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Har Bilas Vs. Ram Niwas Bansal and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1984CriLJ1008
AppellantHar Bilas
RespondentRam Niwas Bansal and anr.
Excerpt:
.....of section 362, cr. i fail to appreciate how this ruling can help in the matter of review or alteration of judgment when section 362, cr. , contains a complete bar except where otherwise it is permissible under any provision and when that is the view taken in the case of naresh 1981 crilj 1044 (supra) as well as in the case of state of orissa 1979 crilj 33 (supra), which the applicant's counsel himself cited. i fail to appreciate how this pronouncement is helpful to the facts of the present case where any criminal proceeding is sought to be quashed on averment that a prima facie case is not disclosed the court exercising powers under section 482, cr. in the like manner in criminal misc. quashing the order framing charge as well as charge sheet etc......otherwise. while dealing with the present section in para 11 it was observed that an alteration or review by high court would be permissible as in the case of other courts, where provision therefor is made in this code or by any other law for the time being in force. thus there must be some provision under which a review or alteration has been made permissible and in absence of that according to this authority also no review or alteration is permissible. the next case relied upon is of madhu limaye v. state of maharashtra : 1978crilj165 . what has been held in that case is that in certain situations section 397 of the criminal p.c. relating to revision may not stand as a bar to jurisdiction under section 482, cr.p.c., which is wider. i fail to appreciate how this ruling can help in the.....
Judgment:
ORDER

M. Wahajuddin, J.

1. Criminal Misc. Application No. 3082 of 1982 under Section 482, Criminal P.C., was dismissed on 7.11.1983 Criminal Misc. Application No. 8686 of 1983 under Section 482. Criminal P.C., was dismissed on 19.10.1983 and Criminal Misc. Application No. 6308 of 1982 under Section 482, Cr.P.C., was dismissed summarily before admission on 19.10.1983. In all the three cases applications have been preferred for recall of the order of dismissal.

2. Sri Tejpal Singh appearing in two cases argued the applications for recall, and Sri Devendra Swarup appearing in case No. 8686 adopting that argument made one more submission. All the aforesaid three cases were dismissed after revising the list as is the practice in this Court. Parties' counsel had notice because they all were shown in the cause list of the respective dates with the names of counsel concerned. Criminal Misc. Application No. 8686 of 1983 was for quashing the Criminal proceedings in a. police chalan case under certain sections. The Court observed that a prima facie case is disclosed hence the application is rejected. That case was at admission stage and was a part heard case. Criminal Misc. Application No. 3082 of 1982 was listed for hearing. It was for directing respondent No. 1 to deposit the truck No. U.P.H. 7654 in the custody of CJM Agra. By order dated 3.8.1982 in revision (Annexure F) the High Court held that instead of permitting the vehicle lying idle it should be allowed to be operated; may be by the applicant in that case and directed that the vehicle be released in favour of the applicant in that case, namely, Ram Niwas Bansal, opposite party. The applicant maintained that after the judgment of the Court the opposite party applied for release of truck No. USA 2135 and not UPH 7654. It is clear that only one vehicle was in dispute and the direction of the High Court in revision was for release of that vehicle to the applicant of that case. This Court disposing of the matter on merits in absence of the applicant's counsel held that the record has been perused and the petition is dismissed as it has no force. In the third case, Criminal Misc. Application No. 6308 of 1982, which was also at the stage of admission, the prayer was that the charge-sheet, summoning order and the framing of the charge in the Police case all be quashed and this Court observed that 'perused the materials on record including that of the lower Court and the application under Section 482, Cr.P.C., has no force and it is rejected summarily. I have referred to all this to indicate that none of these three applications were dismissed in default for want of any steps, etc., and they were all dismissed on merits, otherwise also when the application purported to be under Section 482, Cr.P.C. Unless the steps were not completed or such things the Court had to consider the applications even in absence of the parties as to pass orders for admission or summary rejection in cases of admission, and to pass orders allowing or rejecting the application in case of hearing case.

3. There is a pronouncement of the Supreme Court in the case of Naresh v. State of U.P. : 1981CriLJ1044 that once an order or judgment has been signed the Court cannot alter it except for clerical error, etc., and any power of review does not exist. I may quote the relevant observations made in that case (para 2):

The High Court was wholly wrong in altering the judgment pronounced by them disposing of the criminal appeals, That was clearly in contravention of the provisions of Section 362, Cr.P.C.

Section 362, Cr.P.C., runs as follows:

Court not to alter judgment

Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it is signed its judgment of final order disposing of a case shall alter, or review the same except to correct a clerical or arithmetical error.

