Skip to content


Wahongdam Gulap Singh Vs. Moirangthem NIn Gol Konsam Ongbi Radhadevi and anr. - Court Judgment

LegalCrystal Citation
Subject;Criminal
CourtGuwahati High Court
Decided On
Judge
AppellantWahongdam Gulap Singh
RespondentMoirangthem NIn Gol Konsam Ongbi Radhadevi and anr.
Excerpt:
.....as a result of the failure on the part of a judge to exercise his discretion or judgment in pursuance of a determination, such omission cannot be called a clerical error......structures.the petitioner raised the objection before the magistrate that this was not a clerical error and hence the previous order should not be amended. but the learned magistrate overruled the objection of the petitioner and said that in the original order passed by him, the petitioner has been directed not to cause any interference in the exercise of right of user by the first respondent, that due to want of an operative portion of the judgment, the petitioner has not removed the structure and obstructions caused by him and that the court is empowered to pass a further order to make its previous order an effective one, as the right 6 the first party is declared under section 147 criminal procedure code, he therefore directed the petitioner by his fresh order passed on.....
Judgment:

T.N.R. Tirumalapad, J.

1. This revision petition is filed against the orders of the S. D. M., Bishenpur, Under Section 147, Criminal Procedure Code dated 21-6-1962 and 24-8-1962, directing the petitioner not to interfere with the exercise of the right of user by the 1st respondent over a disputed path and further to remove the posts and shed raised by the petitioner in the disputed path. The Magistrate held in his first order that the said disputed path-way had been in existence for a very long time and that the petitioner had no right to put up posts in order to obstruct the use of the path by the first respondent and further that he put up the shed after the petition Under Section 147 Criminal Procedure Code was filed by the first respondent.

In his original order dated 21-6-1962, the Magistrate merely directed the petitioner not to interfere with the use of the path-way by the first respondent, but he did not pass any order directing the removal of the obstructions, namely, the posts and the shed. On 4-8-1962, the first respondent filed an application before the Magistrate Under Section 369 Criminal Procedure Code stating that due to a clerical mistake or accidental omission the Magistrate has omitted to order the removal of the obstructions to the path and thus to enforce the prohibitory order effectively and that therefore an order may be passed for the removal of the obstructing structures.

The petitioner raised the objection before the Magistrate that this was not a clerical error and hence the previous order should not be amended. But the learned Magistrate overruled the objection of the petitioner and said that in the original order passed by him, the petitioner has been directed not to cause any interference in the exercise of right of user by the first respondent, that due to want of an operative portion of the judgment, the petitioner has not removed the structure and obstructions caused by him and that the Court is empowered to pass a further order to make its previous order an effective one, as the right 6 the first party is declared Under Section 147 Criminal Procedure Code, He therefore directed the petitioner by his fresh order passed on 24-8-1962 to remove the posts and shed raised by him immediately within a week from that date.

2. The petitioner went up in revision to the Sessions Judge. But the Sessions Judge dismissed the revision. ' The Sessions Judge was of the view that the easement right claimed by the first respondent was in existence and further that the petitioner had caused obstructions by fixing posts and by erecting shed during the pendency of the proceedings. On the question of the subsequent order passed on 24-8-1962, the Sessions Judge stated that it was a case of clerical error in the original order in omitting to order the removal of the shed and the posts and that therefore the learned Magistrate was right in directing the removal of the obstructions. He, therefore, dismissed the revision. Now the petitioner has come up to this Court.

3. The first point argued by the petitioner in revision was that the findings of the lower Courts regarding the 1st respondent's right in the disputed path-way were perverse and not based on evidence and that the said finding should be set aside in revision. I have perused the order of the Magistrate and the Sessions Judge and 1 was also taken through the oral evidence and the documents in the case.

I find that the order of the Magistrate even though it is a summary proceeding is an elaborate and well-considered order in which he has dealt with the cases of both sides and dealt with the oral evidence and the documents in detail. The said finding of the Magistrate has also been rip-held by the Sessions Judge and the Sessions Judge has also dealt with all the evidence in the case. Under shin circumstances in a summary proceeding Under Section 147, Cri. P. C, the Court will not interfere on the question of fact. After all, the order is subject to the decision by a Civil Court and the petitioner could very well go to a Civil Court for a final adjudication' of the question and hence I shall not go into this question of fact in revision.

