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Madhya Pradesh High Court · body

2003 DIGILAW 1310 (MP)

Parmeshwardin Patel v. Snehlata

2003-12-03

K.K.LAHOTI

body2003
ORDER 1. The applicant has filed this application under section 482, CrPC for rehearing of the revision petition on the ground that on 18.11.2002, the case was listed before another Bench, but on the same day it was transferred to another Bench for hearing, this fact could not come to the notice of the applicant's counsel so the counsel could not appear before another Bench where the matter was relisted for hearing. The case was heard in the absence of the counsel for the applicant and the revision was dismissed. 2. The learned counsel for the applicant, himself was counsel in the aforesaid case. This fact is supported by an affidavit of Shri J.L. Soni, counsel, who has supported the contents of the application in which it is specifically mentioned that the fact of transfer of the case from one Bench to another Bench could not come to the notice of the counsel. 3. On notice of this application respondent appeared and contended that the rehearing of the case will amount to review of the previous order which is not permissible under the law. The order passed by this Court cannot be reviewed under section 482 CrPC. Both the counsel have relied on Apex Court judgment in Hari Singh Man v. Harbhajan Singh Bajwa and others [ AIR 2001 SC 43 ]. Apart from this, the learned counsel for the applicant has also relied on the Apex Court judgment in B.S. Joshi and others v. State of Haryana and another [ (2003) 4 SCC 675 ], Division Bench judgment of this Court in Narayan Singh and others v. State of M.P. [ 1989 MPLJ 298 ], Single Bench judgments of this Court in Gulam Ahmed v. Haji Maulana Mohammad Zahoor [ 1997(2) JLJ 185 ] and in Yesu and another v. State of M.P. [ 2001(3) MPLJ 302 ] and contended that in the interest of justice the matter may be heard bi-party by recalling the order dated 18.11.2002. The Apex Court in Hari Singh Man (supra), while considering the power of review, held : "8. We have noted with disgust that the impugned orders were passed completely ignoring the basic principles of criminal law. No review of an order is contemplated under the Code of Criminal Procedure. The Apex Court in Hari Singh Man (supra), while considering the power of review, held : "8. We have noted with disgust that the impugned orders were passed completely ignoring the basic principles of criminal law. No review of an order is contemplated under the Code of Criminal Procedure. After the disposal of the main petition on 7.1.1999, there was no lis pending in the High Court wherein the respondent could have filed any miscellaneous petition. The filing of a miscellaneous petition not referable to any provision of Code of Criminal Procedure or the rules of the Court, cannot be restored to as a substitute of fresh litigation. The record of the proceedings produced before us shows that directions in the case filed by the respondents were issued apparently without notice to any of-the respondents in the petition. Merely because the respondent No. 1 was an Advocate, did not justify the issuance of directions at his request, without notice of the other side. The impugned orders dated 30th April 1999 and 21stJuly 1999 could not have been passed by the High Court under its inherent power under section 482 of the Code of Criminal Procedure. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and, in substance, the abuse of the process of the Court. "9. There is no provision in the Code of/Criminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of section 482 of the Code. This Court, in State of Orissa v. Ram Chander Agarwala [AIR 1979 SC .87 = 1979 CrLJ 462 ] held [para 20 of AIR CrLJ]. "Before concluding, we will very briefly refer to cases of this Court cited by counsel on both sides Talab Haji Hussain [ 1958 SCR 1226 = AIR 1958 SC 376 = 1958 CrLJ 701 ] relates to the power of the High Court to cancel bail. The High Court took the view that under S. 561A of the Code, it had inherent power to cancel the bail, and. The High Court took the view that under S. 561A of the Code, it had inherent power to cancel the bail, and. finding that on the material produced before the Court it would not be safe to permit the appellant to be at large, cancelled the bail, distinguishing the decision in Lala Jairam Das v. King-Emperor [(1944-45) 72 IA] [72 120 = AIR 1945 PC 94 = 1945 (46) CrLJ 662] (supra) and stated that the Privy Council was not called upon to consider the question about the inherent power of the High Court to cancel bail under S. 561A. In Sankatha Singh v. State of U.P. [(1962) Supp. (2) SCR 817 = AIR 1962 SC 1208 = (1962) CrLJ 288], this Court held that S. 369 read with S. 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a Court. The accused applied before a succeeding Sessions Judge for rehearing of an appeal. The learned Judge was of the view that the appellate Court had no power to review or restore an appeal which has been disposed of. The Supreme Court agreed with the view that the appellate Court had no power to review or restore an appeal. This Court, expressing its opinion that the Sessions Court had no power to review or restore an appeal, observed that a judgment which does not comply with the requirements of section 367 of the Code, may be liable to be set aside by a superior Court but will not give the appellate Court any power to set it aside itself and rehear the appeal observing that 'section 369 read with section 424 of the Code makes it clear that the appellate Court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error.' Reliance was placed on a decision of this Court in Supdt. and Remembrancer of Legal Affairs, W.B. v. Mohan Singh [ AIR 1975 SC 1002 = 1975 CriLJ 812] by Mr. Patel, learned counsel for the respondent, wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. and Remembrancer of Legal Affairs, W.B. v. Mohan Singh [ AIR 1975 SC 1002 = 1975 CriLJ 812] by Mr. Patel, learned counsel for the respondent, wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision, instead of supporting the respondent, clearly lays down, following Chopra's case [ AIR 1955 SC 633 = ( 1955 CrLJ 1410 ] (supra) that once a judgment has been pronounced by a High Court either in exercise of its appellate or revsional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of section 561A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code ?" 