4. It is urged that this section does not apply to judgment and orders of the High Court. For that the aforesaid observations of the Supreme Court in the case of Naresh 1981 CriLJ 1044 (supra) which I have quoted is a complete answer. The Supreme Court has in that case observed that the alteration of the judgment by the High Court was clearly in contravention of the provisions of Section 362, Cr.P.C. This in itself implies that in view of the Supreme Court in the aforesaid latest pronouncement Section 362 of the present Cr.P.C. applies to all Courts including High Court. The language of the section using the expression 'the Court' also indicates that. It was argued that the observations were made in the content that the High Court stated that there was a clerical mistake in the operative part of the judgment while in view of the Supreme Court this observation was incorrect. The crux of the matter is not that but the crux is whether Section 362 of the new Cr.P.C. applies to High Court's orders and judgment also or not and so far as that aspect is concerned the aforesaid pronouncement is expressly an authority that this provision is attracted in case of orders and the judgments of the High Court as well as otherwise why should the Supreme Court expressly observe that the High Courts orders altering the judgment contravenes the provision of Section 362, Cr.P.C.

5. It was next urged that Section 362, Cr.P.C., may apply only partly and not in an unqualified manner. One cannot add to the language of the section. It does not say that qua High Court's orders and judgment the bar applies only partly and not wholly. It was urged that the inherent powers are derived from the rights conferred under the Constitution itself and so such powers would not be governed by any procedural law. It would not admit of any doubt that inherent powers of the Court exist even independently of Section 482, Cr.P.C. in view of the Constitution itself but the question is whether a judgment or final order passed even in that proceeding can be reviewed and so far as that aspect is concerned, the bar under Section 362, Cr.P.C., would apply to such judgment and orders also because a judgment in proceeding under Section 482, Cr.P.C. and the Court cannot import any exceptions in that section which are not there. It was further urged that a judgment which does not assign reasons will be a nullity. Sri Tejpal urged that while he may concede that in case of summary rejection at the stage of admission the Court may not assign reasons, in hearing cases it has to do so. Sri Devendra Swarup on the other hand urged that the Court can dismiss the case assigning reasons but once reasons are assigned and dismissal is made behind the back of the party it will be a denial of justice and the counsel must necessarily be heard. Reliance has been placed upon a number of pronouncements which I may consider one by one. Reliance was placed upon the case of State of Orissa v. Ram Chander : 1979CriLJ33 . This ruling in no way helps the present applicants. It was observed that corresponding Section 369 as enacted in 1898, while laying down the bar to alter or review the judgments made exception in the case of High Court employing the language 'no court, other than a High Court. The observations made in this case in para 8 is that despite the express exclusion of the High Courts from the operation of this provision, it was held that High Court had no implied powers to alter or review their own judgments whether under Section 369 or Section 439 of the then Cr.P.C. or otherwise. Section was redrafted because as stated in the very ruling there were certain provisions in the Code and Clause 26 of the Letters Patent of the High Courts empowering High Courts to revise their judgments. The redrafted section reads as follows:

Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court, by the Letters Patent, or other instrument constituting such High Court, no Court when it has signed its judgment shall alter or review the same, except to correct a clerical error.

It would be found from redrafted section that the only saving is as otherwise provided by this Code or by any other law for the time being in force or in the case of the High Court by the Letters Patent or other instrument. This itself again is made clear that there should be some power to revise or review in the judgment and order under the provisions of the Code or otherwise provided for and only then alteration could be made and not otherwise. While dealing with the present section in para 11 it was observed that an alteration or review by High Court would be permissible as in the case of other Courts, where provision therefor is made in this Code or by any other law for the time being in force. Thus there must be some provision under which a review or alteration has been made permissible and in absence of that according to this authority also no review or alteration is permissible. The next case relied upon is of Madhu Limaye v. State of Maharashtra : 1978CriLJ165 . What has been held in that case is that in certain situations Section 397 of the Criminal P.C. relating to revision may not stand as a bar to jurisdiction under Section 482, Cr.P.C., which is wider. I fail to appreciate how this ruling can help in the matter of review or alteration of judgment when Section 362, Cr.P.C., contains a complete bar except where otherwise it is permissible under any provision and when that is the view taken in the case of Naresh 1981 CriLJ 1044 (supra) as well as in the case of State of Orissa 1979 CriLJ 33 (supra), which the applicant's counsel himself cited.

