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2016 DIGILAW 472 (HP)

Tara Pati v. Mamta Malhotra

2016-04-13

P.S.RANA

body2016
ORDER : 1. Present petition is filed under Section 482 of the Code of Criminal Procedure 1973 for review of criminal order dated 4.11.2014 passed in Cr. MMO No. 126 of 2014 title Tara Pati vs. Smt. Mamta Malhotra. It is pleaded that petition was withdrawn by learned Advocate without any instruction from petitioner and prayer for review of order dated 4.11.2014 passed in Cr. MMO No. 126 of 2014 sought. 2. Court heard learned Advocate appearing on behalf of petitioner and learned Advocate appearing on behalf of non-petitioner and also perused entire record carefully. 3. Following points arise for determination in present petition. (1) Whether order dated 4.11.2014 passed by High Court of HP in criminal MMO No. 126 of 2014 title Tara Pati vs. Smt. Mamta Malhotra is liable to be reviewed as mentioned in memorandum of grounds of petition? (2) Final Order. Findings upon point No. 1 with reasons. 4. Submission of learned Advocate appearing on behalf of petitioner that order dated 4.11.2014 passed by High Court of HP in Cr.MMO No. 126 of 2014 title Tara Pati vs. Smt. Mamta Malhotra be reviewed because petitioner did not instruct his learned Advocate to withdraw Cr. MMO No. 126 of 2014 is rejected being devoid of any force for reasons hereinafter mentioned. Petitioner has levelled serious allegation against learned Advocate Sh G.R Palsra. Petitioner did not implead Sh G.R. Palsra as co-respondent in present petition. It is well settled law that no one should be condemned un-heard on the concept of audi alteram partem. It is held that review petition is bad for non joinder of necessary party i.e. Mr. G.R. Palsra Advocate. 5. On dated 4.11.2014 Sh G.R. Palsra Advocate withdrew Cr. MMO No. 126 of 2014. Order dated 4.11.2014 is quoted in toto: 4.11.2014 Learned Advocate appearing on behalf of petitioner submitted that he does not want to continue with present Cr.MMO No. 126/2014 and same be dismissed as withdrawn. In view of submission of learned Advocate appearing on behalf of petitioner Cr. MMO No. 126/2014 is dismissed as withdrawn, so also pending application if any. Sd/- Judge H.P. High Court. 6. It is well settled law that under Section 362 of code of criminal procedure 1973 criminal court is not legally competent to alter its final judgment announced or final order announced except to correct clerical or arithmetical error. MMO No. 126/2014 is dismissed as withdrawn, so also pending application if any. Sd/- Judge H.P. High Court. 6. It is well settled law that under Section 362 of code of criminal procedure 1973 criminal court is not legally competent to alter its final judgment announced or final order announced except to correct clerical or arithmetical error. It is proved on record that Cr. MMO No. 126 of 2014 was disposed of finally vide order dated 4.11.2014 by way of dismiss as withdrawn. 7. It was held in case reported in Smt. Sooraj Devi vs. Pyare Lal and Another, AIR 1981 SC 736 that inherent powers of the court cannot be exercised for doing that which is specifically prohibited by code of criminal procedure 1973. It is held that review of final order in criminal cases is prohibited under Section 362 of code of criminal procedure 1973 except clerical or arithmetical error. 8. It is well settled law that arithmetical error is a mistake of calculation. It is well settled law that clerical error is mistake in writing or typing. Sankatha Singh vs. State of U.P. AIR 1962 Apex Court 1208. 9. It is held that there is no arithmetical or clerical error in order dated 4.11.2014 passed in Cr. MMO No. 126 of 2014. It is not expedient in the ends of justice to review criminal order dated 4.11.2014 passed in Cr. MMO No. 126 of 2014. In view of above stated facts point No. 1 is answered in negative. Point No. 2 (Final Order). 10. In view of findings on Point No. 1 petition filed under Section 482 of the code of criminal procedure 1973 is dismissed. Petition is disposed of. All pending applications if any are also disposed of.