Madras High Court
Suresh Kumar vs State on 24 March, 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 24.03.2008 CORAM THE HONOURABLE MR. JUSTICE M.JEYAPAUL CRL.O.P.No.6512 of 2008 and M.P.No.1 of 2008 Suresh Kumar ... Petitioner Vs. State, rep. by Inspector of Police, Pallikaranai Police Station, Chennai. ... Respondent. Criminal Original Petition filed under Section 482 Cr.P.C. to call for the records in Crime No.1849 of 2007 on the file of respondent police and quash the same as illegal. For petitioner : Mr.R.Sankara Subbu. For respondent : Mr. A.Saravanan, G.A. (Crl.Side) O R D E R
Heard both sides.
2. This petition is filed seeking to quash the entire criminal proceedings as against the petitioner, who has been ranked as A.1 in Crime No.1849 of 2007 on the file of the respondent police.
3. The sole allegation as against the petitioner is that he was found in possession of fake Passport and fake Indian Visa to travel to India. The respondent police having suspected the bona fides of the petitioner, chose to refer those two documents found in possession of the petitioner to the Chemical Examiner, who has returned a finding that as far as the Passport and Indian Visa alleged to have been found in possession of the petitioner are concerned, they are genuine. Of course, the Chemical Analysist has gone beyond the brief and stated that the New Zealand Visas are found to be suspicious, which will have to be confirmed from the New Zealand mission concerned.
4. We are not concerned with the fabrication or the forgery of any New Zealand Visas. The question is whether the petitioner possesses Indian Passport and Indian Visa for the purpose of entering into our land. It is only the look out of the New Zealand Government, as rightly pointed out by the learned counsel appearing for the petitioner, to probe into the veracity of the New Zealand Visas found in possession of the petitioner herein.
5. As there is a telling testimony in the form of report emanated from the Chemical Examiner to the effect that the petitioner possessed genuine Passport and Indian Visa, this Court finds that the entire criminal proceedings as against the petitioner have to be quashed. In view of the above, the entire criminal proceedings as against the petitioner in Crime No.1849 of 2007 on the file of the respondent police are quashed and the criminal original petition stands allowed. Consequently, connected petition is closed.
sbi
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The matter was taken up for hearing on being mentioned after the final order was passed in the main Criminal Original Petition No.6512 of 2008.
2. The petitioner, who is accused of offences punishable under sections 12(1)(A) of the Passport Act and 472, 473, 475 read with 120B of the Indian Penal Code and 109 of the Indian Penal Code, moved the Criminal Original Petition No.6512 of 2008 seeking quashment. The court, having heard the submissions made on either side, chose to allow the petition seeking quashment and as a result of which the entire criminal proceedings as against the petitioner in Crime No.1849 of 2007 on the file of the respondent police were quashed.
3. Learned Government Advocate (Criminal Side) sought permission to post this matter for being mentioned. Accordingly, the matter came up for hearing before this court and the submissions made on either side were heard.
4. Learned counsel appearing for the petitioner would submit that there is a bar under section 362 of the Code of Criminal Procedure to review the final order passed by this court. Therefore, the question of re-opening the case which has already reached finality does not arise, he would submit.
5. Learned Government Advocate (Criminal Side) would submit that the gravity of the charges as against the petitioner and the seizure of fake seals from the custody of the petitioner were not properly highlighted during the course of final hearing of Criminal Original Petition No.6512 of 2008 for want of proper instructions from the respondent police and that therefore, the order passed by this court will have to be reviewed.
6. A Bench of this court in ARUNACHALAM, K.K. v. K.NALLUSAMY (1995-2-LW 456) has heavily come down upon the manner of posting the cases "for being mentioned" when such a procedure was not justified by any of the provision of law. The party cannot prescribe a procedure of his own and have the matter mentioned in the court orally and bring it once again for fresh consideration. Therefore, the matter cannot be taken up under the caption "for being mentioned", it has been observed therein.
7. It is relevant to refer to the provision under section 362 of the Code of Criminal Procedure which reads 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 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. The aforesaid procedural law is clear that once a judgment or a final order is passed, the same cannot be reviewed, but, a clerical or arithmetical error can be altered or reviewed by the court.
9. Here is a case where both the parties were heard in full. It may be a case where the learned Government Advocate (Criminal Side) could not properly project the case and highlight the important points with regard to the gravity of the charge as against this petitioner and the materials collected during the course of investigation. But, there is no scope for re-opening of the case which had already reached finality. Further, section 362 of the Code of Criminal Procedure is a direct bar in entertaining any such plea that too under the novel procedure under the caption "for being mentioned".
