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2005 DIGILAW 489 (AP)

V. Santhosh Kumar v. Anasuya @ Latha

2005-06-10

V.V.S.RAO

body2005
( 1 ) THIS Court by order dated 17-3-2005 dismissed the Transfer Criminal petition No. 54 of 2005 on merits. The present miscellaneous petition is filed to set aside the said order. ( 2 ) THERE are cases and counter cases between the petitioner and the first respondent, who is none other than the wife of the petitioner. Against the petitioner, the first respondent herein filed O. P. No. 373 of 2002 under Section 9 of the hindu Marriage Act, 1955 for restitution of conjugal rights. The petitioner herein filed o. P. No. 475 of 2003 against first respondent for divorce. Both the cases were filed before the Family Court, Visakhapatnam. Be it also noted that the first respondent had earlier filed Maintenance Case under section 125 of Code of Criminal Procedure, 1973 (Cr. P. C) being M. C. No. 222 of 2002 on the file of the Family Court, visakhapatnam. The petitioner herein filed Tr. Crl. P No. 54 of 2005 before this court on 9-3-2005 praying to transfer all the three cases to Family Court, secunderabad. He alleged in his affidavit accompanying the said transfer petition, that he, his mother and sisters are in a state of shock by reason of the conduct of the first respondent that he had no means to travel to Visakhapatnam and that he has to take care of his mother and sisters. ( 3 ) THE transfer criminal miscellaneous petition was originally listed before me on 14-3-2005. The petitioner appearing through party-in-person was absent. His name was called by the Court Attender (orderly) loudly in the corridor of the Court, in vain. Therefore, this Court passed the following order on 14-3-2005. Mr. V. Santosh Kumar, party-in-person is absent. The learned Counsel for respondent No. 1, Sri Jayanthi S. C. Shaker, submits that the petitioner is repeatedly filing the applications before this Court as well as other Courts in A. P. and absenting himself therefore, office is directed to issue urgent notice to the petitioner and send the same through the Court of Metropolitan sessions Judge, Hyderabad, returnable by 17-3-2005 making it clear that if the petitioner does not appear either in person or by a duly instructed Counsel, the Court would initiate appropriate proceedings for contempt of Court. ( 4 ) THE above order was necessitated in view of the submission made by the learned Counsel for the first respondent that the party-in-person resorted to abuse of process of Court by filing repeatedly petitions one after the other though all the three cases were disposed of by Family court, Visakhapatnam. The matter was again listed on 17-3-2005. The party-in-person was absent. However, this Court did not initiate proceedings for contempt as mentioned in the proceedings dated 14-3-2005. After hearing the learned Counsel for the first respondent, this Court passed the following order. In this petition filed by one V. Santosh kumar, as party-in-person under Section 407 of the Code of Criminal Procedure, 1973 (Cr. P. C), the following prayer is made. The reasons stated in the accompanying affidavit, the petitioner herein prays that this hon ble Court may be pleased to transfer the cases i. e. , O. P. No. 373/02, O. P. No. 475/ 03, and Crl. M. C. No. 222/02 which is pending at Visakhapatnam Family Court to Family court, Secunderabad, and pass such order or orders as this Hon ble Court may deem fit and proper in the circumstances of the case. It is rather perplexing as to how in exercise of power under Section 407 of Cr. P. C. , this court can transfer O. P. No. 373 of 2002 filed by the first respondent under Section 9 of the Hindu Marriage Act, 1955 and O. P. No. 475 of 2003 filed by the petitioner for divorce, under Section 13 (1) (ia) and (ib) of the Hindu Marriage Act, to the Family Court, secunderabad. The remedy for the petitioner lies in moving an appropriate application under the Family Courts Act, 1984. Insofar as the prayer regarding transfer of M. C. No. 222 of 2002 filed by the first respondent under Section 125 of Cr. P. C. , to the Family court, Secunderabad is concerned, learned counsel for the respondents brought to the notice of this Court that by order dated 23- 12-2002, the Family Court, Visakhapatnam, has already passed orders directing the petitioner to pay a sum of Rs. 5,000/- per month to the first respondent. Indeed, it is also brought to the notice of this Court that o. P. No. 473 of 2003 filed by the petitioner has already been dismissed for default on 19-3-2004. 