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Allahabad High Court · body

2019 DIGILAW 816 (ALL)

Farhana v. State of U. P.

2019-04-02

SANJAY KUMAR SINGH

body2019
JUDGMENT : Sanjay Kumar Singh, J. The Criminal Misc. Recall/Restoration Application No. 52448 of 2016 dated 15.02.2016 has been filed by the applicant-revisionist with a prayer to recall the order dated 09.02.2016 passed by the Coordinate Bench of this Court, whereby the present revision has been dismissed on merits. The order dated 09.02.2016 is reproduced herein below:-. "1. Called in revised. None appeared on behalf of the revisionist to press this revision. However, learned AGA is present. In the circumstances, I myself have perused the record. 2. This criminal revision under Section 401 read with Section 397 Cr.P.C. has been filed aggrieved by the judgment and order dated 21.08.2012 passed by the Chief Judicial Magistrate, Allahabad, in Complaint Case No.3457 of 2012 arising out of Case Crime No. 260 of 2010, under Sections 376, 452, 346, 347, 348, 323, 504, 506 IPC, P.S.-Civil Line, District Allahabad, whereby the complaint case has been rejected under Section 203 Cr.P.C. 3. From perusal of the impugned order, it appears that the revisionist moved an application under Section 156(3) Cr.P.C. which was treated as complaint. The learned Magistrate after recording the statement of complainant under Section 200 and witnesses under Section 202 Cr.P.C. vide order dated 21.08.2012 dismissed the complaint under Section 203 Cr.P.C. 4. In view of above facts from the averment made in application 156(3) Cr.P.C. prima facie no cognizable offence is made out and learned Magistrate has rightly appreciated the fact of the case rejecting the application by the impugned order. The revision is devoid of any merit and it is, accordingly, is dismissed. 5. Interim order, if any, stands vacated. 6. Certify this judgment to the Lower Court immediately." 2. The substratum of submissions advance by the learned counsel for the applicant-revisionist is that on 09.02.2016, he was busy in Court No. 55 and when he reached Court No.9, he came to know that in Court No. 9, transferred cases of Court No. 43 are being taken up and cases of Court No. 9 have been transferred to Court No. 28 and thereupon he reached Court No. 28 and got an information that the criminal revision, which was listed at serial No. 8, has been dismissed and, therefore this recall application has been moved. On the strength of aforesaid fact, last plank of submission is that order dated 09.02.2016 is liable to be recalled. 3. On the strength of aforesaid fact, last plank of submission is that order dated 09.02.2016 is liable to be recalled. 3. Per contra, learned Additional Government Advocate has vehemently opposed by contending that the criminal revision has been dismissed on merits, therefore, the order dated 09.02.2016 is not liable to be recalled. 4. After having heard learned counsel for the parties, I find that it is true that on 09.02.2016 no one appeared on behalf of revisionist to press the revision, therefore the Court himself gone through the impugned order and perusing the record of the case did not find manifest error or otherwise illegality so as to warrant interference, hence dismissed the case by order dated 09.02.2016 on merits. 5. Now under the facts and circumstances of this case, issue for consideration before this Court is whether relief as claimed by the revisionist is barred by section 362 Cr.P.C. Before dealing into the issue, it is relevant to mention Section 362 Cr.P.C., which reads as under:- "362. Court not to after 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." 6. Here, it would also be useful to quote some decisions of the Apex Court on the scope and object of section 362 Cr.P.C., which are as follows:- (i) In the case of Sunita Jain vs Pawan Kumar Jain and others, (2008) 2 SCC 705 , the Apex Court held as under: "31.The section makes it clear that a Court cannot alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error. The scheme of the Code, in our judgment, is clear that as a general rule, as soon as the judgment is pronounced or order is made by a Court, it becomes functus officio (ceases to have control over the case) and has no power to review, override, alter or interfere with it. 32. No doubt, the section starts with the words "save as otherwise provided by this Code". Thus, if the Code provides for alteration, such power can be exercised. For instance, sub-section (2) of Section 127. 32. No doubt, the section starts with the words "save as otherwise provided by this Code". Thus, if the Code provides for alteration, such power can be exercised. For instance, sub-section (2) of Section 127. But in absence of express power, alteration or modification of judgment or order is not permissible. 33. It is also well settled that power of review is not an inherent power and must be conferred on a Court by a specific or express provision to that effect." (ii) Apex Court in the case of Patel Narshi Thakershi & Ors. v. Shri Pradyumansinghji Arjunsinghji, (1971) 3 SCC 844 has held that no power of review has been conferred by the Code on a Criminal Court and it cannot review an order passed or judgment pronounced. (iii) In Hari Singh Mann v. Harbhajan Singh Bajwa & Ors., (2001) 1 SCC 169 , Apex Court held that a High Court has no jurisdiction to alter or review its own judgment or order except to the extent of correcting any clerical or arithmetical error. It deprecated the practice of filing Criminal Miscellaneous Petitions after disposal of main matters and issuance of fresh directions in such petitions. The Court said; "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. 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." (iv) The Apex Court in the case of Sooraj Devi vs. Pyare Lal and another,1981 2 SCC 500, has held that in view of provisions contained under Section 362 Cr.P.C, the inherent jurisdiction under section 482 Cr.P.C. also cannot be invoked to override the bar of review under section 362 Cr.P.C. (v) The Apex Court in the case of Master Construction Co. (P) Ltd. v. State of Orissa and Another., (1966) AIR SC 1047, has held that a clerical or arithmetical error is an error 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. (vi) The Apex Court in the case of Sankatha Singh v. State of U.P., (1962) AIR SC 1208, held that now it is well settled that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. It is true that the prohibition in section 362 against the Court altering or reviewing its judgment is subject to what is "otherwise provided by this Code or by any other law for the time being in force". Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. 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. (vii) In the case of Mohammed Zakir vs Shabana and others, (2018) 15 SCC 316 , the Supreme Court has held as under: "The High Court should not have exercised the power under Section 362 Cr.P.C. for a correction on merits. (vii) In the case of Mohammed Zakir vs Shabana and others, (2018) 15 SCC 316 , the Supreme Court has held as under: "The High Court should not have exercised the power under Section 362 Cr.P.C. for a correction on merits. However patently erroneous the earlier order be, it can only be corrected in the process known to law and not under Section 362 Cr.P.C. The whole purpose of Section 362 Cr.P.C. is only to correct a clerical or arithmetical error. What the High Court sought to do in the impugned order is not to correct a clerical or arithmetical error; it sought to re- hear the matter on merits, since, according to the learned Judge, the earlier order was patently erroneous. That is impermissible under law." 7. Keeping in mind the dictum in the aforesaid decisions, I find no difficulty in concluding that the stand taken by the applicant-revisionist for recalling the aforesaid order, is devoid of merit and is not liable to be allowed. In the fulcrum of section 362 Cr.P.C. quoted above, it is well settled 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. The Code of Criminal Procedure confers absolute sanctity to the judgment once it is pronounced. It does not conceive of any kind of alteration. 8. In the present case, there is no clerical or arithmetical error also in the order dated 9.2.2016. The revision has been dismissed on merits, hence the order dated 09.02.2016 is not liable to be recalled. The relief as claimed by the revisionist is barred by the provision of section 362 Cr.P.C. 9. The Recall/Restoration Application No. 52448 of 2016 dated 15.2.2016 lacks merit and is accordingly rejected.