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2017 DIGILAW 1436 (ORI)

Dolamani Bariha v. Bisakha Bariha

2017-12-11

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. Heard Mr. B.S. Dasparida, learned counsel for the petitioner. None appears on behalf of the opposite party. The petitioner Dolamani Bariha has filed this application under section 482 of Cr.P.C. challenging the impugned order dated 27.04.2005 passed by the learned Addl. Sessions Judge, Bolangir in Criminal Misc. Case No.17 of 1998 in dismissing the misc. case filed by the petitioner under section 362 of Cr.P.C. for correction of the judgment and order dated 01.05.1996 passed by the said Court in Criminal Revision No.12 of 1995. The factual scenario of the case is that the petitioner is the husband of the opposite party Bisakha Bariha. The opposite party filed a petition under section 125 of Cr.P.C. which was registered as Misc. Case No.33 of 1992 in the Court of learned S.D.J.M., Patnagarh claiming monthly maintenance against the petitioner. It is stated in the petition that she earlier instituted a case under section 125 of Cr.P.C against the petitioner which was registered as C.M.C. No.24 of 1978 in the Court of learned S.D.J.M., Patnagarh which was disposed on the terms of compromise between the parties on 13.01.1983. Subsequently, in the changed circumstances, the opposite party filed the aforesaid Misc. Case No.33 of 1992 claiming monthly maintenance @ Rs.400/-and the learned S.D.J.M., Patnagarh allowed the Misc. Case vide judgment and order dated 11.01.1995 and directed the petitioner to pay a sum of Rs.500/-per month to the opposite party towards her maintenance with effect from the date of filing of the Misc. Case i.e. from 15.09.1992. The order was challenged by the petitioner before the Court of Session and it was registered as Criminal Revision No.12 of 1995 in the Court of learned Sessions Judge, Bolangir and was transferred to the learned Addl. Sessions Judge for disposal. The learned Addl. Sessions Judge, Bolangir in the operative portion of the judgment and order dated 01.05.1996 held as follows:- “4. In view of my finding that the petition of C.M.C.33/92 is barred by res judicata and for the same reason, I do not want to discuss other grounds though those are having merits, because the learned lower Court had granted excess allowance to the wife than the allowance claimed by her. She prayed to get maintenance allowance at the rate of Rs.400/-per month but the learned S.D.J.M. has awarded Rs.500/-as monthly allowance. She prayed to get maintenance allowance at the rate of Rs.400/-per month but the learned S.D.J.M. has awarded Rs.500/-as monthly allowance. Besides that the learned S.D.J.M. has not considered the assets given to the wife and the probable income out of the same to compute the balance. Learned counsel for the petitioner is therefore, correct in his submission that the order of the learned S.D.J.M., was illegal and incorrect. 5. In the result, the revision is dismissed on merit and without cost.” It is contended by the learned counsel for the petitioner that in view of the finding arrived at paragraph 4, though the revision petition should have been allowed on merit, the learned revisional Court mentioned in paragraph 5, the revision to be dismissed on merit and for that reason the petitioner filed Criminal Misc. Case No.17 of 1998 under section 362 of Cr.P.C. on the ground that the word ‘dismissed’ in para 5 of the judgment passed in Criminal Revision No.12 of 1995 is nothing but a clerical error and therefore, it should be corrected as ‘allowed’ inasmuch as there is no bar under section 362 of Cr.P.C. to make such correction but the learned Addl. Sessions Judge, Bolangir vide impugned order dated 27.04.2005 held that a criminal Court is not authorized to review or alter its own judgment or order and accordingly, dismissed the Misc. Case on the ground that it is not at all maintainable. It is further contended that the learned revisional Court has committed illegality in not correcting the clerical error. Section 362 of Cr.P.C. reads as follows :- “Section 362. Court not to alter 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.” The Hon’ble Supreme Court in case of Smt. Sooraj Devi Vrs. Pyare Lal and another reported in A.I.R. 1981 SC 736 has explained the meaning of phrase ‘a clerical or arithmetical error’ and it has been held that it is an error which is occasioned by an accidental slip or omission of the Court. It represents that which the Court never intended to say. Pyare Lal and another reported in A.I.R. 1981 SC 736 has explained the meaning of phrase ‘a clerical or arithmetical error’ and it has been held that it is an error which is occasioned by an accidental slip or omission of the Court. It represents that which the Court never intended to say. It is an error apparent on the face of the record and does not depend for its discovery on argument or disputation. An arithmetical error is a mistake of calculation and a clerical error is a mistake in writing or typing. Therefore, in view of section 362 of Cr.P.C. only clerical and arithmetical error can be corrected and an order passed after hearing the parties cannot be a recalled under section 362 of Cr.P.C. Section 362 of the Code of Criminal Procedure prohibits reopening of a final order except in the cases of clerical or arithmetical errors. In case of State of Punjab Vrs. Davinder Pal Singh Bhullar and Ors. reported in (2012) 51 Orissa Criminal Reports (SC) 220, it is held as follows:- “30. Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the Court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law.” The High Court under section 482 Code of Criminal Procedure is crowned with a statutory power to exercise control over the administration of justice in criminal proceedings within its territorial jurisdiction. The High Court can intervene where the abuse of the process of any Court is located and the same can be rectified by invoking such power. Such power can be exercised to do the real and substantial justice, to do the right and to undo a wrong in course of administration of justice. It is neither an unfettered and arbitrary jurisdiction nor the High Court will act at its whim or caprice. On going through the judgment passed by the learned Addl. Such power can be exercised to do the real and substantial justice, to do the right and to undo a wrong in course of administration of justice. It is neither an unfettered and arbitrary jurisdiction nor the High Court will act at its whim or caprice. On going through the judgment passed by the learned Addl. Sessions Judge, Bolangir in Criminal Revision No.12 of 1995, it is apparent that the learned revisional Court held the case to be in favour of the petitioner in paragraph 4 after giving specific reasons and even gone to the extent of holding that the learned counsel for the petitioner is correct in his submission that the order of the learned S.D.J.M., Patnagarh was illegal and incorrect. In view of such observation, it should have been mentioned in paragraph 5 that the revision is ‘allowed’ instead of ‘dismissed’. I am view that a glaring clerical error has been cropped up in paragraph 5 by mentioning the word ‘dismissed’ instead of ‘allowed’ which the revisional Court never intended to say so. It is an error apparent on the face of the record. Therefore, I find sufficient force in the contention of learned counsel for the petitioner and set aside the impugned order dated 27.04.2005 passed by the learned Addl. Sessions Judge, Bolangir in Criminal Misc. Case No.17 of 1998 and direct that in paragraph 5 of the judgment and order dated 01.05.1996 of the learned Addl. Sessions Judge, Bolangir passed in Criminal Revision No.12 of 1995, the word ‘dismissed’ should be read as ‘allowed’. With the aforesaid observation, the CRLMC is disposed of.