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Jharkhand High Court · body

2010 DIGILAW 243 (JHR)

Sushila Sinha v. Ramashish Choudhary

2010-02-16

D.K.SINHA

body2010
JUDGMENT (1) PETITIONER has invoked the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure against the order dated 3.4.2008 passed by this Court in Cr. Rev. No. 34 of 2005 by which this Court observed, "I find patent error in the order impugned as the learned Magistrate has almost decided the case and accordingly, set-aside the same with the direction to the court concerned/successor to pass an order afresh on the petition of the petitioner under Section 245 of Cr.P.C. in accordance with law and on the materials against the petitioners on record. This Cr. Revision is allowed with the aforesaid observation." (2) LEARNED Sr. Counsel Mr. Babban Lal submitted that said order was passed without making the petitioner-complainant as a party in the said criminal revision as she had preferred CP. Case No. 538 of 2000 which was pending before Shri S. L. Shaw, Judicial Magistrate, 1st Class, Dhanbad on the complaint petition filed on behalf of the petitioner and inquiry under Section 202 of the Code of Criminal Procedure was initiated. Having been satisfied with the materials, a prima facie case was found to be made out fpr the alleged offence under Sections 147/ 323/379/452 of the Indian Penal Code and accordingly, summons were issued to the opposite party Nos. 1 to 6 herein. Thereafter evidence was recorded before framing of charge and then the members of the opposite party filed a petition under Section 245 of the Code of Criminal Procedure for their discharge which was rejected with the observation, "Heard both sides and perused the case record. On perusal of the case record it appears that the evidences appealing on the records are as such which if unrebutted, would warrant the conviction of the accused in this case under Sections 147/323/379/452 Of the Indian Penal Code. Accordingly, the discharge petition filed on behalf of the petitioners accused under Section 245, Cr.P.C. is hereby rejected. Put up this record on 29-7-2004 for charge." According to the petitioner, charge was framed on 29-7-2004 under Sections 147/ 323/379/452 of the Indian Penal Code against he members of the opposite party, who pleaded not guilty and claimed to be tried. Thereafter one witness namely Chandradeo Pd. Sinha was examined, cross-examined and was discharged but in the meantime, members of the opposite party preferred Cr. Rev. Thereafter one witness namely Chandradeo Pd. Sinha was examined, cross-examined and was discharged but in the meantime, members of the opposite party preferred Cr. Rev. No. 34 of 2005 against the order impugned dated 12-7-2004 recorded in CP. Case No. 538 of 2000 without informing the Trial Court about the pendency of the criminal revision before the Jharkhand High Court. In the meantime, prosecution produced and examined almost all the witnesses in support of the complaint case who were cross-examined by the counsel for the members of the opposite party without whispering that Cr. Rev. No. 34 of 2005 was pending for disposal before this Court against the order dated 12-7-2004. After conclusion of the prosecution evidence, accused persons were examined and their statements were recorded under Section 313 of the Code of Criminal Procedure but even at that stage none of the accused/members of the opposite party deliberately concealed that Cr. Rev. No. 34 of 2005 was pending and for such reasons they did not answer the questions put to them individually by the Trial Magistrate. Case was fixed for defence evidence and also for final argument but in the meantime the order of this Court passed in Cr. Rev. No. 34 of 2005 on 3-4-2008 was communicated by which the order dated 12-7-2004 passed by the Judicial Magistrate, 1st Class in CP. Case No. 538 of 2000 was set aside with the observation, referred to hereinbefore. It was submitted that the said order of this Court dated 3/4/2008 was put up after three months on 28/7/2008 before the Trial Magistrate to his utter surprise as because the pendency of Cr. Rev. No. 34 of 2005 was never pointed out to the Trial Court at any stage of trial and even during recording of the statements of the accused/members of the opposite party under Section 313 of the Code of Criminal Procedure which used to be a milestone for pause in a criminal proceeding by giving opportunity to the accused to explain the defence. The learned counsel added that even no stay was granted by the Jharkhand High Court in CP. Case No. 538 of 