Research › Search › Judgment

Gujarat High Court · body

2016 DIGILAW 535 (GUJ)

Jayeshbhai Narendrabhai Raval v. State of Gujarat

2016-03-04

HARSHA DEVANI

body2016
JUDGMENT : Harsha Devani, J. 1. By this application stated to be an application under section 482 of the Code of Criminal Procedure, 1972 (hereinafter referred to as "the Code"), the applicant seeks recall of the order dated 09.12.2013 passed by this court in Criminal Miscellaneous Application No. 17291 of 2013 whereby, the court, in the exercise of powers under section 482 of the Code has quashed the first information report registered vide Lodhika, Rajkot Rural I - C.R. No. 52 of 2013. 2. The facts stated briefly are that the second and third respondents herein had filed an application before this court being Criminal Miscellaneous Application No. 17291 of 2013 seeking quashing of the above referred first information report. In the said proceedings, the learned advocates for the parties had jointly submitted before this court that an amicable settlement had been arrived at between the parties and therefore, no fruitful purpose would be served if the proceedings pursuant to the above first information report are permitted to continue. Accordingly, a request for terminating the proceedings was made by the learned advocates for the respective parties. 3. Before this court, the applicant herein had filed an affidavit dated 6th December, 2013, wherein he had categorically stated that after filing the complaint, the dispute is amicably settled between them and that he has been given power of attorney to look after the Plot No. 27 of Survey No. 19, situated at Village Siyali by Jashwantlal Dhirajlal Raval, who happens to be his relative and that after registration of the FIR, the dispute is sorted out with himself as well as Jashwantlal Dhirajlal Raval and that even he has no objection if the proceedings, as prayed for, are terminated. He has further stated that he had filed the complaint as he was having power of attorney of Jashwantlal Dhirajlal Raval and being the original complainant, he was filing the affidavit in support of the petition. That now, there is no ill-will and grievance amongst them and that the complaint filed by him was on account of misunderstanding and misconception which is sorted out. Under these set of circumstances, the applicant had earnestly urged that the court should terminate the proceedings as prayed for by the petitioner. 4. That now, there is no ill-will and grievance amongst them and that the complaint filed by him was on account of misunderstanding and misconception which is sorted out. Under these set of circumstances, the applicant had earnestly urged that the court should terminate the proceedings as prayed for by the petitioner. 4. In the light of the above affidavit made by the applicant and the submissions advanced by the learned counsel for the respective parties stating that the parties have amicably settled the matter between them, this court, placing reliance upon the decisions of the Supreme Court in the case of Gian Singh v. State of Punjab, (2012) 10 SCC 303 and in the case of Madan Mohan Abbot v. State of Punjab, (2008) 4 SCC 582 , had taken note of the fact that the parties had amicably settled the dispute between them and that considering the averments made in the affidavit filed by the applicant, even if the proceedings are permitted to continue, there was hardly any chance of an ultimate conviction, and had quashed the complaint. 5. The applicant has now moved the present application for recall of the earlier order and restoration of the first information report with a direction to the Lodhika Police Station to carry out the investigation in accordance with law. 6. Mr. K.S. Chandrani, learned advocate for the applicant submitted that subsequent to the passing of the order, the respondents - original accused have not abided by the compromise arrived at between the parties. It was pointed out that at the relevant time when the affidavit was made by the applicant in Criminal Miscellaneous Application No. 17291 of 2013, the respondents No. 2 and 3 had also made affidavits in Gujarati on 06.12.2013 as well as in October, 2013, which ought to have been placed on record in the earlier proceedings; however, with a view to defraud the applicant, such affidavits were not brought on record. It was submitted that the affidavit of the applicant giving his consent was in English and that the learned advocate who appeared on behalf of the applicant, was appointed by the accused and that in the affidavit of the applicant, the fact about the terms and conditions of settlement as well as affirmation were not stated. It was submitted that the affidavit of the applicant giving his consent was in English and that the learned advocate who appeared on behalf of the applicant, was appointed by the accused and that in the affidavit of the applicant, the fact about the terms and conditions of settlement as well as affirmation were not stated. It was pointed out that the accused persons have played smart and have obtained an order of quashing the first information report and have played fraud upon the applicant. Thus, the accused persons having obtained a judicial order in their favour by practising a well planned fraud on the applicant, the order passed by this court is rendered void ab initio. 6.1 In support of such submission, Mr. Chandra placed reliance upon the decision of the Supreme Court in the case of Bhaurao Dagdu Paralkar v. State of Maharashtra, (2005) 7 SCC 605 , for the proposition that a "fraud" is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another's loss. It is a cheating intended to get an advantage. "Fraud" as is well known vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letters or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letters. It is also well settled that misrepresentation itself amounts to fraud. 