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Ghanashyam Das Vs. Cuttack Municipality - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in45(1978)CLT343; 1978CriLJ1310
AppellantGhanashyam Das
RespondentCuttack Municipality
Cases ReferredU. J. S. Chopra v. State of Bombay
Excerpt:
.....1951. [air 2002 orissa 130 overruled]. - it is true that there is no such thing as the principle of constructive res judicata in a criminal case, but there is such a principle as finality of judgments which applies to criminal as well as civil cases and is implicit in every system, wherein provisions are to be found for correcting errors in appeal or in revision......court was dismissed and the decision of this court was confirmed-once the supreme court has finally disposed of the matter, the judgment of the high court merges in that of the supreme court and it becomes final and irrevocable. neither the trial court nor the high court can, therefore, entertain a review application which would have the effect of disturbing the order made by the supreme court.8. for the aforesaid reasons, i hold that the application under section 482 cr. p.c. for review of the order for payment of daily fine is thoroughly misconceived. the criminal revision is accordingly dismissed.
Judgment:
ORDER

P.K. Mohanti, J.

1. This criminal revision has been filed under the following circumstances : The opposite party launched prosecution against the petitioner under Section 385-A of the Orissa Municipal Act for unauthorised construction of a pucca building. The petitioner pleaded not guilty and contended that he constructed the house on old foundation which was existing there prior to his purchase.

2. The trial court by its judgment dated 24-11-64 held the petitioner guilty under Section 385-A of the Act and sentenced him to pay a fine of Rs. 500/- with a default sentence of S. I. for five months and also to pay a daily fine of Rs. 5/- till he obtained permission for such unauthorised construction. The petitioner preferred Criminal Appeal No. 448-C of 1964 before the Sessions Judge, Cuttack who by his judgment dated 16-12-65 allowed the appeal and set aside the conviction and the sentence. Then the opposite party preferred Criminal Appeal No. 67 of 1966 before this Court against the Order of acquittal. By its judgment dated 14-8-68 this Court set aside the order of acquittal, convicted the petitioner under Section 385-A of the Act and sentenced him to pay a fine of Rs. 500/- or in default to undergo S. I. for five months. He was further sentenced to pay a daily fine of Rs. 5/- from the date the prosecution was launched till he either demolished the unauthorised construction or obtained necessary permission from the Municipality. Aggrieved by the judgment of this Court the petitioner, preferred Criminal Appeal No. 9 of 1970 before the Supreme Court and by judgment dated 1-8-73 the Supreme Court dismissed the appeal and confirmed the conviction and the sentences passed by this Court. The petitioner also filed a review petition before the Supreme Court which was dismissed on 7-8-74.

3. The petitioner paid up the fine of Rs. 500/- after disposal of the appeal by the Supreme Court but did not pay the daily fine. The opposite party filed a petition before the trial court for issue of warrant for realisation of a sum of Rs. 18710/- towards daily fine for 3742 days, that is, from 16-10-63 till 16-2-74 when the Municipality accorded permission. On 10-8-76 the petitioner filed an application under Section 482 of the new Cr. P.C. before the trial court for review of the order for payment of daily fine in exercise of its inherent powers. It was alleged that on 4-9-63 the petitioner had filed an application for permission of the Municipality but no order having been passed on his application he filed a petition before the Collector, Cut-tack under Section 401 (5) of the Act which was registered as Municipal Appeal No. 20 ot 1966. The Collector called for a report from the Executive Officer of the Cuttack Municipality but no report having been received the application filed by the petitioner was shelved. It was accordingly urged that by virtue of Section 268 (2) of the Act it must be deemed that permission was accorded on 4-9-63, that is, the date on which the application for permission was made. It was also alleged that the petitioner made a second application for permission on 16-12-69 and the Municipality accorded sanction on 16-2-74. Upon these allegations it was urged that the petitioner is an illiterate person belonging to the business community and due to misunderstanding of instruction given to his lawyers the aforesaid facts could not be placed before the High Court or the Supreme Court.