2000 during pendency of Cr. Rev. No. 34 of 2005 and in that manner trial Court was completely put in dark. (3) LEARNED Sr. Counsel Mr. Babban Lal explained that the order was recorded ex parte by this Court in Cr. Rev. Case No. 538 of 2000 during pendency of Cr. Rev. No. 34 of 2005 and in that manner trial Court was completely put in dark. (3) LEARNED Sr. Counsel Mr. Babban Lal explained that the order was recorded ex parte by this Court in Cr. Rev. No. 34 of 2005 without hearing the complainant and therefore, such order was a nullity, which may be recalled for the ends of justice, in exercise of inherent power and in this connection, Mr. Lal relied upon the decision, reported in AIR 2000 Supreme Court 540 (M. M. Thomas v. State of Kerala and another) wherein the Apex Court observed, "14. 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 envelopes 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 Court's power in that regards is plenary. In Naresh Sridhar v. State of Maharashtra, (1966) 3 SCR 744 : AIR 1967 SC 1 , a nine Judge Bench of this Court has recognized the aforesaid superior status of the High Court as a Court of plenary jurisdiction being a Court of Record." It was further observed in the said decision, "17. If suo motu power of correcting its own record is denied to the High Court, when it notices the apparent errors its consequence 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 record." (4) MR. Lal, the learned Sr. Counsel further submitted that the impugned order dated 3/4/2008 was recorded by this Court in absence of the complainant as no notice was given to her. Lal, the learned Sr. Counsel further submitted that the impugned order dated 3/4/2008 was recorded by this Court in absence of the complainant as no notice was given to her. The complainant being a necessary party was not given opportunity of audience and in that manner, principle of audi alteram partem was grossly violated at the instance of the members of the opposite party, as such, the order dated 3-4-2008 was unsustainable which may be recalled in exercise of inherent jurisdiction of this Court. In Raghu Raj Singh Rousha v. M/s. Shivam Sundaram Promoters (P) Ltd. and another, reported in 2009 (1) JLJR 290 (SC) : (AIR 2008 SC (Supp) 706), the Supreme Court of India observed that the order of the High Court is ex facie unsustainable in law by not giving an opportunity to the appellant to defend his case and the Court held that the learned Judge violated all principles of natural justice as also the requirement of law of hearing a party before passing an adverse order. Thereafter, in view of the above proposition of law, Mr. Babban Lal, the learned Sr. Counsel submitted that the order impugned was fit to be recalled for the ends of justice in view of the fact as well that all the witnesses were already examined/cross-examined without protest and the statements of the accused have also been recorded under Section 313 of the Code of Criminal Procedure, and that at no point of time any of the accused/members of the opposite party apprised the trial Court about the pendency of any criminal revision before this Court. By such conduct, the accused/opposite parties have put the Trial Court in embarrassing position by bringing the order of this Court at the fag end of trial when the judgment was to be pronounced. (5) ON the other hand, Mr. Kaushik Sarkhel, learned counsel appearing on behalf of the opposite party Nos. By such conduct, the accused/opposite parties have put the Trial Court in embarrassing position by bringing the order of this Court at the fag end of trial when the judgment was to be pronounced. (5) ON the other hand, Mr. Kaushik Sarkhel, learned counsel appearing on behalf of the opposite party Nos. 1 to 6 by filing counter- affidavit submitted that the petition of the petitioner was not maintainable as Section 362 of the Code of Criminal Procedure mandates that no Court, when it has signed its judgment or final order or has disposed of a case shall alter or review the same except to correct a clerical or arithmetical error based upon the acknowledged principle of law that once a matter is finally disposed of, the said Court in absence of any specific statutory provision becomes functus officio and was disentitled to entertain a fresh prayer for the same relief unless the earlier order was set aside by a Court of competent jurisdiction in the manner prescribed by law. (6) ADVANCING his argument, Mr. Sarkhel submitted that it was totally false and misleading that the members of the opposite party had never informed the Trial