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2014 DIGILAW 512 (RAJ)

Bank of Rajasthan Ltd. v. State of Rajasthan

2014-02-19

MAHESH CHANDRA SHARMA

body2014
Hon'ble SHARMA, J.—Since all the aforesaid three Cr. Misc. applications have been filed against a common order dated 9.7.2012 passed by this Court in S.B. Cr.Misc. Petitioners Nos. 723/2003 and 801/2003, hence the arguments have been heard together and they are being decided by this common order. 2. S.B.Cr. Misc. Application No. 317/2012 has been filed by the Bank of Rajasthan Ltd. (applicant No. 1) and Praveen Kumar Tayal (applicant No. 2) in S.B. Criminal Misc. Petition No. 723/2003 with the following prayer: "It is, therefore, prayed that this application may kindly be allowed, the order dated 9.7.2012 passed by the Hon'ble Court in S.B. Cr. Misc. Petition No. 723/2003 may kindly be recalled and the said petition may kindly be decided on merits after providing adequate opportunity of hearing." It may be mentioned that other applicants 3 to 14 have been arrayed as applicants in the application but their authorisation letters have not been filed for filing this criminal misc. application. 3. S.B. Cr. Misc. Application No. 312/2012 has been filed by H.R. Khan, A.K. Pandya and Bulakidas in S.B. Criminal Misc. Petition No. 801/2003 with the following prayer: "It is, therefore, most humbly prayed that this application may kindly be allowed and the impugned order dated 9.7.2012 passed by the Hon'ble High Court in S.B. Cr.Misc. Petition No. 801/2003 may kindly be recalled and the said petition may kindly be heard and decided on merits after providing an adequate opportunity of hearing to the humble applicants-petitioners." 4. S.B. Cr. Misc. Application No. 335/2012 has been filed by the applicant the Bank of Rajasthan (now amalgamated with the ICICI Bank Limited) in S.B. Criminal Misc. Petition No. 723/2003 with the following prayer: "It is, therefore, most humbly prayed that this application may kindly be allowed and the impugned order dated 9.7.2012 passed by the Hon'ble High Court in S.B. Cr. Misc. Petition No. 723/2003 may kindly be recalled and the said petition may kindly be heard and decided on merits after providing an adequate opportunity of hearing to the humble applicant-petitioner Bank." The applicants 2 to 14 have been arrayed as proforma applicants in the above petition. 5. Misc. Petition No. 723/2003 may kindly be recalled and the said petition may kindly be heard and decided on merits after providing an adequate opportunity of hearing to the humble applicant-petitioner Bank." The applicants 2 to 14 have been arrayed as proforma applicants in the above petition. 5. Learned counsel for the petitioners have contended that vide order 2.5.2003 passed by the trial Court, despite a failure report given by the investigation agency, the trial Court acting on a protest petition filed by the complainant and after recording pre-charge evidence proceeded to take cognizance of alleged offences under Section 406 and 120B IPC against the erstwhile Bank of Rajasthan Ltd. and all its directors/office bearers named in the complaint, as such Cr. Misc. Petitioners (S.B. Cr. Misc. Petition Nos. 723/2003 and 801/2003) were filed with the following prayers: S.B. Cr. Misc. Petition No. 723/2003: "(a) The record of the criminal case No. 113/2002 State/HRB Floriculture Ltd. versus P.K. Tayal and others pending in the court of Judicial Magistrate No. 21, Jaipur City, Jaipur may kindly be summoned and examined; (b) The impugned criminal complaint as also the proceedings taken and orders passed therein including the order dated 2.5.2003 passed by the learned court below may kindly be quashed and set-aside; (c) Any other appropriate order or direction, which may be considered just and proper in the facts and circumstances of the case, may also kindly be issued in favour of the petitioners." S.B. Cr. Misc. Petition No. 801/2003: "It is, therefore, humbly prayed that Your Lordships may be pleased to accept this petition and may be pleased to quash and set aside the orders dated 2.5.2003 (Annx. 7) and 15.7.2003 (Annex. 