4. The more difficult question raised In this revision is the question whether the Magistrate was right in passing his second order dated 24-8-1962. directing the removal of the obstructions. In this connection, I may say that after the dismissal of the revision petition by the Sessions Judge and on the failure of the petitioner to remove the obstructions the Magistrate on 7-11-1962 directed the Police to remove the obstructions and that accordingly the Police removed them on 14-11. 1962, even though the petitioner had filed the revision In this Court on 9-11-1962.

I find that the petitioner got the copy of the order of the Sessions Judge only no 8-11-1962 and immediately he had come up to this Court. I also find that the Magistrate's order directing the Police to remove the obstructions was passed without notice to the petitioner. This should never have been done by the Magistrate. The order dated 24-8-1962, was a direction to the petitioner to remove the obstructions within a week and there was no direction in the said order that the Police will remove the obstructions it the petitioner did not remove them within a week.

Thus, if the Magistrate wished to direct the Police to remove the obstructions, he should not have done so without notice to the petitioner and behind his back. If notice had been given to the petitioner, he would have had an opportunity to point out that the Magistrate cannot pass a third order directing removal by the police. He could also have pointed out that he had filed a revision petition in this Court and that until that was disposed of, no further orders should be passed. It seems to me that there has been undue haste on the part of this Magistrate to issue such, an order. After all, the Magistrate's order regarding the easement right was subject to. the result of any suit which the petitioner may file and so such undue haste should not have been displayed by the Magistrate.

5. Now the question is whether his subsequent order dated 24-8-1962, directing the removal of the obstructions was only the correction of a clerical error, A further question will also now arise as to whether his order dated 7-11-1962 ; directing removal by the police was an order which the Magistrate had the jurisdiction to pass. I shall 1 deal with the order dated 24-8-1962 first. That order itself does not show that it has been passed as the correction of a clerical error in the original order. If it was the correction of a clerical error, the said order should have been by way of amendment of the original order by adding therein that the petitioner should remove the obstructions to the path-way. But it was no an order of amendment, but a fresh order passed by the Magistrate and the reason given by the Magistrate also shows that his intention was not to correct the original order, but to pass a fresh order on the ground that the Court was empowered to pass such an order to make its original order effective. This the Magistrate had no power to do Under Section 369, Cri. P. C.

6. Section 369 spates that no Court shall alter or review its judgment when it has signed its judgment except to correct a clerical error. It is well-settled that 'judgment' will include also a final order. This means that when once the Court has signed its judgment, the Court becomes functus officio except for the purpose of correcting clerical errors. Hence, a Court cannot pass a fresh order as has been done by this Magistrate on the plea that the Court is empowered to pass fresh orders to make its original orders effective. The learned Sessions Judge clearly lost sight o the fact that the Magistrate did not have the power to pass a fresh order for the purpose of making its original order effective under the guise of Section 369, Cri. P. C. If the first respondent found that the Magistrate had passed an ineffective order which required correction, what she should have done was to go in revision to higher Courts and not to apply to the Magistrate for reviewing or correcting his original order. The learned Sessions Judge should have really referred this matter to this Court instead of dismissing the revision petition as there was a clear illegality on the part of the Magistrate in passing a fresh order on 24-8-1962, after he had become functus officio by pronouncing his original order dated 21-6-1962.

7. It may be said that, alter all, it was an error in form rather than in substance, because the Magistrate in passing the fresh, order dated 24-8-1962, was only correcting a cierical error in his original judgment dated 21-6-190.?. The question therefore arises whether the Magistrate was only correcting a clerical error in his original order by directing the petitioner to remove the obstruction to the path-way.

As I said, the learned Magistrate himself did not act as if he was correcting a clerical error. He seemed to think that a criminal Court after it was passed an order was empowered to pass further orders to make its previous order effective and in that belief he passed the further order not by way of amendment of the original order, but as a separate order. A Criminal Court has no power to do this. Whatever directions had to be given by a Court to carry out its order and make it effective has to be done in the first order itself and if it has omitted to do so and if the omission, is of the nature of a clerical error, the Court may amend its original order Under Section 369, Cri. P. C. Beyond this, the Court has no power as the learned Magistrate seems to think, as the Court becomes functus officio when once it has passed the order.