6.2 Reliance was also placed upon the decision of the Supreme Court in the case of S.P. Chengalvaraya Naidu (Dead) by LRs v. Jagannath (Dead) by LRs and others, (1994)1 SCC 1 , for the proposition that it is a settled law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. Such a judgment/decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings. Reliance was also placed upon the decision of the Supreme Court in the case of Indian Bank v. Satyam Fibres (India) Pvt. Ltd., (1996) 5 SCC 550 , wherein it was the case of the appellant that the judgments of the Commission, which was based on letter No. 2776, was obtained by the respondent by practising fraud not only on the appellant but on the Commission too as letter No. 2776 dated 26.8.1991 was forged by the respondent for the purpose of that case. The court held that this plea could not have been legally ignored by the Commission which needs to be reminded that the authorities, be they constitutional, statutory or administrative, (and particularly those who have to decide a lis) possess the power to recall their judgments or orders if they are obtained by fraud as fraud and justice never dwell together. It has been repeatedly said that fraud and deceit defend or excuse no man. The court referred to the decision of Denning, L.J. in the case of Lazarus Estates Ltd. v. Beasley, (1956) 1 QB 702, wherein it was held that "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything." The Supreme Court observed that the judiciary in India also possesses inherent power, specially under section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business. Since fraud affects the solemnity, regularity and orderliness of the proceedings of the court and also amounts to an abuse of the process of the court, the courts have been held to have inherent power to set aside an order obtained by fraud practised upon that court. Similarly, where the court is misled by a party or the court itself commits a mistake which prejudices a party, the court has the inherent power to recall its order. 6.3 Strong reliance was placed upon the decision of the Supreme Court in the case of State of Punjab v. Davinder Pal Singh Bhullar and others, (2011) 14 SCC 770 , wherein the court held that there is no power of review with the criminal court after the judgment has been rendered. The court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 CrPC 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 is disentitled to entertain a fresh prayer for any 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 order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. The court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. The court further held that if a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality, the order becomes a nullity and the provisions of section 362 CrPC would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. The court, in the context of section 482 of the Code, held that if there had been change in the circumstances of the case, it would be in order for the court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court. It was accordingly urged that this court in exercise of powers under section 482 of the Code has ample powers to recall its order and such recall would not amount to review or alteration of the judgment. 6.4 Reference was made to the decision of a Full Bench of Rajasthan High Court in the case of Habu v. State of Rajasthan, AIR 1987 RAJASTHAN 83, for the proposition that an order of review and an order of recall are distinct. In an application under section 482 of the Code, the High Court has ample powers to recall its judgment as recalling is not a bar under section 362 of the Code. The court referred to the decision of the Madras High Court in the case of Somu Naidu, AIR 1924 Mad 640, where the court recalled its earlier judgment and directed the case to be heard afresh. The court referred to the decision of the Madras High Court in the case of Somu Naidu, AIR 1924 Mad 640, where the court recalled its earlier judgment and directed the case to be heard afresh. The court held that in exceptional circumstances the judgments has to be recalled since it is either void ab initio or is otherwise null and void. It was submitted that, therefore, if an order is void ab-initio, the judgment can be recalled. It was submitted that fraud vitiates everything and in the present case, on account of the fraud played by the respondents (accused), the order passed by this court is rendered void ab-initio and hence, it is permissible for the court to recall the same in exercise of powers under section 482 of the Code. It was urged that review and recall being different, the applicant is not seeking review of the earlier order but is seeking recall of such order on the ground that the same was passed on account of the fraud played by the respondents. It was submitted that the applicant does not seek recall of the order passed by this court on the ground that the same is erroneous or illegal, but on the ground that the same has been obtained fraudulently and hence, is void ab-initio. It was, accordingly, urged that the order passed by this court in Criminal Miscellaneous Application No. 17291 of 2013 filed by the respondents-accused is required to be recalled and the first information report in question is required to be restored. 