of 1993. The present petitioners were also present before the learned Executive Magistrate on 21.10.1995 when the order was passed directing the second party to bring witness on the next date. From the aforesaid it would appear that the present petitioners had sufficient notice about Criminal Revision No. 659 of 1995 but for the reasons best known to them they chose not to appear before me and to draw my attention to the fact that the order dated 21.10.1995 was passed in pursuance of the order of the learned Sessions Judge passed in Cr. Revision No. 288 of 1993. It appears that under the aforesaid circumstances, I had quashed the order dated 21.10.1995 passed by the learned Executive Magistrate. 8. Now in this petition a prayer has been made to recall the aforesaid order. The important question that arises for consideration under the aforesaid circumstances is can this Court recall or review its own order by which it finally disposed of the aforesaid criminal revision petition? 8. Now in this petition a prayer has been made to recall the aforesaid order. The important question that arises for consideration under the aforesaid circumstances is can this Court recall or review its own order by which it finally disposed of the aforesaid criminal revision petition? On behalf of the petitioner it has been submitted that this Court is competent and sufficiently empowered to review its own order in exercise of the inherent powers vested in it under Section 482 of the Code. However, this contention cannot be accepted for the simple reason that it is well settled as held in the case of Smt. Sooraj Devi V/s. Pyare Lal and another, AIR 1981 SC 736 , that the High Court in exercise of its inherent powers has no right to set aside its own judgment on the ground that it is erroneous in law or fact. The same view has been taken in the case of Mosst. Simrikhia V/s. Smt. Dolley Mukherjee alias Smt. Chabbi Muk-herjee and another, AIR 1990 SC 1605 , that the inherent power cannot be invoked to override bar of review under Section 362, which expressly provides 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 save as otherwise provided by the Code. It is well settled that if a matter is covered expressly by letter of law the Court cannot give a go-bye to the statutory provisions and instead evolve in a new provision in the garb of inherent jurisdiction. 9. In a recent decision dated 18.10.2001 passed inCr. Misc. No. 12591 of 2000, I had occasioned to examine this question of law in detail. It has been held that Section 362 bars the inherent powers of the High Court also to change a judgment once delivered by the High Court except for the correction of a clerical or arithmetical error or an error occasioned by an accidental slip or omission of the Court. An arithmetical error is a mistake of calculation and a clerical error is a mistake in writing or typing. An arithmetical error is a mistake of calculation and a clerical error is a mistake in writing or typing. In this decision also a reference has been made to a recent decision in the case of Hari Singh Mann V/s. Harbhajan Singh Bajwa and others, AIR 2001 SC 43 , in which it has clearly been held that there is no provision in the Code authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. It was also held that Section 363 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. In the present petition a prayer has been made to recall my judgment disposing of the aforesaid criminal revision. Recalling an order will mean the review of the judgment passed by me or to alter the same. As is well settled in exercise of powers under Section 482 of the Code, I cannot review or alter any judgment passed by me earlier and the law appears to be well settled on this point. 10. From the facts of the present case it appears that this litigation is pending since 1977 and already 25 years have passed since its institution in the Court of the Executive Magistrate. Already much time has lapsed and I think no useful purpose will be served by delaying its disposal any further specially when as held above this revision application is not fit for admission in the eye of law. 11. For the reasons stated above the revision application is rejected at the stage of admission itself.