8) or to pass any other order in favour of the petitioners in the light of the facts and circumstances of the case." 6. In the aforesaid Cr. Misc. 7) and 15.7.2003 (Annex. 8) or to pass any other order in favour of the petitioners in the light of the facts and circumstances of the case." 6. In the aforesaid Cr. Misc. petitions, on 9.7.2012, this Court passed the following order: ^^izkFkhZx.k nh cSad vkQ jktLFkku fyfeVsM o vU; dh vksj ls mijksDr of.kZr ;kfpdk la[;k 723@2003 U;kf;d eftLVªsV] la[;k 21] t;iqj uxj] t;iqj ds U;k;ky; esa yafcr nkf.Md izdj.k la[;k 113@2002 ds lEcU/k esa izLrqr dh x;h gS ,oa izkFkhZx.k ,p-vkj- [kku o vU; dh vksj ls mijksDr of.kZr ;kfpdk la[;k 801@2003 vij ls'ku U;k;k/kh'k] la[;k 1] t;iqj uxj] t;iqj }kjk ikfjr vkns'k fnukad 15-7-2003 ds fo:) izLrqr dh x;h gS] ftlds }kjk izkFkhZx.k ,p-vkj-[kku o vU; dh fuxjkuh ;kfpdk dks fujLr dj fn;k x;kA mDr izkFkhZx.k }kjk mDr fuxjkuh ;kfpdk U;kf;d eftLVªsV] la[;k 21] t;iqj uxj] t;iqj }kjk QkStnkjh izdj.k la[;k 113@2002 esa ikfjr vkns'k fnukad 2-5-2003 ds fo:) izLrqr dh x;h FkhA pwafd mijksDr of.kZr nksuksa gh ;kfpdk,a U;kf;d eftLVªsV] la[;k 21] t;iqj uxj] t;iqj ds U;k;ky; esa yafcr QkStnkjh izdj.k la[;k 113@2002 ds lEcU/k esa izLrqr dh x;h gS] ftlls budk fuLrkj.k bl ,d gh vkns'k ds }kjk mHk;i{k ds fo}ku vf/koDrkx.k dh lgefr ls fuEukuqlkj fd;k tkrk gS& 1- izkFkhZx.k ds fo}ku vf/koDrkx.k dh bl izkFkZuk dks Lohdkj fd;k tkrk gS fd vkjksi cgl ds le; izkFkhZx.k fopkj.k U;k;ky; ds le{k dksbZ vkifŸk mBkrs gS rks fopkj.k U;k;ky; igys mu vkifŸk;ksa dk fuLrkj.k fof/k vuqlkj djs rRi'pkr~ ekeys esa vkxs dk;Zokgh djsaA 2- nksuksa ;kfpdkvksa ds lkFk layXu nksuksa LFkxu izkFkZuk i= fujLr fd;s tkrs gSaA** 7. Against the order dated 9.7.2012 passed by this court, the aforesaid three applications have been filed with the afore-mentioned prayers. 8. Mr. Sudhanshu Kasliwal, Sr. Counsel assisted by Ms. Suruchi Kasliwal and Mr. Mahendra Singh, counsel for the petitioners have contended that although they have given the consent while passing the order dated 9.7.2012 by this Court, but the same was given without obtaining the consent of their respective clients and that's why their consent should be withdrawn and matter should be decided in accordance withlaw. 9. In support of their contentions, they have placed reliance on the following judgments: (i) P. Nallammal and another versus State represented by Inspector Police reported in (1999) 6 SCC 559 (ii) Central Council for Research in Ayurveda & Siddha and another reported in Dr. 9. In support of their contentions, they have placed reliance on the following judgments: (i) P. Nallammal and another versus State represented by Inspector Police reported in (1999) 6 SCC 559 (ii) Central Council for Research in Ayurveda & Siddha and another reported in Dr. K. Santhakumari reported in (2001) 5 Supreme Court Cases 60 (iii) State of Punjab versus Davinder Pal Singh Bhullar and others (with Sumedh Singh Saini versus Davinder Pal Singh Bhullar and others reported in (2011) 14 Supreme Court Cases 770 (iv) Asit Kumar Kar versus State of West Bengal and others reported in (2009) 2 Supreme Court Cases 703. (v) Adalat Prasad versus Rooplal Jindal and others reported in (2004) 7 Supreme Court Cases 338 (vi) Pepsi Foods Ltd. and another versus Special Judicial Magistrate and others reported in (1998) 5 Supreme Court Cases 749. (vii) State of Orissa versus Debendra Nath Padhi reported in (2005) 1 Supreme Court Cases 568 (viii) Gopal Das Sindhi versus State of Assam reported in AIR 1961 SC 986 (ix) State of West Bengal versus Bejoy Kumar Bose and others reported in (1978) 1 SCC 173 (x) S.K. Alagh versus State of Uttar Pradesh and others reported in (2008) 5 SCC 662 (xi) Maharashtra State Electricity Distribution Company Ltd. and Another versus Datar Switchgear Ltd. and others reported in (2010) 10 SCC 479 . 