7. A perusal of the cause title of the application reveals that the same is stated to have been filed under section 482 of the Code of Criminal Procedure, 1972. From the reliefs prayed for in the application as well as the averments made in the memorandum of application, it is evident that what the applicant has prayed for is for recall of the order dated 09.12.2013 passed in Criminal Miscellaneous Application No. 17291 of 2013. The grounds on which the applicant seeks recall of the previous order are set out in paragraphs 6, 7, 8 and 9 of the memorandum of application. The grounds on which the applicant seeks recall of the previous order are set out in paragraphs 6, 7, 8 and 9 of the memorandum of application. The gist thereof is that the applicant had sworn the affidavit to the effect that a settlement had been arrived at and that the first information report may be quashed because the accused persons had agreed to reverse/cancel the sale transaction and revenue entries mutated in their names within a period of 120 days, but even after a period of three years, the land is still in possession of the accused persons and no efforts whatsoever are made by the accused to comply with the assurance given by them by way of affidavit dated 06.12.2013 while quashing the first information report in question. On the contrary, now the accused are threatening and abusing the applicant and asking him to do whatever he can. It is the case of the applicant that the accused have cheated and have played fraud with the applicant and that the affidavit sworn by the accused were only with an intention to save themselves from the police and to avoid their arrest and to get the order from the court in their favour. Thus, the order passed by this court has been obtained by the accused by practising fraud. It is further the case of the applicant that the affidavit of the applicant giving his consent was in English and the same was prepared by the advocate appearing on behalf of the accused and the advocate representing the applicant was also engaged by the accused and the applicant had not engaged any advocate to defend himself as a settlement had already been arrived at between the parties. That the affidavit of the applicant had been prepared at the instance of the accused wherein, the terms and conditions of settlement as well as affirmation of affidavit dated 06.12.2013 was not stated. Thus, the accused persons, by playing smart, have obtained the order of quashing of the first information report in their favour. 8. That the affidavit of the applicant had been prepared at the instance of the accused wherein, the terms and conditions of settlement as well as affirmation of affidavit dated 06.12.2013 was not stated. Thus, the accused persons, by playing smart, have obtained the order of quashing of the first information report in their favour. 8. From the averments made in the application, it is evident that it is the case of the applicant that he had been induced by the respondents to file an affidavit in the application filed by them under section 482 of the Code and that certain affidavits made by them were not placed on the record of the court. It is further the case of the applicant, that certain facts with regard to the said affidavits had not been stated in the affidavit made by the applicant which had been prepared by the learned advocate at the instance of the accused persons. In effect and substance, from the averments made in the memorandum of application, it appears to be the case of the applicant that he had been defrauded by the accused and induced to arrive at a settlement and to file an affidavit agreeing to settle the matter and to terminate the first information report in question. 9. At this juncture, it may be germane to refer to the contents of the affidavit made by the applicant in Criminal Miscellaneous Application No. 17291 of 2013, which read thus: "1. I am respondent No. 2 herein - original complainant in the above mentioned matter, I have filed complaint against the petitioners of above referred Criminal Misc. Application wherein the offence registered before Lodhika Police Station, as I-C.R. No. 52 of 2013 and after filing of the complaint, now dispute is amicably settled between us. I am respondent No. 2 herein - original complainant in the above mentioned matter, I have filed complaint against the petitioners of above referred Criminal Misc. Application wherein the offence registered before Lodhika Police Station, as I-C.R. No. 52 of 2013 and after filing of the complaint, now dispute is amicably settled between us. I say and submit that I am given power of attorney to look after the Plot No. 27 of Land Survey No. 19 situated at village Siyali by Jashwantlal Dhirajlal Raval and happens to be my relative (MASA) and after registration of the FIR, the dispute is sorted out with myself as well as Jashwantlal Dhirajlal Raval even he has no objection if the proceedings as prayed for is terminated and I have filed the complaint as I am having power of attorney of Jashwantlal Dhirajlal Raval and being original complainant I am filing this affidavit in support of the petition filed by the petitioners now there is no ill-will and grievance amongst us, the complaint filed by me was on account of misunderstanding and mis-concept which is sorted out under this set of circumstances, I earnestly urge this Honourable court to terminate the proceedings as prayed for by the petitioners in the interest of justice." 10. In the backdrop of the aforesaid facts, the submissions advanced by the learned advocate for the applicant are required to be considered. 