6. It was further urged that if a case is decided wrongly it cannot be reviewed but if it is a nullity hitting jurisdiction it can be reviewed. Reliance was placed upon : AIR1965SC745 . In re, under Article 143 of the Constitution of India. I fail to appreciate how this pronouncement is helpful to the facts of the present case where any criminal proceeding is sought to be quashed on averment that a prima facie case is not disclosed the Court exercising powers under Section 482, Cr.P.C., would ordinarily avoid expression of opinion and appreciation of evidence in the discussion in judgment as that may prejudice the applicant himself. It all the more becomes necessary when the applicant's counsel is not appearing and it is in the interest of the applicant himself to be very brief as to express an opinion and finding whether a prima facie case existed. There are authorities that if a prima facie case exists inherent jurisdiction will not be exercised, namely, Delhi Municipality v. Ram Kishan : 1983CriLJ159 . In fact there is also an authority, Khacheru Singh v. State of U.P. AIR 1982 SC 784 (2) : 1982 CriLJ 629 (2) that where any charge is framed superior Court should not interfere. When that is the position of law it will be sufficient to observe that a prima facie case is disclosed. This was done in Criminal Misc. Application No. 8686 of 1983. In Criminal Misc. Application No. 3082 there was a judgment of the revisional Court (High Court), itself and consequently it was sufficient to observe that the record has been perused and the petition is dismissed and it has no force. In the like manner in Criminal Misc. Case No. 6308 of 1982 the prayer was for. quashing the order framing charge as well as charge sheet etc. and it was sufficient to say that the materials on the record of the lower Court has also been perused besides material on this record and the application has no force besides it was a case of summary rejection. The crux of the matter is whether the Courts has exercised its mind or not and has proceeded to decide the case on merits or not. A perusal of the order passed themselves go to show that the mind was exercised and the materials were considered and then the order was passed and the order happened to be on merits.

7. Reliance was further placed upon the case of Ratilal Bhanji v. Asstt. Collector of Customs Bombay AIR 1967 SC 1639 : 1967 CriLJ 1676. This case is simply an. authority for the proposition that inherent powers of High Court are preserved by Section 561-A corresponding to present Section 482, Cr.P.C. and they ate vested by 'law' within meaning of Article 21. There cannot be any dispute that the Court has wide powers under Section 482, Cr.P.C. As observed earlier also the matter for consideration is whether this Court will alter or review its judgment when any provision for the same does not exist and so far that aspect is concerned I have already referred to the two Supreme Court pronouncements earlier.

8. Reliance is further placed upon the case of Raj Kapoor v. State (Delhi Administration) : 1980CriLJ202 . This case is simply an authority for the proposition that revisional powers do not bar the exercise of inherent powers and consequently application under Section 482, Cr.P.C., cannot be rejected simply because a revision lies.

9. The case of Chandra Deo Singh v. Prokash Chandra Bose : [1964]1SCR639 was cited. It related to dismissal of the complaint and it was held that absence of reasons would make the order a nullity and reasons should be given so that revisional Court may be approached. As I have already dealt with the facts of the present case, and it was sufficient to lay down that a prima facie case, is made out or that the materials on perusal do not make out a case for, interference and it was needless to say more when the matter related to exercise of inherent powers. The facts of the aforesaid Supreme Court case are quite different and whatever observation was made it was made in the context of the case. Reliance was further placed upon the case of Krishna Singh v. Mathura Ahir : AIR1982SC686 . It is again on a different point as order of the Civil Judge was without jurisdiction and whatever observations have been made are in that context. Reliance was also placed upon' the cage of Nawabkhan v. State of Gujarat : 1974CriLJ1054 . In that case there was an externment order under Section 56, Bombay Police Act and an opportunity to tender explanation was not given under Section 59. It was held that the order was not a valid order and the accused person could not be prosecuted and convicted for disobedience of the order. In the present case opportunity was there. The case was listed in the cause list with the name of the counsel and the counsel did not put in appearance in spite of the list having been revised so what Court was to do except to proceed with the case on its own, it being under Section 482, Cr.P.C., and then take a decision as has been done. Reliance was also placed upon the case of Mohammad Mian v. State of U.P. 1981 All Cri R 292 in that case counsel had sent an illness slip and that illness slip could not be filed because of inadvertence by the clerk and the case was disposed of without hearing him. On such facts the appeal which was dismissed was restored and the order dismissing the appeal was re-called. The facts are distinguishable. All the three cases were mentioned in the cause list, name of the counsel was also printed. Neither any adjournment slip was received nor any mention was made as is the usual practice here. The list was revised. The Court had the only option to proceed with the case on its own and it has exercised its mind and then dismissed the three cases and when that is the position. Section 362, Cr.P.C. would be a complete bar to the alteration of that judgment or reviewing it. Any other provision also providing for review or re-call of the order does not exist. In the circumstances all the three applications for the re-call of judgment and order in the aforesaid three cases are dismissed.


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