Colonel Sukhjeet Sandhu v. State of Himachal Pradesh
2024-01-05
AJAY MOHAN GOEL
body2024
DigiLaw.ai
JUDGMENT : Ajay Mohan Goel, J. By way of this application, filed under Section 482 of the Code of Criminal Procedure, the applicant has prayed for recalling of order dated 03.04.2019, passed by this Court in Cr.MMO No.135 of 2019, in terms whereof, this court had allowed the petition filed for quashing of FIR 118 of 2018, dated 15.12.2018, registered at Police Station Dalhousie, District Chamba, H.P., under Section 498A and 506 read with Section 34 of the Indian Penal Code, against the non applicants on the ground that the dispute which lead to the registration of the FIR stands amicably resolved between the accused and the complainant. The applicant submits that the conditions of the Settlement Deed dated 12.01.2019, in lieu whereof, she had agreed for the quashing of the FIR, stand violated by the non applicants/petitioners and therefore, the application be allowed and the order passed by this Court quashing the FIR dated 03.04.2019 be recalled. 2. The application is opposed by the nonapplicants/ petitioners, inter alia, on the ground that it is not the nonapplicants but the applicant who flouted the terms of the agreement. 3. Be that as it may, this Court is not dwelling on this issue as to who has violated the terms of settlement intra the parties as first of all this Court has to deal with the legal objection raised by the nonapplicants that this Court is not vested with any power to recall order dated 03.04.2019 passed in Cr.MMO No.135 of 2019, in exercise of the powers conferred upon it under Section 482 of the Criminal Procedure Code. 4. Learned counsel for the nonapplicants has submitted that after the decision of the main petition, this Court has become functuous officio and in terms of the provisions of the Criminal Procedure Code, it is not vested with any power to either review or recall its order except in terms of Section 367 thereof, which Section is not attracted in the facts of this case. 5. Learned counsel has relied upon the judgment of the Hon’ble Supreme Court in State of Madhya Pradesh vs. Man Singh, (2019) 10 Supreme Court Cases 161, and Atul Shukla vs. State of Madhya Pradesh and Another, (2019) 17 Supreme Court Cases 299. 6.
5. Learned counsel has relied upon the judgment of the Hon’ble Supreme Court in State of Madhya Pradesh vs. Man Singh, (2019) 10 Supreme Court Cases 161, and Atul Shukla vs. State of Madhya Pradesh and Another, (2019) 17 Supreme Court Cases 299. 6. On the other hand, learned counsel for the applicant besides placing reliance upon the judgments the Hon’ble Supreme Court in State of Punjab vs. Davinder Pal Singh Bhullar and others, (2011) 14 Supreme Court Cases 770 and argued that this Court can recall its order in terms of the law laid down by the Hon’ble Supreme Court. 7. I have heard learned counsel for the parties on the issue of maintainability of the application. 8. Hon’ble Supreme Court in State of Madhya Pradesh vs. Man Singh (supra) has held that there is no power of review granted to the Courts under the Criminal Procedure Code and as soon as the High Court disposes of the original Revision Petition, it becomes functuous officio and as such it could not have entertained the petition under Section 482 of the Criminal Procedure Code for altering the sentence. 9. By placing reliance upon in its earlier adjudication in State of Karela vs. M.M. Manikantan Nair, (2001) 4 Supreme Court Cases 752 and State Represented by DSP, SB CID, Chennai vs. K.V. Rajendran and Others, (2008) 8 Supreme Court Cases 673, Hon’ble Supreme Court held that neither the High Court has jurisdiction to review its order nor the inherent power under Section 482 of the Criminal Procedure Code can be used by the High Court to reopen or alter an order, disposing of a petition. By placing reliance upon its judgment in Hari Singh Mann vs. Harbhajan Singh Bajwa, 2001 (1) Supreme Court Cases 169, Hon’ble Supreme Court observed that Section 362 of the Criminal Procedure Code specifically provides that no Court after signed its judgment shall alter or review the same except to correct a clerical or arithmetical error. By further referring to its earlier judgment in Smt. Sooraj Devi vs Pyare Lal And Anr. (1981) Supreme Court Cases 500, it held that recall of judgment would amount to alteration of review of judgment which is not permissible under Section 362 of the Criminal Procedure Code and the same cannot be validated by the High Court invoking its inherent powers. 10.
(1981) Supreme Court Cases 500, it held that recall of judgment would amount to alteration of review of judgment which is not permissible under Section 362 of the Criminal Procedure Code and the same cannot be validated by the High Court invoking its inherent powers. 10. Similar view has been taken by the Hon’ble Supreme Court in Atul Shukla vs. State of Madhya Pradesh and Another (supra), in which Hon’ble Supreme Court held that in view of the specific bar which is contained in Section 362 of the Criminal Procedure Code, an application for review or modification of the order could not have been entertained by the High Court. 11. Hon’ble Supreme Court in State of Punjab vs. Davinder Pal Singh Bhullar and others, (2011) 14 Supreme Court Cases 770, has been pleased to hold as under: “44. There is no power of review with the Criminal Court after judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 Cr.P.C. 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. (See: Hari Singh Mann v. Harbhajan Singh Bajwa & Ors., AIR 2001 SC 43 ; and Chhanni v. State of U.P., AIR 2006 SC 3051 ). 45. Moreover, the prohibition contained in Section 362 Cr.P.C. is absolute; after the judgment is signed, 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. (See: Moti Lal v. State of M.P., AIR 1994 SC 1544 ; Hari Singh Mann (supra); and State of Kerala v. M.M. Manikantan Nair, AIR 2001 SC 2145 ). 46.
