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2021 DIGILAW 1126 (KER)

Babu @ Achayan v. Thankachan Aged

2021-12-08

SOPHY THOMAS

body2021
ORDER : 1. This petition has been filed by the learned counsel for the petitioner in the above Crl. M.C. for recalling the order dated 10.11.2021. 2. The Crl. M.C. was filed by the sole accused in Crime No. 555 of 2014 of Pudunagaram Police Station to quash the final report pending before the Judicial First Class Magistrate, Chittur. As per order dated 10.11.2021, the Crl. M.C. was allowed quashing the final report in C.C No. 1852 of 2014 of JFCM, Chittur, under Section 482 Cr.P.C. and the petitioner/accused was set at liberty. 3. Thereafter, on 15.11.2021, above petition has been filed to recall the order dated 10.11.2021, stating that after pronouncing the order, when the counsel contacted his client, he came to know that the petitioner/accused was already acquitted by JFCM, Chittur on 28.09.2020. Learned counsel for the petitioner is tendering his apology for the inadvertent mistake committed by him and he is seeking recall of the order as the matter has become infructuous. 4. In order to verify the facts, a report was called for from JFCM, Chittur, and a report was placed before this Court. The report dated 06.12.2021 says that the stay order from the High Court was communicated on 05.09.2016. Subsequently, on 20.07.2019, learned counsel for the accused appearing before the Magistrate Court submitted that the stay was not extended by the High Court, and at present, there was no stay, and a statement also filed before that court, to that effect. So, the Magistrate proceeded with the case, examined the witnesses and finally acquitted the accused on 28.09.2020. The Magistrate has requested to condone her mistake, as she disposed the case, forgetting pendency of Crl. M.C. before the High Court. 5. As per the decision Asian Resurfacing of Road Agency Pvt. Ltd. and Another vs. Central Bureau of Investigation, Criminal Appeal Nos. 1375-1376/2013 dated 28.03.2018, the Apex Court had given directions to the effect that, in all pending matters before the High Courts or other courts relating to PC Act or all other civil or criminal cases, where stay of proceedings in a pending trial is operating, stay will automatically lapse after six months from 28.03.2018 unless extended by a speaking order. It was further directed that the trial courts may, on expiry of the above period, resume the proceedings without waiting for any other intimation unless express order extending the stay is produced. It was further directed that the trial courts may, on expiry of the above period, resume the proceedings without waiting for any other intimation unless express order extending the stay is produced. 6. On going through the proceedings sheet in Crl. M.C. No. 4737 of 2016, it could be seen that the interim order of stay was extended by four months on 17.10.2018 and thereafter, no extension of stay was prayed for, and the stay has not been extended. So, the Magistrate may be justified in proceeding with the trial in C.C No. 1852 of 2014 of JFCM, Chittur. As per judgment dated 28.09.2020, the Magistrate acquitted the accused. That matter was not intimated to this Court by learned counsel for the petitioner in Crl. M.C. and he argued the case and it was allowed on 10.11.2021. According to him, only after pronouncing the order, he came to know that the accused was already acquitted by the Magistrate, and now he wants to recall the order in Crl. M.C. 7. Learned Public Prosecutor opposed this petition, stating that, once the judgment has been signed by the Judge, the court has become functus officio, and under Section 362 Cr.P.C. 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. 8. It is true that the court becomes functus officio, the moment order for disposing of a case is signed, and such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. Even the High Court, in exercise of its inherent power under Section 482 Cr.P.C. has no authority or jurisdiction to alter/review the same. Section 362 Cr.P.C. expressly bars any such review/alteration of the order finally disposing the case. Even the High Court, in exercise of its inherent power under Section 482 Cr.P.C. has no authority or jurisdiction to alter/review the same. Section 362 Cr.P.C. expressly bars any such review/alteration of the order finally disposing the case. But, 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 Cr.P.C. would not operate [relied on State of Punjab vs. Davinder Pal Singh Bhullar and Others, AIR 2012 SC 364 ]. 9. In Pushpangathan vs. State of Kerala and Another, 2015 (3) KHC 259 , a Single Bench of this Court held that alteration and/or review of a judgment presupposes the continuance of the order under challenge and the effectuation of the same with some changes in it. However, when an order is recalled, the whole thing is abrogated and the parties are relegated to the original position. So, an order can be recalled if sufficient grounds exist. In a review petition, the court considers on merit whether there is an error apparent on the face of record. But, in a recall petition, the court does not go into the merit but simply recalls an order. 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. 10. In the case in hand, the Magistrate Court tried the case in the absence of extension of stay order from the High Court and acquitted the accused as early as on 28.09.2020. Learned counsel for the petitioner in the Crl. M.C. argued the case without noticing the factum of acquittal of the accused by the trial court. Since the accused was already acquitted after trial, there was no scope for quashing the final report in C.C. No. 1852 of 2014. The order in Crl. M.C. was obtained by abuse of the process of court, which would really amount to its being without jurisdiction. Since the accused was already acquitted after trial, there was no scope for quashing the final report in C.C. No. 1852 of 2014. The order in Crl. M.C. was obtained by abuse of the process of court, which would really amount to its being without jurisdiction. So, the inherent power can be exercised by the High Court to recall that order as it has become a nullity in the eye of law. Hence the order in Crl. M.C. No. 4737 of 2016 dated 10.11.2021 is hereby recalled. 11. The Registrar (District Judiciary) shall direct the judicial officers in the State that, whenever, a case is proceeded with, for non-extension of stay, invoking the direction of the Hon'ble Supreme Court in Asian Resurfacing of Road Agency Pvt. Ltd. case (supra) and is disposed of accordingly, let that matter be intimated to the court which had ordered the stay and where the proceedings are still pending, in order to avoid conflicting decisions. 12. Registry of this Court is directed to verify the status of the proceedings under challenge in a Crl. M.C. before putting it in the final hearing list, and the status report also to be placed before the Bench along with the file taken up for final hearing.