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2015 DIGILAW 1338 (RAJ)

Nawal Kishore v. State

2015-07-20

MAHESH CHANDRA SHARMA

body2015
Hon'ble SHARMA, J.— This Cr. Misc. application No. 194/2015 has been filed by the petitioner Nawal Kishore in Cr. Misc. Pet. No. 1081/2014 with the following prayer: "It is, therefore, most humbly prayed that this application for recalling (revival) may kindly be allowed and the order dated 13.5.2014 in S.B. Cr. Misc. Pet. No. 1081/2014 Nawal Kishore Meena vs. State of Rajasthan may kindly be recalled and further the Misc. petition may be decided afresh on merits after registering the same to its original number." 2. Brief facts of the case are that earlier the petitioner moved a Cr. Misc. Petition under Sec. 482 Cr.P.C. with the following prayer: "It is, therefore, most humbly and respectfully prayed that your lordships may graciously be pleased to admit and allow this misc. petition and call for the record relating to this case, and further be pleased to (i) issue order for transfer the investigation of FIR No. 84/2013 P.S. Bani Park, Jaipur City (South) to CBI and also directed to complete the investigation in a prescribed period; (ii) any other order or direction which this Hon'ble Court deems fit and proper in the facts & circumstances of the case may also be passed in favour of the petitioner." 3. This Court vide order dated 13.5.2014 while dismissing the petition, has passed the following order: "None is present for the petitioner. I have heard learned PP for the State and carefully perused the relevant material on record. I do not think it proper to allow this petition and, hence the same being without any substance, is hereby dismissed. However, the petitioner is free to move an application for revival of this petition within a period of one months from today, if he/they desire(s) to do so." 4. Thereafter, instead of seeking revival of earlier petition, the petitioner again has moved fresh Cr.Misc. Pet. No. 2885/2014, which too was dismissed by the Coordinate Bench of this court vide order dated 23.4.2015, which is reproduced as under: "The second petition has been filed for the same relief as was made in the first petition bearing No. 1081/2014. It was disposed of with liberty to seek revival of the petition but instead of seeking revival, fresh petition has been filed. It is not maintainable when no substance was found in the earlier petition. The declaration in the note shows filing of the petition earlier also. It was disposed of with liberty to seek revival of the petition but instead of seeking revival, fresh petition has been filed. It is not maintainable when no substance was found in the earlier petition. The declaration in the note shows filing of the petition earlier also. The memo of petition does not disclose as to what was the outcome. In view of the above, jurisdiction of this court has been misused, thus petition is dismissed with cost of Rs. 2000/- to be deposited with the Rajasthan State Legal Services Authority,Jaipur within a period of 15 days. The deputy Registry (Judl.) is directed to see compliance of the order." 5. At this stage, the petitioner has moved the instant application for recalling of the order dated 13.5.2014, and contended that if that order is not recalled, then the petitioner shall suffer huge irreparable loss. 6. On the other hand, learned Public Prosecutor has contended that this court cannot review its own judgment except to correct the clerical or arithmetical error. He has further drawn the attention of this court on Sec. 362 Cr.P.C., 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." 7. He has further drawn the attention of this court on the judgment of Hon'ble Apex Court rendered in the case of State of Kerala vs. M.M. Manikantan Nair reported in 2001 SCC (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 clerifical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed." 8. 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 clerifical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed." 8. Further Court's attention was drawn on the judgment of Hon'ble Apex Court in the case of Hari Singh Maan vs. Harbhajan Singh Bajwa reported in (2002) 1 SCC 169, wherein in para No. 7, it has been held that Sec. 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 acknowledge 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. 9. After hearing both the parties, and looking to the facts & circumstances of the case, as also the definition of Sec. 362 Cr.P.C., the order dated 13.5.2014 passed by this court under Sec. 482 Cr.P.C., the order dated 23.4.2015 passed in SBCr. Misc. Pet No. 2885/2014, and the law laid down by the Apex Court in the case of State of Kerala vs. M.M. Manikantan Nair (supra) and Hari Singh Maan vs. Harbhajan Singh Bajwa (supra), in my view, the application filed by the petitioner before this court for recalling the Harbhajan Singh Bajwa reported in (2002) 1 SCC 169, wherein in para No. 7, it has been held that Sec. 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 acknowledge 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. 10. After hearing both the parties, and looking to the facts & circumstances of the case, as also the definition of Sec. 362 Cr.P.C., the order dated 13.5.2014 passed by this court under Sec. 482 Cr.P.C., the order dated 23.4.2015 passed in SBCr.Misc. Pet. No. 2885/2014, and the law laid down by the Apex Court in the case of State of Keerla vs. M.M. Manikantan Nair (supra) and Hari Singh Maan vs. Harbhajan Singh Bajwa (supra), in my view, the application filed by the petitioner before this court for recalling the order dated 13.5.2014, is hereby dismissed.