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2015 DIGILAW 2118 (PNJ)

Chetan Walia v. State of Haryana

2015-11-30

RAMESHWAR SINGH MALIK

body2015
JUDGMENT : Rameshwar Singh Malik, J. Applicant-respondent No. 2, under the garb of alleged recalling, as a matter of fact, seeks review of the order dated 16.5.2012 passed by this Court, whereby a petition under Section 482 of the Code of Criminal Procedure ('Cr.P.C' for short), for quashing of FIR No. 356 dated 28.8.2006 registered under Sections 498-A , 406, 506 and 34 of the Indian Penal Code ('IPC' for short) at Police Station City Jagadhri, District Yamuna Nagar and the consequential proceedings arising therefrom, was allowed by this Court, on the basis of compromise (Annexure P-3). 2. Brief narration of undisputed facts is necessary for disposal of the instant application. Accused-petitioner Chetan Walia (husband) and his parents approached this Court by way of above-said petition under Section 482 Cr.P.C. for quashing of the FIR, on the basis of compromise. Vide order dated 7.9.2011 passed by this Court, the parties were directed to get their statements recorded before the learned trial Court to enable the learned trial Court to record its satisfaction on the genuineness of compromise, it being a matrimonial dispute. 3. In compliance of the order dated 7.9.2011 passed by this Court, learned Additional Chief Judicial Magistrate at Jagadhri sent his report dated 11.11.2011 to the effect that parties had arrived at an amicable settlement without any pressure. Compromise arrived at between the parties was found to be a genuine one. Thereafter, the FIR was ordered to be quashed by this Court vide order dated 16.5.2012, after hearing both the parties. 4. It is also not in dispute that after passing of the above-said order dated 16.5.2012 passed by this Court, parties to the marriage again started living together. However, after a period of one year of the above-said order dated 16.5.2012, instant application came to be filed by applicant-respondent No. 2 (wife), alleging that the petitioner-husband has again started maltreating her and she wants this Court to recall the above-said order dated 16.5.2012, directing the petitioners-accused to face the criminal trial, arising out of the above-said FIR. 5. Notice of this application was issued and pursuant thereto, reply has been filed on behalf of the non-applicant-petitioner (husband). 6. Repeated and sincere efforts were made to get the matter amicably settled. The case was referred to the Mediation and Conciliation Centre of this Court. Non-applicant-Petitioner (husband) was directed to pay an amount of Rs. 5. Notice of this application was issued and pursuant thereto, reply has been filed on behalf of the non-applicant-petitioner (husband). 6. Repeated and sincere efforts were made to get the matter amicably settled. The case was referred to the Mediation and Conciliation Centre of this Court. Non-applicant-Petitioner (husband) was directed to pay an amount of Rs. 1 lac to the applicant. Thereafter, he was directed to keep on paying an amount of Rs. 60,000/- per month to the applicant-respondent (wife), vide order dated 16.7.2014 with a view that the parties to the marriage would try to reconcile, keeping in view the future of their children. However, repeated and sincere efforts, having been made by the Mediator as well as by this Court, have failed and the parties could not arrive at an amicable settlement. 7. Learned counsel for the applicant (wife), while placing the reliance on the judgments of this Court in Maninder Kaur Vs. Gurinder Singh Dhillon (2008) 149 PLR 62 , and Sher Mohd. Khan v. Madan Lal and another, 2013 (4) RCR (Crl.) 5, contends that statutory bar under Section 362 Cr.P.C. would not stand in the way of this Court, while exercising its inherent jurisdiction under Section 482 Cr.P.C. for recalling the order dated 16.5.2012. He submits that the non-applicant-petitioner (husband) has mis-conducted himself to such an extent that it would amount to fraud played on this Court, because of which the order dated 16.5.2012 deserves to be recalled. He prays for recalling the order dated 16.5.2012, by allowing the present application. 8. On the other hand, learned counsel for the non-applicant-husband vehemently contended that it was not the non-applicant-husband who has misconducted himself, but it was the applicant-wife who has been trying throughout to abuse the process of this Court. He further submits that applicant has been trying to get undue benefit out of the sympathy shown by this Court, while passing the order dated 16.7.2014, directing non-applicant-petitioner (husband) to keep on paying an amount of Rs. 60,000/- per month, which he had been sincerely paying to the applicant-respondent. He also submits that non-applicant-petitioner had always been ready and he is still ready and willing to take the applicant-wife along with children with him, without putting any pre-condition, because he wants to stay with his family. 60,000/- per month, which he had been sincerely paying to the applicant-respondent. He also submits that non-applicant-petitioner had always been ready and he is still ready and willing to take the applicant-wife along with children with him, without putting any pre-condition, because he wants to stay with his family. However, it was the applicant-wife, who had been adamant all through, only to put unwarranted and unending harassment to the non-applicant-husband to satisfy her ego. He would next contend that since the applicant-wife is a qualified lady, she was capable of maintaining herself as well as the children but the non-applicant-husband was still not running away from his responsibility and had been regularly paying the amount of maintenance @ Rs. 60,000/- per month to the applicant-wife, as directed by this Court vide above-said order dated 16.7.2014. He also submits that neither any element of fraud was involved in the present case nor even the basic ingredients of fraud were pleaded by the applicant, which would be sine quo non for recalling the order dated 16.5.2012. He prays for dismissal of the application with exemplary costs. 