Here, in this case even in its second order dated 24-8-1962, in which the Magistrate directed the petitioner to remove the obstructions within a week, the Court did not give any direction that the obstructions should be removed by the police if they were not removed within a week by the petitioner. Thus, the Court actually passed a third order directing the police to remove the obstructions. This again, the Court had no power to do after it had become functus officio. This happened after the Sessions Judge had dismissed the revision and after the petitioner had moved this Court in revision and that too without issuing any notice to the petitioner. It was highly wrong on the part of the Magistrate to have done this.

8. The learned Sessions Judge did not have to deal with this third order passed by the Magistrate directing the Police to remove the obstructions as it was done after the learned Sessions Judge's order. He seemed to think that the second order dated 24-8-1962 was in the nature of correcting a clerical error in his original order by the Magistrate. The learned Sessions Judge relied on a decision Bangaru Reddy v. The State : AIR1959AP95 , in which the following passage occurs:

A clerical error is an error which can be explained only by considering it as a slip or mistake. Thus, apart from correction of such errors as are popularly known as purely clerical, supply of omissions of consequential orders too may be permissible in certain cases if they are in the nature of clerical omissions; but certainly such omissions as would demand judicial consideration or determination are beyond the scope of that term.

The learned Sessions Judge relied on this and said that as the learned Magistrate had found in his original order that the disputed path was obstructed by fixing posts and shed, but had omitted to order their removal though he ordered that the respondents right of user of the disputed path was not to be interfered with, the order to remove; the posts and shed appeared to be of a consequential nature which would be permitted to be corrected as a clerical mistake as provided Under Section 369, Cri. P. C.

9. It is difficult to support this conclusion of the Sessions Judge even on the basis of the judgment of the Andhra Pradesh High Court. That decision made it clear that supply of omissions of consequential orders may be permissible in certain cases if they are in the nature of clerical omission but certainly such omissions as would demand judicial consideration or determination are beyond the scope of that term. Thus, if an omission is of a nature which would demand a decision by the Court in the exercise of its judgment or discretion in pursuance of a determination, it cannot be termed as a clerical error, which could be corrected, In that connection, I may refer to Vol. XIV of Corpus Juris Secundum at page 1202, in which the following passage occurs dealing with clerical error:

As particularly applied to errors in judicial proceedings, it has been said that the term has been used somewhat loosely in the decisions, some of the cases indicating that it is limited to error in transcribing figures, or the addition of figures, or mere misprision, while others employ it in a broad sense to include all such errors, being matters of record, as intervene in the progress of a cause whether committed by clerk. Court, or counsel, to which judicial sanction or discretion cannot reasonably be said to have been applied, but not to extend to errors of omission or inclusion which involve the exercise of judgment or discretion in pursuance of a determination, intentional acts based on a mistaken belief, or on a misconstruction of evidence or a misapplication of the law thereto, even though the Court is misled therein by counsel.

Thus it is clear that where the omission has occurred as a result of the failure on the part of a Judge to exercise his discretion or judgment in pursuance of a determination, such omission cannot be called a clerical error.

10. In this connection, it is necessary to notice the difference in wording of Section 369, Cri. P. C. and Section 152, C. P. C. It will be seen that Section 369, Cri. P. C. permits only the correction of a clerical error, whereas Section 152, C. P. C. permits the correction of clerical or arithmetical mistakes in judgments, decrees, or orders or errors arising therein from any accidental slip or omission. Thus, the scope of correction Under Section 369, Cri. P. C. is even less than the scope of correction in Civil Cases Under Section 152, C. P. C. Even Under Section 152, C. P. C. only accidental slip or omission are permitted to be corrected. In any case, therefore the scope of correction Under Section 369,; Cri. P. C. of criminal judgments or orders cannot go beyond the correction of accidental slip or omission.