(See: Moti Lal v. State of M.P., AIR 1994 SC 1544 ; Hari Singh Mann (supra); and State of Kerala v. M.M. Manikantan Nair, AIR 2001 SC 2145 ). 46. 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. In such 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. 47. This Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in Criminal Law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code itself. (Vide: State Represented by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & Ors., AIR 2009 SC 48. In Smt. Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736 , this Court held that the prohibition in Section 362 Cr.P.C. 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 Cr.P.C. and, therefore, the attempt to invoke that power can be of no avail. 49.
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 Cr.P.C. and, therefore, the attempt to invoke that power can be of no avail. 49. 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. IV. INHERENT POWERS UNDER SECTION 482 Cr.P.C. 50. The inherent power under Section 482 Cr.P.C. is intended to prevent the abuse of the process of the Court and to secure the ends of justice. Such power cannot be exercised to do something which is expressly barred under the Cr.P.C. If any consideration of the facts by way of review is not permissible under the Cr.P.C. 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 are 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 Cr.P.C. (See: Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee & Anr, (1990) 2 SCC 437 ). 51. The inherent power of the court under Section 482 Cr.P.C. is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court, amounts to abuse of the process of court.
51. The inherent power of the court under Section 482 Cr.P.C. is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding pending before a court, amounts to abuse of the process of court. Therefore, such powers can be exercised by the High Court in relation to a matter pending before a criminal court or where a power is exercised by the court under the Cr.P.C. Inherent powers cannot be exercised assuming that the statute conferred an unfettered and arbitrary jurisdiction, nor can the High Court act at its whim or caprice. The statutory power has to be exercised sparingly with circumspection and in the rarest of rare cases. (Vide: Kurukshetra University & Anr. v. State of Haryana & Anr., AIR 1977 SC 2229 ; and State of W.B. & Ors. v. Sujit Kumar Rana, (2004) 4 SCC 129 ). 52. The power under Section 482 Cr.P.C. cannot be resorted to if there is a specific provision in the Cr.P.C. for the redressal of the grievance of the aggrieved party or where alternative remedy is available. Such powers cannot be exercised as against the express bar of the law and engrafted in any other provision of the Cr.P.C. Such powers can be exercised to secure the ends of justice and to prevent the abuse of the process of court. However, such expressions do not confer unlimited/unfettered jurisdiction on the High Court as the "ends of justice" and "abuse of the process of the court" have to be dealt with in accordance with law including the procedural law and not otherwise. Such powers can be exercised ex debito justitiae to do real and substantial justice as the courts have been conferred such inherent jurisdiction, in absence of any express provision, as inherent in their constitution, or such powers as are necessary to do the right and to undo a wrong in course of administration of justice as provided in the legal maxim "quando lex aliquid alique, concedit, conceditur et id sine quo res ipsa esse non potest".
However, the High Court has not been given nor does it possess any inherent power to make any order, which in the opinion of the court, could be in the interest of justice as the statutory provision is not intended to bypass the procedure prescribed.” 12. Coming back to the facts of this case, herein on the request jointly made by the accused and the complainant, the petition filed under Section 482 of the Criminal Procedure Code for quashing of the FIR was allowed vide order dated 03.04.2019. The order was passed by recording that the matter stood amicably settled/ resolved between the complainant and the accused. The application seeking recall thereof was filed on 29.09.2021, i.e. after about two and half years after the petition was disposed of by this Court. Incidentally, the prayer in the application is for modification/ recalling of the order passed by this Court on the ground that the conditions of the settlement have been flouted by the accused. 13. This Court is of the considered view that in light of the law declared by the Hon’ble Supreme Court referred to hereinabove, this Court has no power to recall its order by reviewing the same. In fact, in this regard the judgments passed by Hon’ble Supreme Court referred to hereinabove are unison that there is no power of review with the Criminal Court after the judgment has been rendered. Hon’ble Supreme Court says that if a judgment has been pronounced without jurisdiction or in violation of the principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected, or where an order was obtained by abuse of the process of the Court which would really amount to its being without jurisdiction, inherent power can be exercised to recall such order, for the reason that in such eventuality the order becomes a nullity and the provisions of Section 362 of the Criminal Procedure Code would not operate. 14. Now in the present case, the order, recall of which is being sought has neither pronounced without jurisdiction or in violation of the principles of natural justice. The same was pronounced on the basis of a joint request made before the Court by the complainant and the accused. Thus, it can also not be said that the order was obtained by abuse of the process etc. 15.
The same was pronounced on the basis of a joint request made before the Court by the complainant and the accused. Thus, it can also not be said that the order was obtained by abuse of the process etc. 15. Simply because, according to one party, the terms of settlement arrived at between them have not been adhered to by the other party, the same cannot be a ground, calling upon this Court, to recall its order by exercising its inherent jurisdiction under Section 482 of the Criminal Procedure Code, more so when the settlement arrived at between the parties was neither made part of the Judicial Order nor the settlement stood arrived at between the parties in the course of the proceedings. 16. Accordingly, in view of the reasoning assigned hereinabove, as this Court is of the considered view that this Court cannot recall or modify its order in exercise of the powers conferred upon it under Section 482 of the Criminal Procedure Code as after the pronouncement of the main order and disposal of the petition, this Court has become functuous officio, the application is dismissed.