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2006 DIGILAW 452 (UTT)

Rustam - Revisionist v. Manfaid

2006-08-18

J.C.S.RAWAT

body2006
Judgment 1. The present criminal (revision) has been directed against the judgment and order dated 15-03-1997 passed by Sri V.P. Singh, the then Additional District and Sessions Judge, Roorkee, District Haridwar in Criminal Revision No. 28 of 1996 setting aside the order dated 08-01-1996 passed by the S.D.M., Roorkee, District Haridwar u/s 133 of the Cr.P.C., State Vs. Rashid and others. 2. Brief facts for the disposal of this revision are that the learned S.D.M. at the behest of the opposite party initiated the proceedings u/s 133 of the Cr.P.C. and a show cause notice as provided under section (133, Cr.P.C.) was issued to the revisionist and in response to the said notice, the revisionist appeared and denied the existence of any public right in respect of the land in dispute and filed an objection and show-cause against the order of the learned S.D.M. Thereafter, the learned Magistrate proceeded against the revisionist and he made the order absolute u/s 136 on 04-01-1996 and directed to remove the alleged construction over the pathway. 3. The revisionist on the same day, Le. on 04-01-1996 filed an application inviting the attention of the learned Magistrate that the order was passed in utter disregard of the provisions of the Code of Criminal Procedure and he further alleged that the revisionist had not been afforded any opportunity of being heard and the learned Magistrate had passed the order without hearing and without considering the case of the revisionist. 4. The learned Magistrate after hearing the parties, restored the case and afforded the opportunity of being heard to the revisionist and the case was fixed on 09-01-1996. The learned Magistrate proceeded with the case and finally decided the said case on 15-02-1996. It is also revealed from the record that the learned Magistrate visited the spot on 15-02-1996 and he found that there was no obstruction on the road. Immediately, thereafter he dropped the proceedings u/s 133 Cr.P.C. Meanwhile, the respondent feeling aggrieved by the said order of the restoration of the proceedings preferred a revision petition before the learned Sessions Judge. The learned Sessions Judge while hearing the revision set aside the order of the learned Magistrate by which he made the order u/s 133 Cr.P.C. was set aside and restored the proceedings again on the ground that the revisionist had not been given opportunity to be heard during the proceedings. The learned Sessions Judge while hearing the revision set aside the order of the learned Magistrate by which he made the order u/s 133 Cr.P.C. was set aside and restored the proceedings again on the ground that the revisionist had not been given opportunity to be heard during the proceedings. The learned Sessions Judge also held that the learned Magistrate had no power under the Code of Criminal Procedure to recall the order or to set aside his• earlier order. The learned Sessions Judge further held that the learned Magistrate had only the power to correct the clerical mistakes committed in the judgment. 5. I have heard learned counsel for the revisionist. None is appearing for the respondents except learned A.G.A. 6. The only point in this revision is that whether the Magistrate who had made the order absolute u/s 133 Cr.P.C. and directed the revisionist to remove the obstruction from the pathway can be set aside and restored for the hearing again under the Cr.P.C. It is also to be decided that once the proceedings had been terminated in favour of the respondent whether that proceedings can be set aside by subsequent order. Section 362 of the Cr.P.C. provides as under: "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. Perusal of the above provision clearly reveals that once a judgment and order is delivered or order is signed, it cannot be altered except clerical errors. The learned Sessions Judge was justified in holding that the learned Magistrate erred in setting aside the order dated 04-01-1996. The revisionist had only the remedy to file the revision or to take any appropriate steps under Cr.P.C. against the order passed by the learned Magistrate u/s 136 Cr.P.C. I do not find any illegality in the judgment and order passed by the learned Sessions Judge. 8. In view of the reasons as discussed above, the revision devoids of merit is liable to be dismissed and is accordingly dismissed. 9. All applications pending in this case are stand disposed of in terms of the judgment. * * *