4. In B.S. Joshi (supra), the Apex Court considered the power under section 482 CrPC, for quashment of the first information report and for compounding the offense which is not applicable to the present fact of the case. The Division Bench in the case of Narayan Singh and others (supra) was considering the question of hearing of the accused on the question of sentence after passing the judgment. The facts of the aforesaid case is also not applicable in the present case. In Gulam Ahmed v. Haji Maulana Mohammad Zahoor (supra) the learned Single Judge of this Court while considering the power of recalling of the order held in paras 3, 4 and 5 : "3. Shri Tiwari, learned counsel for the applicant has contended that section 362 of the Code of Criminal Procedure prohibits the Court from altering Of reviewing the final order passed, except correction of clerical errors. Therefore, the order dated 10.5.1995 passed in Misc. Criminal Case No. 3680/95 is bad in law. Shri Tiwari, learned counsel for the applicant has contended that section 362 of the Code of Criminal Procedure prohibits the Court from altering Of reviewing the final order passed, except correction of clerical errors. Therefore, the order dated 10.5.1995 passed in Misc. Criminal Case No. 3680/95 is bad in law. Shri Tiwari also placed reliance on a decision of the Apex Court in State of Orissa v. Ramchander ( AIR 1979 SC 87 ) wherein the Apex Court has held that once judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code which would enable the High Court to review the same or to exercise revisional jurisdiction. "4. However, in the facts and circumstances of the instant case, the above decision has no application. There is a distinction between review and recalling of the order. By order dated 10.5.1995, this Court recalled the order dated 8.8.1994 passed in Criminal Revision No. 595/90 and did not review the same. It is well settled that where a petition under section 482 of the Code has been filed for recalling of the order of the Court on the ground that the opposite party has not been heard, the petition is maintainable. Section 362 does not impose any prohibition for recalling the order. In this connection reference may be made to the case of Giridharilal and others v. Pratap Rai Mehta and another [ 1989 CrLJ 2382 ]. A Full Bench of the Rajasthan High Court in Habu v. State of Rajasthan [ AIR 1987 Raj. 83 ] has also observed that the power to alter or review the judgment and the powers under section 482 can and should be exercised by the High Court for recalling the judgment in case hearing is not given to the accused and the case falls within one of the three conditions laid Gown under section 482 of the Code. "5. In the instant case, it is obvious that the order dated 8.8.1994 passed in Criminal Revision No. 595 of 1990 that it was heard in the absence of the respondent or his counsel, as they failed to appear despite service of notice." 5. "5. In the instant case, it is obvious that the order dated 8.8.1994 passed in Criminal Revision No. 595 of 1990 that it was heard in the absence of the respondent or his counsel, as they failed to appear despite service of notice." 5. Considering the aforesaid in Hari Singh Mann (supra), the Apex Court considered the question of filing a miscellaneous petition after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the Court. But in the aforesaid case the question of re-hearing of the case was not before the Apex Court. In the present state of the fact the ratio of Gulam Ahmed (supra) decided by the Single Bench is fully applicable. 6. In the present case, the applicant was represented by his counsel in the revision. The counsel appearing for the applicant was under the impression that his case is listed before a particular Bench, but all of a sudden during the course of the day some bf the cases were transferred to another Bench which could not come in his notice and the matter was heard in his absence. The aforesaid contention is supported by the affidavit of the counsel for the applicant and apparently there is no reason to disbelieve the aforesaid affidavit. The applicant, who was represented by a counsel, was unaware of the fact that his case has been transferred to another Bench and will be heard by another Court. This has -caused serious prejudice to the applicant. The applicant has been deprived to place his case before the' Court, and the case was deci4ed without hearing him. The revision was filed against an order of maintenance under section 125 CrPC, which is quasi civil matter, and cannot be dealt with, with the strict principles of criminal law, and a reasonable view may be adopted. In the circumstances, the prayer of the applicant deserves to be allowed. 7. Accordingly, the order dated 18.11.2002 which has been passed in the absence of the applicant is hereby recalled. Now the revision petition be placed before appropriate Bench for hearing. This application is finally disposed of. ...............................