11. Before adverting to the submissions advanced by the learned advocate for the applicant, reference may be made to the decision of the Supreme Court in the case of Abdul Basit alias Raju and others v. Mohd. Abdul Kadir Chaudhary and another, (2014) 10 SCC 754 , wherein the court has held that 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. Section 362 of the Code of Criminal Procedure operates as a 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. Section 362 of the Code of Criminal Procedure operates as a 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. The court referred to its earlier decision in the case of Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169 , wherein, 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, the Supreme Court annulled the judgment and order passed by the High Court on the ground 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. The court 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 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 further observed that in Gian Singh v. State of Punjab, (2012) 10 SCC 303 , the Supreme Court had extended the bar under section 362 as a necessary check on inherent powers of the High Court under section 482. The court 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. The court 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. The court observed that 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. 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. 12. On behalf of the applicant, the learned advocate submitted that a recall of an order is not the same as a review of an order and what the applicant seeks is recall of the order and hence, the above decision would not be applicable to the facts of the present case. 13. At this juncture it may be apposite to note that the Supreme Court in the case of Indian Bank v. Satyam Fibres (India) Pvt. Ltd. (supra) held that the judiciary in India also possesses inherent power, specially under section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. 14. The question that arises for consideration in the backdrop of the aforesaid facts is as to whether a fraud has been committed on the court or a fraud has been played with the applicant. As noted hereinabove, the respondents No. 2 and 3 had filed the above referred application under section 482 of the Code for quashing the first information report lodged by the applicant against them. As noted hereinabove, the respondents No. 2 and 3 had filed the above referred application under section 482 of the Code for quashing the first information report lodged by the applicant against them. In the said proceedings, the parties had arrived at a settlement, pursuant to which the applicant herein filed an affidavit before this court, wherein he has categorically stated that the dispute is settled amicably between them and that he has been given power of attorney to look after the Plot No. 27 of Land bearing Survey No. 19 situated at village Siyali by Jashwantlal Dhirajlal Raval who happens to be his relative. It is also categorically stated therein that the complaint was filed by him on account of misunderstanding and misconception which is sorted out. Now, in a total turn about, the applicant states that he was misled in filing such affidavit which was drafted at the instance of the respondents. It is further the case of the applicant that two affidavits, which are placed on record of this application which were available at the time when the earlier application came to be disposed of, were not placed on the record. In the opinion of this court, the applicant at the relevant time when he made the affidavit dated 06.12.2013 in Criminal Miscellaneous Application No. 17291 of 2013, had consciously made such affidavit. If certain averments with regard to the affidavits filed by the respondents are not mentioned in the said affidavit, the applicant can only blame himself. It was for the applicant to have properly ascertained the facts before filing such an affidavit. This court had not quashed the first information report solely on the basis of any representation made by the respondents No. 2 and 3, but on the basis of the affidavit made by the applicant herein and more particularly, the categorical averments made therein, including the request that the proceedings should be terminated. Evidently therefore, insofar as this court is concerned, no fraud had been played upon the court, inasmuch as, the court had placed reliance upon the affidavit of the applicant herein while quashing the complaint. If it is the case of the applicant that he has been defrauded, then the remedy lies elsewhere and it is for the applicant to file appropriate proceedings in connection with the fraud played by the respondents No. 2 and 3 against him. 15. If it is the case of the applicant that he has been defrauded, then the remedy lies elsewhere and it is for the applicant to file appropriate proceedings in connection with the fraud played by the respondents No. 2 and 3 against him. 15. In the light of the fact that no fraud has been practised upon the court, the question of the order dated 09.12.2013 being ab-initio void does not arise. Under the circumstances, the decisions on which reliance has been placed by the learned advocate for the applicant to press for recalling of the earlier order, would not come to the aid of the applicant, inasmuch as, what has been held in those decisions is that if the order is ab-initio void or without jurisdiction, the same can be recalled. 16. In the opinion of this court, the decision of the Supreme Court in the case of Abdul Basit alias Raju and others v. Mohd. Abdul Kadir Chaudhary (supra) would be squarely applicable to the facts of the present case and the bar under section 362 of the Code would operate. In the exercise of powers under section 482 of the Code, this court cannot recall an earlier order, inasmuch as, the moment the court passed such order, it became functus officio and thereafter, cannot modify or alter the same except to the extent as provided under section 362 of the Code. 17. In the facts of the present case, as discussed hereinabove, no case has been made out for recall of the order inasmuch as, no jurisdictional error has been pointed out so as to render the order being without jurisdiction, nor can the order passed by this court be said to be null and void ab-initio. Under the circumstances, this application is hit by the bar of section 362 of the Code and hence, cannot be entertained. 18. In the result, the application fails and is, accordingly, rejected.