Magistrate about the pendency of Cr. Rev. No. 34 of 2005 as the accused persons used to file petitions under Section 317 of the Code of Criminal Procedure stating that Cr. Rev. No. 34 of 2005 was running in the weekly cause list of this Court and that was likely to be taken up in due course. In support thereof, xerox copy of the certified copy of the petition dated 9.2.2005 filed under Section 317 of the Code of Criminal Procedure has been brought on the record supported by an affidavit. On the point of law, Mr. Sarkhel submitted that the order dated 3-4-2008 passed by this Court in Cr. Rev. No. 34 of 2005 was an order under Section 397 of the Code of Criminal Procedure drawn in exercise of jurisdiction which empowers the Court to see the illegality, propriety and correctness of the order and if the Court finds any error it was within the competence of the High Court to remand the matter back to the trial Court by setting aside the impugned order in exercise of power under Section 398 of the Code of Criminal Procedure. Finally, it has been submitted that State was figured as the opposite party before this Court passed the final order, therefore, the said order cannot be deemed to be an order recorded ex parte. (7) HAVING regard to the facts and circumstances, I find that the complainant was not impleaded as opposite party in Cr. Rev. No. 34 of 2005 by the members of the opposite party herein though the State was figured as opposite party. I further find that on the date of passing the order dated 3-4-2008, the State was represented by none and only after hearing the counsel for the petitioner order was passed on 3-4-2008 by setting aside the order dated 12-7-2004 in CP. Case No. 538 of 2000 after about four years. But I find that within such a long span of time the trial Court was not informed about the pendency of the said criminal revision against the order passed on 12-7-2004 in CP. Case No. 538 of 2000 except at one occasion long back on 9- 2-2005 but thereafter, for long three years, the members of the opposite party herein kept mum though they actively participated in their criminal trial wherein the witnesses were produced and examined on behalf of the prosecution and were cross-examined on behalf of them. Even at the stage of recording their statements under Section 313 of the Code of Criminal Procedure none of the accused/members of the opposite party herein pointed out pendency of their criminal revision before this Court and they did not answer the question put to them while confronting with the incriminating materials as collected against them during trial. I have reason to believe therefore, that the members of the opposite party intentionally suppressed the entire material facts before the Trial Court about the pendency of the criminal revision and at the same time status and progress in their criminal trial during pendency of criminal revision before this Court. I further find that at no point of time any prayer was made for stay of criminal proceeding pending before the Trial Magistrate till disposal of the criminal revision. I further find that at no point of time any prayer was made for stay of criminal proceeding pending before the Trial Magistrate till disposal of the criminal revision. The Supreme Court of India has propounded in the decision, reported in AIR 2000 Supreme Court 540 that this Court has inherent powers as envisaged in Article 215 of the Constitution of India besides under Section 482 of the Code of Criminal Procedure as a Court of Record to correct any apparent error if noticed. Following such proposition of law, this Court in exercise of jurisdiction under Article 215 of the Constitution of India read with Section 482 of the Code of Criminal Procedure finds imperative to interfere with the order dated 3- 4-2008 recorded in Cr. Rev. No. 34 of 2005 by which the order impugned dated 12-7- 2004 passed in CP. Case No. 538 of 2000 was set aside and the matter was remanded back, calling upon the Trial Magistrate to pass an order afresh on the petition filed on behalf of the members of the opposite party under Section 245 of the Code of Criminal Procedure. In the facts and circumstances the order dated 3-4-2008 passed in Cr. Rev. No. 34 of 2005 by this Court is recalled to avoid the miscarriage of the process of the Court. (8) ACCORDINGLY, this criminal miscellaneous petition is allowed. The trial Magistrate is directed to proceed in CP. Case No. 538 of 2000 in accordance with law and conclude the trial without prejudice to the merit of the case within a reasonable period. Petition allowed.