4. The learned Magistrate by his order dated 21-9-76 rejected the application under Section 482 Cr. P.C. and directed issue of warrant for realisation of the sum of Rs. 18.710/- from the petitioner. It is against this order that the present criminal revision has been preferred:

5. At the outset it must be stated that unlike a Civil Court, a Criminal Court other than a High Court does not possess any inherent powers. Under Section 482 Cr. P.C., the High Court alone has inherent power to rectify injustice and prevent abuse of process of the Court. Therefore, a petition under Section 482 Cr. P.C. did not lie to the Magistrate. I am fortified of this view by a recent decision of the Supreme Court in the case of Bindeshwari Prasad Singh v. Kali Singh 1977 SCC (Cri) 33 : 1978 Cri LJ 187 wherein it was held as follows (at p. 188 of 1978 Cri LJ):.there is absolutely no provision in the Code of Criminal Procedure of 1898 (which applies to this case) empowering a Magistrate to review or recall an order passed by him. Code of Criminal Procedure does contain a provision for inherent powers, namely, Section 561-A which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the subordinate Criminal Courts have no inherent powers....

6. Now the question arises whether this Court can review its order for payment of daily fine in exercise of its inherent powers under Section 482, Cr. P.C. The power of review is a creature of the statute. There is no provision in the Cr. P.C. which authorises a Criminal Court to review its judgment or order. The legislature has expressly provided for review of the judgment in the Civil P. C, but no such provision finds place in the Cr. P.C. Under Article 137 of the Constitution the Supreme Court has been invested with an express power to review any judgment pronounced or order made by it, while no such power has been conferred on the High Court. This Court cannot, therefore entertain an application for review on the ground of discovery of new matter or evidence. It is not correct to say that if in any proceeding an Advocate fails to urge a certain question by misunderstanding of instruction given by the client or otherwise, then the case will have to be reviewed under Section 482, Cr. P.C. The acceptance of such a position would militate against the finality of a judgment in a case which has been disposed of according to law. We are here concerned with the review of an appellate order of the High Court. Section 393 of the new Cr. P.C. corresponding to Section 430 of the old Cr. P.C. provides that judgments and orders passed by an appellate court upon an appeal shall be final, except in the cases provided for in Section 377, Section 378, Sub-section (4) of Section 384 of Chapter XXX. The principle as to the finality of the criminal judgments has been recognised by the Supreme Court in Janardhan Reddy v. State of Hyderabad : [1951]2SCR344 wherein it was observed at p. 743 of Cri LJ:

It is true that there is no such thing as the principle of constructive res judicata in a criminal case, but there is such a principle as finality of judgments which applies to criminal as well as civil cases and is implicit in every system, wherein provisions are to be found for correcting errors in appeal or in revision. Section 430 (Section 393, new) Cr. P.C... have given express recognition to this principle of finality....

In the case of U. J. S. Chopra v. State of Bombay : 1955CriLJ1410 their Lordships held that once a judgment has been pronounced by the High Court either in exercise of its appellant jurisdiction or its revisional jurisdiction no review or revision can be entertained against that judgment, and there is no provision in the Cr. P.C. which would enable even the High Court to review the same or to exercise revisional jurisdiction over the same.

Thus it is clear that the inherent powers which are preserved to the High Court under Section 482 Cr. P.C. do not include power to review its judgment.

7. The matter may be looked at from another point of view. As indicated earlier, the appeal preferred by the petitioner before the Supreme Court was dismissed and the decision of this Court was confirmed-Once the Supreme Court has finally disposed of the matter, the judgment of the High Court merges in that of the Supreme Court and it becomes final and irrevocable. Neither the Trial Court nor the High Court can, therefore, entertain a review application which would have the effect of disturbing the order made by the Supreme Court.

8. For the aforesaid reasons, I hold that the application under Section 482 Cr. P.C. for review of the order for payment of daily fine is thoroughly misconceived. The criminal revision is accordingly dismissed.


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