Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 913 (HP)

RAM KRISHAN v. RAMESH KUMAR

2013-10-25

KULDIP SINGH

body2013
JUDGEMENT 1. KULDIP Singh This judgment shall dispose of Cr.MP No.179 of 2013 in Cr.MMO No.8 of 2012 and Cr.MMO No.68 of 2012 as common and overlapping questions of law are involved in both the matters. Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2. THE relevant facts, in brief, are that respondent/complainant Ramesh Kumar filed a complaint under Section 138 readwith Section 142 of the Negotiable Instruments Act, 1881, against petitioner/accused Ram Krishan. In the complaint, accused moved an application under Section 311 of the Code of Criminal Procedure, 1973 ( for short 'Code') to recall for cross -examination complainant along with original agreement executed probably on 18.08.2010 in respect of apple crop of complainant purchased by accused. This application was dismissed by trial Magistrate on 05.12.2011. The accused filed Cr.MMO No.8 of 2012 under Article 227 of the Constitution of India read with Section 482 of the Code and assailed order dated 05.12.2011. Cr.MMO No.8 of 2012 was dismissed on 13.01.2012. The accused has filed Cr.MP No.179 of 2013 under Article 227 of the Constitution of India readwith Section 482 of the Code for recalling order dated 13.01.2012 passed in Cr.MMO No.8 of 2012. After the decision of Cr.MMO No.8 of 2012, accused moved another application under Section 91 of the Code for summoning agreement in dispute. This application was opposed by the complainant. The trial Court on 27.03.2012 dismissed the application with the observation that the application has been moved on behalf of the accused just to linger on the proceedings and, therefore, the trial Court imposed costs Rs.500/ - to be paid by the accused to the complainant. The order dated 27.03.2012 has been assailed in Cr.MMO No.68 of 2012. 3. I have heard learned counsel for the parties. On behalf of petitioner/complainant, learned Senior Advocate has submitted that on 13.01.2012, true, correct facts were not brought to the notice of this Court which led to dismissal of Cr.MMO No.8 of 2012 on 13.01.2012. The original agreement or its copy was never with the accused which is clear from the statement of complainant. He has submitted that party should not suffer for the mistake of the counsel or the order of the Court based upon such mistake of the counsel and, therefore, submission has been made for recalling the order dated 13.01.2012. The original agreement or its copy was never with the accused which is clear from the statement of complainant. He has submitted that party should not suffer for the mistake of the counsel or the order of the Court based upon such mistake of the counsel and, therefore, submission has been made for recalling the order dated 13.01.2012. In Cr.MMO No.68 of 2012, it has been argued by learned Senior Advocate that under Section 91 of the Code, the Court is competent to summon the agreement in question from the complainant in order to determine the real controversy. The Court below has misconstrued and misinterpreted the statement of complainant. The learned Senior Advocate has relied Rafiq and another versus Munshilal and another AIR 1981 SC 1400 , Kunjuvarkey versus State of Kerala 2001 (2) All India Criminal L.R. 778, H.R.Shetty and others versus Titas Farnandes 2003 CRI.L.J. 1383, Trilok Singh versus State of Himachal Pradesh 2004 CRI.L.J.3134 (HP), State of Orissa versus Debendra Nath Padhi (2005) 1 SCC 568 in support of his submissions. 4. THE learned counsel for the complainant has submitted that the accused moved an application under Section 311 of the Code which was dismissed by the trial Magistrate on 05.12.2011, Cr.MMO No.8 of 2012 in which order dated 05.12.2011 was assailed has already been dismissed. The order dated 05.12.2011 cannot be modified, reviewed, recalled in view of Section 362 of the Code. The accused moved another application under Section 91 of the Code to achieve the same purpose for which application under Section 311 of the Code was filed unsuccessfully, but said application has also been rightly dismissed by the trial Magistrate on 27.03.2012. The learned counsel for the complainant has defended orders dated 13.01.2012 and 27.03.2012. In support of his submissions, he has relied Santosh Kumar Ganguly and another versus Registrar, Appellate Side, High Court, Calcutta and another AIR 1959 Calcutta 317, Smt. Sooraj Devi versus Pyare Lal and another AIR 1981 SC 736 , Hari Singh Mann versus Harbhajan Singh Bajwa and others (2001) 1 SCC 169 , State Represented by DSP, SB CID, Chennai versus K.V. Rajendran and others (2008) 8 SCC 673 and Sunil Kumar versus State of Haryana (2012) 5 SCC 398 . The complainant in the application under Section 311 of the Code has made the following prayer: - "It is, therefore, most humbly prayed that this application may kindly be allowed and the non -applicant/complainant named above may kindly be recalled in