10. On the other hand, Mr. M.M. Ranjan, learned Sr. Counsel assisted by Mr. Arun P. Singh and Mr. V.S. Poonia have contended that this court cannot review its own judgment except to correct the clerical or arithmetical error. They have further drawn the attention of this Court on Section 362 CrPC, which is reproduced as under: "362. Court not to after 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." 11. They have further drawn the attention of this Court on the judgment of Hon'ble Apex Court rendered in the case of State of Kerala versus M.M. Manikantan Nair reported in 2001 Supreme Court Cases (Cri.) 808, wherein in para No. 6, it has been held that: "6. They have further drawn the attention of this Court on the judgment of Hon'ble Apex Court rendered in the case of State of Kerala versus M.M. Manikantan Nair reported in 2001 Supreme Court Cases (Cri.) 808, wherein in para No. 6, it has been held that: "6. The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the court after it has signed its judgment or final order disposing of a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed." 12. Further the court's attention was drawn on the judgment of Hon'ble Apex Court in the case of Hari Singh Maan versus Harbhajan Singh Bajwa reported in (2001) 1 SCC 169 , wherein in para No. 7, it has been held that 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 arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio 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 officio 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 arithmetical error. 13. In the last, they have drawn the attention of this Court towards the relevant part of the Vakalatnama filed by the petitioners, which reads as under: "....and all acts of such counsel or counsels shall be equally and similarly binding on me/us as if done by me/our said counsel and as if done by me/us personally." 14. 13. In the last, they have drawn the attention of this Court towards the relevant part of the Vakalatnama filed by the petitioners, which reads as under: "....and all acts of such counsel or counsels shall be equally and similarly binding on me/us as if done by me/our said counsel and as if done by me/us personally." 14. In view of above, they have contended that once the Vakalatnama is signed by the petitioners and the same is handed over to the Advocates, the act of the advocates is binding on the petitioners as if the same was done by the petitioners themselves. Hence, the applications filed on behalf of the petitioners are not maintainable and the same deserve to be dismissed. 15. After hearing both the parties and looking to the facts and circumstances of the case, as also the definition of Section 362 CrPC and the order dated 9.7.2012 passed by this Court under Section 482 Cr.P.C. on the basis of consent given by the advocates of the respective parties, as indicated above, and the law laid down by the Apex Court in the case of State of Kerala versus M.M. Manikantan Nair (supra) and Hari Singh Maan Versus Harbhajan Singh Bajwa (supra), in my view, the petitioners have filed the applications before this Court for recalling the order dated 9.7.2012, which is contrary to the provisions of Section 362 Cr.P.C., hence I do not think it proper to recall the order dated 9.7.2012 passed by this Court and thus, all the aforesaid three applications being bereft of any merit deserve to be dismissed, which stand dismissed accordingly.