11. Coming now to the present case, the question is whether it can be said that the omission for the Magistrate to direct the removal of the obstructions can be called a mere accidental slip or omission which did not require a judicial determination by him at the time he passed the order. The obvious answer can only be that it Is not an accidental slip or omission. The first respondent knew that the posts have been erected in the path-way even before he filed the petition and further that a shed had been erected subsequent to the filing of the petition obstructing the path-way. It was therefore his duty to have requested the Magistrate when he passed the original order to direct the removal of the said obstruction if he was upholding the easement right of the first respondent. If the first respondent had raised this point before the Magistrate, the petitioner would have had an opportunity of pointing out to the Court that the Court cannot pass such an order to remove the obstructions in an application Under Section 147, Cri. P. C. Jut that case, the Court would have had to determine; I judicially whether it could direct the removal of j the obstructions. Thus, the direction to remove the obstructions is a matter which required juridical determination.

12. The order of the learned Magistrate dated i 24-8-1962 itself shows that he had to determine whether he could direct the removal of the obstructions and he determined that he could do so and for that purpose he relied on the decision of the Assam High Court Debendra Kumar Das v. Satisk Chandra Das AIR 1958 Assam 112, which held that if a right of way is found in favour of a party Under Section 147, Cri. P. C, the law gives the Court sufficient power to take such measures as may give the order validity not only in the by of law but to make the order effective and useful to the party in whose favour it has been passed and that the Court can therefore order the removal of the fencing or other obstruction to the pathway. Thus, what the Magistrate did by the second order was to determine judicially whether he had the power to order the removal. This meant that the matter required judicial determination which took it out of the category of a clerical error, or omission.

13. I may also point out that the decisions of various High Courts on the question of the power of Court to order removal of obstruction are not uniform. The Madras High Court in it decision Angappa Gounder v. Krishnaswami Gounder : AIR1959Mad28 , holds the same view at the Assam High Court that the removal of any obstruction that has been placed in the exercjsa of the right by the aggrieved party can be ordered by the Court Under Section 147, Cri. P. C.

In the decision Abdul Wahab Khan v. Md. Hamid Ullah : AIR1951All238 (FB), also the eame view as taken by the Assam and Madraj Fligh Courts has been taken. But the Calcutta, Bombay and Nagpur High Courts in their decisions Hem Chandra v. Abdul Rahaman AIR 1942 Cal 244 (FB), Shantilal Manganlal V. Dahya-Bhai Gordhanbhai : AIR1954Bom368 , and Usman Ali v. Emperor AIR 1938 Nag 297, have taken a contrary view. After perusal of the above decisions, I certainly agree with the view I expressed by the Assam, Madras and Allahabad f High Courts that a Criminal Court acting Under Section 147 has the power to order removal of obstruction while declaring the right of way in favour of a party. But, it follows that in a proceeding Under Section J47, Cri. P. C. the direction to remove obstruction does not follow as a mattei of course, but requires judicial determination.

14. But the question here is not whether the Court has got such power, but whether if the Court omits to exercise that power in passing its order, it can subsequently amend its order by ordering the removal of obstruction on the basis that it was only an accidental slip or omission. From what I have stated above, it will be clear that a Criminal Court cannot after passing its original order exercise its mind over again on the same matter and add to its original order by directing the remoyal of the obstruction. It cannot be termed as mere accidental slip of omission. Hence, it follows that the order of the Magistrate dated 24-8-1962 was an order which he did not have a right to pass and the said order has to be and is hereby set aside. The first respondent if he was aggrieved by the omission, should have taken the matter to the Higher Courts instead of applying to the Magistrate for amendment.

15. The same remarks will apply to the third order passed by this Magistrate on 7-11-1962. The Magistrate cannot by a separate order direct the removal of the obstruction by the police. The final orders passed by Magistrate should be self-contained and all necessary directions should be given in them and they can subsequently pass only such further orders as are permitted by the provisions of the Criminal Procedure Code. It is really, unfortunate in the present case that on the strength of this illegal order dated 24-8-1962, and the further illegal order dated 7-11-1962, the obstructions should have been removed. But this has been done and the path-way has been opened after the removal of the obstruction. Thus, the present position is that the order dated 21-6-1962 will apply and the petitioner cannot interfere with the use of the path-way, unless he takes the matter to the Civil Court and gets a declaration of his right to the said path-way.

16. Ordered accordingly.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //