Research › Search › Judgment

J&K High Court · body

2020 DIGILAW 46 (JK)

Lal Khan v. State Of J&K

2020-02-05

SANJAY KUMAR GUPTA

body2020
JUDGMENT APPCR No. 73/2018 1. The instant application has been filed by the applicant seeking recalling/ setting aside of order dated 13.09.2017, passed in 561-A No. 157/2014. 2. In the application, it has been stated that the aforesaid petition was disposed of by this Honble Court on 13.09.2017. From the perusal of the said judgment it is stated that the aforesaid petition has been finally decided in absence of counsel for the petitioner. The petitioner had earlier engaged a counsel, who conducted the case on his behalf, who being busy in other Court could not appear in the case when the same was called for hearing. The petitioner had no knowledge with regard to listing of the case. The absence of the counsel as well as the petitioner was neither intentional nor deliberate. 3. It is stated that in absence of the counsel for the petitioner, the Honble Court instead of consigning the same to record had decided the same on merits. Because of the absence of the counsel for the petitioner the Honble Court was not assisted on behalf of petitioner and thus important aspect of the matter could not be properly highlighted by the petitioner for adjudication. 4. It is further stated that the impugned FIR is a weapon of harassment. There is a land dispute regarding which appeal has been pending before the Revenue Authorities. It is stated that the ingredients of section/offences contained in FIR are not made out. Taking the FIR on its face value, the same do not constitute the offences alleged. Keeping the FIR alive and making investigation therein shall tantamount to abuse and misuse of the process of law. In absence of the learned counsel for the petitioner aforesaid legal submissions could not be put forth before the Honble Court and order passed by the Honble Court in the peculiar facts deserves to be recalled/ withdrawn exercising inherent powers and consequently the petition along with MPs containing interim direction may kindly be revived and reheard on merits in the interest of justice, which if not granted, the petitioners shall suffer an irreparable loss. 5. Heard learned counsel for the official respondent and perused documents annexed therein. 6. 5. Heard learned counsel for the official respondent and perused documents annexed therein. 6. From the perusal of impugned judgment, it is evident that the applicant herein filed 561-A No. 157/2014, seeking quashment of FIR No. 34/2014 dated 27.04.2014 under section 420, 467, 468 & 471 RPC registered at Police Station Darhal, Rajouri against him. In the aforesaid petition, the applicant further prayed that a Special Investigating Team (SIT) be constituted for conducting the investigation in FIR No. 33/2014 dated 26.04.2014 under sections 379, 427, 447, 458, 188 RPC . This Court, vide order dated 13.09.2017 declined the quashment of FIR No. 34/2014 and also declined to constitute SIT in the matter. 7. In 2008 (8) SCC 673 case titled State Rep. by DSP, SB CID, Chennai Vs. K.V. Rajendran & ors., it has been held as under:- '12. We have heard the learned counsel for the parties and examined the impugned order as well as the final order dated 1st of March, 2001 rejecting the prayer of the respondents to hand over the investigation to the CBI authorities and other materials on record. 13. In our view, the learned Judge of the Madras High Court had fallen in error in passing the impugned order. The following questions need to be considered by us : (I) Whether the High Court had become functus officio with the disposal of the criminal petition by the judgment and order dated 01st of March, 2001? (II) Whether the High Court, in exercise of its inherent power under Section 482 of the Code can modify its earlier judgment and order? 14. Before we take up the questions for our decision, we may look into the law on the questions posed before us. 15. In the case of Hari Singh Mannn vs. Harbhajan Singh Bajwa & others (2001) 1 SCC 169 , this Court held: "There is no provision in the Code Of Criminal Procedure authorizing the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. Section 362 CrPC has extended the bar of review not only to judgment but also to the final orders other than the judgment. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. Section 362 CrPC has extended the bar of review not only to judgment but also to the final orders other than the judgment. Section 362 is based on an acknowledged principal of law that once a matter is finally disposed of by a court, the said court in the absence of statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for the same relief unless the former order 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." 16. Yet, in the case of Simrikha vs. Dolley Mukherjee and Chhabi Mukherjee & Anr, (1990) 2 SCC 437 , this court held: "The inherent power under Section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something, which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High 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. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362." 17. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362." 17. Keeping the principles, as laid down by the aforesaid decisions of this Court in mind, let us now look to Section 362 of the Code, which expressly provides that no Court which has signed its judgment and final order disposing of a case, shall alter or review the same except to correct clerical or arithmetical error saved as otherwise provided by the Court. At this stage, the exercise of power underSection 482 of the Code may be looked into. 18. 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 statutes. 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. 19. In the case of Smt Sooraj Devi vs. Pyare Lal & Anr, AIR 1981 SC 736 , this Court held "that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code." 20. Similar view was expressed in the case of Sankatha Singh vs. State of U.P. [1962] Supp 2 SCR 817 , in which it was held: "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." 21. 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." 21. As noted herein earlier, Section 362 of the Code prohibits reopening of a final order except in the cases of clerical or arithmetical errors. Such being the position and in view of the expressed prohibition in the Code itself in the form of Section 362, exercise of power under Section 482 of the Code cannot be exercised to reopen or alter an order disposing of a petition decided on merits. 22. In the present case, we find that the High Court, in the original final order, disposing of the petition under Section 482 of the Code has specifically given reasons for rejecting the prayer for handing over the investigation to the CBI authorities. 23. That apart, after the final order was passed rejecting the prayer of the respondent to hand over the investigation to the CBI authorities, by which, the criminal petition filed under Section 482 was practically rejected, it was not open to the High Court to pass a fresh order in the disposed of petition or even in the pending petition of the DSP (SB CID) Nagapattinam, directing investigation to be made by the CBI authorities. 24. As noted herein earlier, Section 362 of the Code prohibits a Court from making alternation in a judgment after the final order or Judgment was signed by the Court disposing of the case finally except to correct clerical or arithmetical errors. In our view, therefore, Section 362 of the Code cannot apply in the facts and circumstances of the present case. There was no clerical or arithmetical error in the order.' 8. In view of settled law as discussed above, it is held that the instant petition CRMC No.157/2014 cannot be heard again and court cannot pass an order otherwise. The Court is debarred to make alteration in a judgment after it has been finally disposed of except to correct clerical or arithmetical error. In view of the observations made above, this case is devoid of any merit, hence dismissed.