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2015 DIGILAW 605 (PNJ)

Sonica Malhotra v. State of Punjab

2015-04-07

DAYA CHAUDHARY

body2015
JUDGMENT : Daya Chaudhary, J. Cri. Misc. No. 42158 of 2013 Allowed as prayed for. Cri. Misc. No. 42159 of 2013 This application has been moved under Section 482 Cr.P.C for expunging the remarks made against the petitioners with regard to their conduct in the judgment dated 12.08.2013 passed in Criminal Misc. No. M-8930 of 2012. 2. Learned counsel for the applicant-petitioners submits that the main writ petition was dismissed by this Court on 12.08.2013 and certain remarks were mentioned against the petitioners, which are being considered in the subsequent proceedings as well. He also submits that the observations made by this Court in para No. 2 of the said judgment with respect to conduct of the petitioners, will not only prejudice the case of the petitioners but the same will also affect the merits of the case. 3. A prayer in this application has been made for expunging those remarks as the same were passed after keeping in view the facts and circumstances prevailing during that stage and the same may not be considered in the subsequent proceedings. Learned counsel for the applicant-petitioners also submits that this Court has inherent powers under Section 482 Cr.P.C and the remarks, which are going to prejudice the interest of the petitioners, are liable to be expunged in view of judgments of Hon'ble the Apex Court in cases S.K. Viswambaran v. Koyakunju 1987(2) RCR(Criminal) 175, State of U.P. v. Mohammad Naim 1964 AIR (SC) 703 as well as judgment of this Court in case M.R. Sachdeva v. State of Haryana and another 1990(3) RCR (Criminal) 143. 4. Learned counsel for respondent-State as well as learned counsel for respondent No. 2/non-applicant have opposed the submissions made by learned counsel for the applicant-petitioners on the ground that review or modification of a judgment is not permissible under law. 5. Learned counsel for the respondents have relied upon the judgments of Hon'ble the Apex Court in cases Hari Singh Mann v. Harbhajan Singh Bajwa 2000(4) RCR (Criminal) 650, Moti Lal v. State of Madhya Pradesh 1994(3) RCR (Criminal) 77, Mostt. Simrikhia v. Smt. Dolley Mukherjee, Smt. Chhabi Mukherjee and another 1990(2) RCR (Crl.) 337 and State Rep. by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran and others 2008(4) RCR (Criminal) 278. 6. Heard the arguments of learned counsel for the parties and have also perused the order passed by this Court on 12.08.2013. 7. Simrikhia v. Smt. Dolley Mukherjee, Smt. Chhabi Mukherjee and another 1990(2) RCR (Crl.) 337 and State Rep. by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran and others 2008(4) RCR (Criminal) 278. 6. Heard the arguments of learned counsel for the parties and have also perused the order passed by this Court on 12.08.2013. 7. The present application has been moved for expunging the remarks made in para No. 2 of the judgment dated 12.08.2013, which are as under:- "The conduct of the petitioners does not appear to be fair which is clear from the fact that in spite of directions issued by this Court to the petitioners to be present before the Investigating Agency on 24.03.2012 at 11.30 a.m. in Police Station, an application was moved before this Court for pre-ponement of date. On subsequent dates also, the petitioners did not appear on one pretext or the other in spite of giving undertaking before the Court. Although the carelessness on the part of the Commissioner of Police is reflected in filing of affidavit and the stand taken by the complainant has been reiterated, which is unwarranted. That conduct of the police official can be termed as negligent but the same cannot be termed as biased. Moreover, nothing has been pointed out as to how the Investigating Officer is partial or biased except on the ground that the petitioners have been called upon to join investigation or to answer some of the questionnaires or to supply some documents. Petitioners themselves are not serious in joining investigation and in supplying the documents. To play hide and seek with the Investigating Agency is also not fair on the part of the petitioners." 8. Admittedly, this Court has inherent jurisdiction under Section 482 Cr.P.C, in case, the Court comes to the conclusion that the same is necessary to prevent the abuse of the process of the Court and to secure the ends of justice but that is to be exercised under exceptional circumstances. It is also not disputed that there is no provision in the Code of Criminal Procedure authorising this Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction but such power can be exercised, in case, some typographical or clerical mistakes are there. Different view points have been observed in various judgments of Hon'ble the Apex Court as well as of this Court. 9. Different view points have been observed in various judgments of Hon'ble the Apex Court as well as of this Court. 9. This issue came up before Hon'ble the Apex Court in Hari Singh Mann's case (supra), wherein, it was held that there is no provision in the Code authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction and such power can be exercised with the aid or under the cloak of Section 482 of the Code. 10. As per provisions of Section 362 of the Code, in case, the matter is finally disposed of by a Court, the said Court becomes functus officio and such order cannot be altered except to correct a clerical or I arithmetical error. 11. Similarly, in Mostt. Simrikhia'si case (supra), it was held that such power cannot be exercised as the same is expressly barred. In case, there has been change in the circumstances of the case, it would in order for the High Court to exercise its inherent powers in the prevailing circumstances to secure the ends of justice or to prevent the abuse of the process of the Court. 12. Similar view was also observed in Sankatha Singh v. State of U.P. 1962 (Supp.) 2 SCR 817, wherein, it was held that Section 362 of the Code mandates that no Court can alter or review its judgment or final order after signing the same. This 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 dis-entitled to entertain a fresh prayer for the same relief unless the final order is set aside by the Court of Competent jurisdiction as provided under law. 13. In the present case also, the application has not been moved to correct any clerical or arithmetic error but for expunging the remarks made against the applicant-petitioners. Moreover, the Order dated 12.08.2013 passed by this Court has been upheld by Hon'ble the Apex Court. 14. There is no merit in the contention raised by learned counsel for the applicant-petitioners and the application, being devoid of any merit, is hereby dismissed. 15. Moreover, the Order dated 12.08.2013 passed by this Court has been upheld by Hon'ble the Apex Court. 14. There is no merit in the contention raised by learned counsel for the applicant-petitioners and the application, being devoid of any merit, is hereby dismissed. 15. However, it is observed that the remarks in para No. 2 of the judgment dated 12.08.2013 were made, keeping in view the conduct of the applicant-petitioners during that period and the same cannot be used against them in subsequent proceedings of the case.