9. Having heard the learned counsel for the parties at considerable length, after careful perusal of the record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that instant one has not been found to be a fit case, warranting interference at the hands of this Court, for recalling the order dated 16.5.2012, while exercising its inherent jurisdiction under Section 482 Cr.P.C, for the following more than one reasons. 10. Some of the above-said facts are not in dispute. After passing of the above-said order dated 16.5.2012 by this Court, thereby quashing the above-said FIR, on the basis of compromise, parties to the marriage again started living together. It has gone unrebutted on record that from September 2011 to March 2013, non-applicant-petitioner (husband) and applicant-respondent (wife) stayed together with their children. They visited many places together. However, because of their temperamental differences, they could not pull on together for long. In this view of the matter, it cannot be said that petitioner-husband alone was at fault. It was an unending tussle of ego between husband and wife, because of which, their children are suffering but both of them are not ready to budge from their respective stand and are equally adamant. 11. In this view of the matter, it cannot be said that petitioner-husband alone was at fault. It was an unending tussle of ego between husband and wife, because of which, their children are suffering but both of them are not ready to budge from their respective stand and are equally adamant. 11. In the recent past, it has come to the notice of this Court that in many of the matrimonial cases, as and when efforts are made to make the parties understand for arriving at an amicable settlement, they have been found under a totally wrong impression, as if they were being asked to oblige the court. They failed to understand that the Court has no interest in any of the matter, except to make the parties understand for their own welfare and better future of their children. Similar has been found to be the fact situation in the present case and more particularly applicant-wife. It is so said, because the order dated 16.7.2014 was passed by this Court with this hope and trust that applicant will try to reconcile, keeping in view the future of her children but she has miserably failed to do so. On the other hand, non-applicant-husband has not been found at fault nor he tried to play any fraud either with the applicant-wife or with this Court, as sought to be alleged against him. 12. When the mediation failed in the instant case, another effort was made by this Court for amicable settlement between the parties. They were heard at length in the Chamber and only thereafter order dated 16.7.2014 was passed which reads as under:- "Petitioner No. 1-Chetan Walia and applicant-respondent No. 2/Deepali were heard at length in the Chamber. They jointly pray for some more time. If both the parties stay together alongwith the children, in that situation, petitioner No. 1 would not be required to pay any amount to applicant-respondent No. 2. However, if applicant-respondent No. 2 and petitioner No. 1 stay separately, petitioner No. 1 shall keep on paying an amount of Rs. 60,000/- per month to applicant-respondent No. 2 on or before 6th day of every month by way of Bank Draft in her name. This would be an interim arrangement for the maintenance of the wife and three children and will not prejudice the rights of either of the parties. List on 23.9.2014." 13. 60,000/- per month to applicant-respondent No. 2 on or before 6th day of every month by way of Bank Draft in her name. This would be an interim arrangement for the maintenance of the wife and three children and will not prejudice the rights of either of the parties. List on 23.9.2014." 13. After giving anxious consideration to the conduct of the parties, there is no room for doubt that none of the parties made any sincere effort to stay together with their children. Neither the applicant-wife nor non-applicant-husband is ready to shed the ago which is ruining their married life and also the proper growth of their children. This Court wish that the applicant-wife as well as non-applicant-husband would have realised the repeated blunders committed by them to satisfy their ego which is spoiling the future of their children. In fact, applicant has been found trying to misuse the process of law as well as the sympathy shown by this Court. She has also been found intending to cause maximum and wholly unwarranted harassment to the non-applicant-husband and his parents just to satisfy her ego. 14. Coming to the scope and ambit of statutory bar for recalling/reviewing the order dated 16.5.2012, the issue is no more res integra. In fact, the provisions of law contained in Section 362 Cr.P.C. are crystal clear. So far as judicial precedents are concerned, more than one are available on the subject, the latest being Abdul Basit @ Raju and others etc. v. Mohd. Abdul Kadir Chaudhary and another, 2015 (1) SCC (Crl.) 257, wherein the Hon'ble Supreme Court, after discussing the entire case law, as reiterated its earlier view taken in the case of Hari Singh Mann Vs. Harbhajan Singh Bajwa and Others, (2001) 1 SCC 169 . 15. The relevant observations made by the Hon'ble Supreme Court in paras 25 to 31 of its judgment in Abdul Basit's case (supra), which can be gainfully followed in the present case, read as under: "25. It is an accepted principle of law that when a matter has been finally disposed of by a Court, the Court is, in the absence of a direct statutory provision, functus officio and cannot entertain a fresh prayer for relief in the matter unless and until the previous order of final disposal has been set aside or modified to that extent. It is also settled law that the judgment and order granting bail cannot be reviewed by the Court passing such judgment and order in absence of any express provision in the Code for the same. Section 362 of the Code operates as bar to any alteration or review of the cases disposed of by the Court. The singular exception to the said statutory bar is correction of clerical or arithmetical error by the Court. 26. In Hari Singh Mann Vs. Harbhajan Singh Bajwa and Others (2001) 1 SCC 169 , a criminal miscellaneous petition was filed by the petitioner therein in a Writ Petition disposed of by the High Court. The High Court had not only entertained the said petition but also issued directions. In appeal, this Court annulled the judgment and order passed by the High Court on grounds that practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the court as no review of a final order passed by the High Court is contemplated under the Code. This Court has observed as under : "9. There is no provision in the Code of Criminal Procedure authorising 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. 