5,000/- per month to the first respondent. Indeed, it is also brought to the notice of this Court that o. P. No. 473 of 2003 filed by the petitioner has already been dismissed for default on 19-3-2004. The transfer criminal petition is misconceived and hence dismissed. ( 5 ) IN this petition filed under Section 482 of Cr. P. C. , the petitioner seeks to set aside the order dated 17-3-2005. In spite of the suggestion being made that the petitioner who admittedly is in agitated mental condition did not agree for appointment of a legal aid Counsel. Therefore, this Court heard the matter on 19-4-2005, 26-4-2005 and 28-4-2005. The petitioner made elaborate submissions mostly autobiographical in nature now and then touching upon certain legal provisions which have no relevance nor presented in a dispassionate manner. Be that as it is, opposing the petition, the learned Counsel for the first respondent raised the question of jurisdiction of this Court to pass an order setting aside its earlier order dated 17-3-2005. He placed reliance on judgment of Full Bench of the Punjab and Haryana High Court in ajit Singh v. State of Punjab, 1982 Crl. LJ 1215 (Pandh), and a decision of the Supreme court in Hari Singh Mann v. Harbhajan singh Bajwa, 2001 (1) ALD (Crl.) 33 (SC) = (2001) 1 SCC 169 = 2001 Crl. LJ 128. ( 6 ) AS seen from the order passed by this Court on 17-3-2005, this Court rejected transfer petition on merits. This Court noticed the fact that the Family Court, visakhapatnam, already disposed of M. C. No. 222 of 2002 directing the petitioner herein to pay a sum of Rs. 5,000/- to the first respondent. This Court also further observed that in exercise of powers under section 407 of Cr. P. C. , original petitions filed under the provisions of Hindu Marriage act cannot be transferred to the Family court, Secunderabad. By no stretch of imagination, the said order can be said to be not on merits or can be treated as an order of dismissal for default. In this background, the question that falls for consideration is whether the present petition is maintainable? section 362 of Cr. P. C. , is relevant and reads as under : 362. Court not to alter judgment. In this background, the question that falls for consideration is whether the present petition is maintainable? section 362 of Cr. P. C. , is relevant and reads as under : 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. ( 7 ) A plain reading of the above provision would show that when once a judgment or final order is signed by presiding Judge of the Court disposing of the matter, the said order cannot be reviewed or altered. The prohibition, however, does not preclude the Judge to correct a clerical or arithmetical error. Section 362 of Cr. P. C, fell for interpretation before the Full Bench of Punjab and haryana Act in Ajit Singh v. State of Punjab (supra ). The Full Bench, after reviewing the case law on the point whether the high Court can fall back on inherent powers saved by Section 482 of Cr. P. C. , to review the order, held that, "the High court has no power to review or revise its earlier judgment and that the High Court cannot invoke its inherent jurisdiction under section 482 of Cr. P. C. , for the purpose of reviewing its earlier order. " ( 8 ) IN Hari Singh Mann v. Harbhajan singh Bajwa (supra), the Supreme Court while holding that High Court has no jurisdiction to alter or review its own judgment or order, observed 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 an arithmetical error. The section is based on an acknowledged principle of law that once a mater is finally disposed of by a court, the said Court in the absence of a specific statutory provision becomes fitnctus offlcio 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 offlcio the moment the official order disposing of a case is signed. The Court becomes functus offlcio 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 an arithmetical error. The reliance of the respondent on Talab haji Hussain v. Madhukar Purshottam mondkar, AIR 1958 SC 376 = 1958 Crl. LJ 701, is misconceived. Even in that case it was pointed that inherent powers conferred on High Court under Section 561 -A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7- 1-1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st report of the law Commission and the Joint Select committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment. ( 9 ) IN view of the binding precedents, this Court holds that this petition is not maintainable and the same is accordingly dismissed.