the interest of justice along with the original agreement which was executed in the 3rd week of August, 2010 (most probably on 18.08.2010) or its copy with regard to be sale of his apple crop to the applicant/accused, so that the complainant may further be cross -examined about the actual amount of sale of his apple crop, purchased by the applicant/accused as has been submitted above. It will also help this Ld. Court for the just decision of the case." The application under Section 311 of the Code of the accused was dismissed by the trial Magistrate on 05.12.2011. In Cr.MMO No.8 of 2012, the order dated 13.01.2012 reads thus: - "This petition has been filed for recalling the complainant for further cross -examination along with original agreement executed in the 3rd week of August, 2010 between the parties. It has not been pointed out that in fact at any point of time the complainant has admitted that the original agreement is with him. On the contrary from the cross -examination of the complainant read by the learned counsel for the petitioner from his file a suggestion has been given to the complainant that the copy of agreement has also been s upplied to the accused. In these circumstances, no case is made out for recalling the complainant. The petitioner shall be at liberty to bring on record the agreement in accordance with law. The petition is dismissed, so also the pending application." 5. THE Section 362 of the Code reads as follows: - "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." 6. 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." 6. IT has been contended on behalf of the accused that the order dated 05.12.2011 is the result of incorrect presentation of the case on behalf of the accused in the Court in Cr.MMO No.8 of 2012 and, therefore, the order dated 13.01.2012 came to be passed by the Court which requires rectification, modification after recalling the order dated 13.01.2012. He has submitted that existence of agreement with complainant has been established. The learned Senior Advocate referred statement of complainant to highlight his point. In Rafiq and another (supra), the Supreme Court has held that party should not suffer for misdemeanour and inaction of his counsel. In Kunjuvarkey (supra), in the Cause List dated 28.06.1996 Advocate whose name appeared in the Cause List had ceased to be the Advocate and the name of new Advocate, who had filed the 'Vakalatnama' was not shown in the Cause List. The petition was decided in absence of the Advocate. On those facts, the judgment was recalled. In H.R.Shetty and others (supra) recalling of earlier order of acceptance of 'B' report on noticing prima facie mistake committed by Court was held not illegal as order of acceptance of 'B' report not a judgment. In Trilok Singh, the Court found clerical mistake in the previous order and, therefore, Court corrected the judgment to the limited extent to correct and rectify the clerical mistake in the judgment. 7. IN the judgment dated 13.01.2012, it has been observed that cross -examination of the complainant was read by the learned counsel from his file in which a suggestion was given to the complainant that the copy of the agreement was also supplied to the accused. On that ground, the Court rejected the plea of the accused for recalling the complainant for cross -examination. What transpired in the Court on 13.01.2012 in Cr.MMO No.8 of 2012 has not been disputed on behalf of the accused. In fact, on 13.01.2012, in Cr.MMO No.8 of 2012, some other counsel represented the accused in the Court. On that ground, the Court rejected the plea of the accused for recalling the complainant for cross -examination. What transpired in the Court on 13.01.2012 in Cr.MMO No.8 of 2012 has not been disputed on behalf of the accused. In fact, on 13.01.2012, in Cr.MMO No.8 of 2012, some other counsel represented the accused in the Court. The order dated 13.01.2012 is based upon the representation made by the counsel for the accused in the Court. 8. THE Section 362 of the Code provides that no Court when it has signed judgment, or final order disposing of the case shall alter or review the same except to correct a clerical or arithmetical error. The facts in Kunjuvarkey, H.R.Shetty and Trilok Singh (supra) were different. The accused cannot take help from those cases for recalling, modification of order dated 13.01.2012. In Santosh Kumar Ganguly and another (supra), it has been held that Article 227 of the Constitution of India was never meant to authorize the High Court to revise its own decision. In Smt. Sooraj Devi (supra), it has been held that a clerical or arithmetical error is an error occasioned by an accidental slip or omission of the Court. It represents that which the Court never intended to say. It is an error apparent on the face of record and does not depend for its discovery on argument or disputation. An arithmetical error is a mistake of calculation, and a clerical error is a mistake in writing or typing. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 and, therefore, the attempt to invoke that power can be of no avail. The Supreme Court in Hari Singh Ma nn (supra) has held that no review of an order is contemplated under the Code of Criminal Procedure. After the disposal of the main petition, there was no lis pending in the High Court wherein the respondent could have filed any miscellaneous petition. There is no provision in the Code of Criminal Procedure authorizing 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. The Supreme Court reiterated the same statement of law in State represented by DSP, SB, CID, Chennai and Sunil Kumar (supra). Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. The Supreme Court reiterated the same statement of law in State represented by DSP, SB, CID, Chennai and Sunil Kumar (supra). The Supreme Court in Sunil Kumar (supra) also noticed State of Punjab versus Davinder Pal Singh Bhullar (2011) 14 SCC 770 wherein it has been held that any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law. 9. THE accused has failed to make out a case of arithmetical error or clerical error in the order dated 13.01.2012. Assuming that counsel for the accused on 13.01.2012 did not properly represent the case and, therefore, the order dated 13.01.2012 came to be passed by this Court, in that case also, in view of State of Punjab versus Davinder Pal Singh Bhullar (supra), I am of the view that remedy is not available for modification, recalling the order dated 13.01.2012 to accused in this Court by moving an application under Article 227 of the Constitution of India readwith Section 482 of the Code. Thus, seen from any angle, the order dated 13.01.2012 passed in Cr.MMO No.8 of 2012 cannot be recalled, modified, hence, there is no merit in Cr.MP No.179 of 2013. 10. IN the application under Section 91 of the Code, the accused has made the following prayer: - "It is, therefore, most humbly prayed that the agreement in dispute may kindly be summoned from the complainant for the just decision of the case because the application u/s 311 Cr.P.C. filed by the accused has been dismissed by this ld. Court on 5 -12 -2011." In the application under Section 311 of the Code, the accused made a prayer for recalling complainant along with agreement for further cross - examination. The application under Section 311 of the Code was dismissed by the trial Court on 05.12.2011 which was assailed in Cr.MMO No.8 of 2012 which was dismissed on 13.01.2012. The application under Section 91 of the Code, in substance, is another attempt of the accused to repeat and canvass existence of agreement between complainant and accused for apple crop for which dispute has arisen between the parties as per accused. The application under Section 91 of the Code, in substance, is another attempt of the accused to repeat and canvass existence of agreement between complainant and accused for apple crop for which dispute has arisen between the parties as per accused. The accused has failed to recall the complainant for further cross -examination along with agreement by moving application under Section 311 of the Code. The accused has moved application under Section 91 of the Code for production of the alleged agreement by the complainant in the Court. The application under Section 91 of the Code is nothing, but seeking almost same relief by giving different nomenclature to the application. The case in the trial Court is now at the stage of arguments and at that stage the accused has moved the application under Section 91 of the Code. In State of Orissa (supra), the Supreme Court after noticing Section 91 has held that it is implicit that necessity and desirability is to be examined considering the stage when such a prayer for summoning and production is made and the party who makes it, whether police or accused. Under Section 91 summons for production of document can be issued by Court and under a written order an officer in charge of a police station can also direct production thereof. Section 91 does not confer any right on the accused to produce document in his possession to prove his defence. In the application moved under Section 91 of the Code, there is no prayer for proving the alleged agreement. The mere production of alleged agreement in the Court will not assist the Court, even if, the existence of such agreement is assumed. Thus, application under Section 91 of the Code moved by the accused is an exercise in futility. The accused has failed to make out any case for setting aside order dated 27.03.2012 of the trial Court. There is no merit in Cr.MMO No.68 of 2012. 11. IN view of above, Cr.MP No.179 of 2013 in Cr.MMO No.8 of 2012 and Cr.MMO No.68 of 2012 -G are dismissed, so also the pending application(s), if any. The parties through their counsel are directed to appear in the trial Court on 19.11.2013. The record be returned forthwith to the trial Court so as to reach there before the date fixed.