10. 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 an 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 an arithmetical error. 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 an arithmetical error. The reliance of the respondent on Talab Haji Hussain case is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7-1-1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment. 11. The impugned orders of the High Court dated 30-4-1999 and 21-7-1999 which are not referable to any statutory provisions, having been passed apparently in a review petition in a criminal case are without jurisdiction and liable to be quashed." 27. This Court in Gian Singh Vs. State of Punjab and Another, (2012) 10 SCC 303 has extended the bar under Section 362 as a necessary check on inherent powers of the High Court under Section 482. This Court has opined that 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. This Court has observed as under : "5. Section 362 of the Code expressly provides 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 save as otherwise provided by the Code. Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers, however, as much are controlled by principle and precedent as are its express powers by statute. Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers, however, as much are controlled by principle and precedent as are its express powers by statute. If a matter is covered by an express letter of law, the court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction." 28. This Court in paragraph 30 of its decision in Central Bureau of Investigation Vs. V. Vijay Sai Reddy (2013) 7 SCC 452 , has cautioned that cancellation of bail necessarily involves the review of a decision already made, it should always be exercised very sparingly by the court of law. 29. It is a well settled proposition of law what cannot be done directly, cannot be done indirectly. While exercising a statutory power a Court is bound to act within the four corners of the Statute. The statutory exercise of the power stands on a different pedestal than the power of judicial review vested in a Court. The same has been upheld by this Court in Bay Berry Apartments Pvt. Ltd. and Another Vs. Shobha and Others, AIR 2007 SC 226, U.P. State Brassware Corpn. Ltd. and Another Vs. Udai Narain Pandey (2006) 1 SCC 479 , and Rashmi Rekha Thatoi and Another Vs. State of Orissa and Others, (2012) 5 SCC 690 . It is the duty of the superior courts to follow the command of the statutory provisions and be guided by the precedents and issue directions which are permissible in law. 30. In the instant case, the order for bail in the bail application preferred by the accused-petitioners herein finally disposes of the issue in consideration and grants relief of bail to the applicants therein. Since, no express provision for review of order granting bail exists under the Code, the High Court becomes functus officio and Section 362 of the Code applies herein barring the review of judgment and order of the Court granting bail to the accused-petitioners. Even though the cancellation of bail rides on the satisfaction and discretion of the Court under Section 439(2) of the Code, it does not vest the power of review in the Court which granted bail. Even though the cancellation of bail rides on the satisfaction and discretion of the Court under Section 439(2) of the Code, it does not vest the power of review in the Court which granted bail. Even in the light of fact of misrepresentation by the accused-petitioners during the grant of bail, the High Court could not have entertained the respondent/informant's prayer by sitting in review of its judgment by entertaining miscellaneous petition. 31. Herein, the High Court has assigned an erroneous interpretation to the well settled position of law, assumed expanded jurisdiction onto itself and passed an order in contravention of Section 362 of the Code cancelling the bail granted to the petitioners herein. Therefore, in our considered opinion, the High Court is not justified in reviewing its earlier order of grant of bail and thus, the impugned judgment and order requires to be set aside." 16. So far as the judgments relied upon by the learned counsel for the applicant are concerned, there is no dispute about the law laid down therein. However, on close perusal of the cited judgments, none of them has been found to be of any help to the applicant, being distinguishable on facts. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judge made law thereto. Sometimes, difference of one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmasundara Rao and Others Vs. State of Tamil Nadu and Others, (2002) 3 SCC 533 . 17. No other argument was raised. 18. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the instant application is wholly misconceived, bereft of merit and without any substance, thus, it must fail. No case for interference has been made out. 19. However, before parting with this order, this Court still hope and trust that the parties to this avoidable litigation, and particularly the applicant-wife will do a little more introspection with a view to shed her ego for the sake of bright future of her children. No case for interference has been made out. 19. However, before parting with this order, this Court still hope and trust that the parties to this avoidable litigation, and particularly the applicant-wife will do a little more introspection with a view to shed her ego for the sake of bright future of her children. It is also expected from the husband that if the wife comes to him with open mind, he will also give her all love and affection, forgetting and forgiving the past mistakes of his better half, following the advice of a Saint. "BE TO HER FAULTS A LITTLE BLIND; AND BE TO HER VIRTUES VERY KIND." When applied conversely, it equally applies to the wife as well. 20. Resultantly, with the above-said observations made, the present application stands dismissed, however, with no order as to costs.