10. In HARI SINGH MANN v. HARBHAJAN SINGH BAJWA (2001 SCC (Cri) 113), the Supreme Court has categorically held as follows:-
"Section 362 of the Code mandates that 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 an arithmetical error. The section 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 disentitled to entertain a fresh prayer for the same 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 official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error."
11. The moment the court passes an order or judgment, it becomes functus officio. It has got a power to correct a clerical or arithmetical error under the provision of section 362 of the Code of Criminal Procedure. But, it is disentitled to entertain a prayer for re-opening the case and to re-hear the matter so as to alter the verdict passed by it.
12. It has been held in STATE OF KERALA v. M.M. MANIKANTAN NAIR (2001 SCC (Cri) 808) as follows:-
"The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the court after it has signed its judgment or final order disposing of a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed. By the first order dated 31.5.2000, the High Court rejected the prayer of the respondent for quashing the criminal proceeding. This order attained its finality. By the impugned order, the High Court reversed its earlier order and quashed the criminal proceeding for want of proper sanction. By no stretch of imagination can it be said that by the impugned order the High Court only corrected any clerical or arithmetical error. In fact the impugned order is an order of review, as the earlier order was reversed, which could not have been done as there is no such provision under the Code of Criminal Procedure, but there is an interdict against it."
13. In the aforesaid judgment, the Supreme Court has held that there is no power conferred on the High Court under the scheme of the Code of Criminal Procedure to review its own order or judgment. Of course, the clerical or arithmetical error in the judgment or order can be corrected, inasmuch as the judgment or order reaches its finality the moment it is signed and pronounced.
14. A judgment of the Full Bench of the Calcutta High Court in HARJEET SINGH v. STATE OF WEST BENGAL (2005 (2) MWN (Cr.)(FB) 109 (Cal.)) can be usefully referred to as the ratio laid down therein fits in squarely to the facts and circumstances of this case. It has been held by the Full Bench of the Calcutta High Court that the court cannot review or recall its final order even in cases where the parties come up before it feeling that they have not been heard or they have left out something which, if placed before the court, may have resulted in a decision and that the decision arrived in their absence was an impaired finding. Once, the court lifts its pen after signing the verdict, it cannot put it once again except to rectify a clerical or arithmetical error, it has been further held therein.
15. Even in a worst case, where, the parties were denied an opportunity of being heard or in a case where they failed to highlight certain important points to convince the court, they cannot seek for review of the decision pronounced by the court. In the latest judgment of the Supreme Court in SUNITA JAIN v. PAWAL KUMAR JAIN AND OTHERS (2008(1) Supreme 513), it has been held that the power of review is not an inherent power and must be conferred on a court by a specific or express provision to that effect. Inasmuch as no power of review has been conferred by the Code of Criminal Procedure on the criminal courts, it cannot review an order passed or judgment pronounced. Section 362 of the Code of Criminal Procedure does not empower a criminal court to alter its judgment or final order after it is signed except to correct clerical or arithmetical error.
16. The afore referred catena of authorities lay down the law uniformly that the criminal courts do not have the power of review except to set right the clerical or arithmetical error. Section 362 of the Code of Criminal Procedure imposes an embargo on the criminal courts to entertain any such plea after it has rendered its verdict. Once a verdict reaches its finality, the courts have no power to re-open the same for the purpose of altering the finality it has already reached.
17. The learned Government Advocate (Criminal Side) referred to an authority reported in MINU KUMARI v. STATE OF BIHAR ((2006) 2 SCC (Cri) 310) wherein the Supreme Court has held that when a Magistrate, by mistake, has taken cognizance and issued summons as against some accused where the investigating officer did not find their involvement in the offence, the High Court should have gone to the rescue of the learned Judicial Magistrate, who had rectified such a mistake committed by him.
18. That was a case where the first information report was launched as against four accused by the informant. The names of all the four assailants found a place in the first information report. But, during the course of investigation, the investigating officer found only two persons out of the four named in the FIR appear to have committed the offence and therefore, having deleted two persons from the final report, laid the charge sheet as against the remaining two accused. But, the learned Chief Judicial Magistrate, by oversight, without adverting to the final report which do not disclose prima facie any material as against the persons who have been deleted from the charge sheet, took cognizance of the case and issued summons to those persons who have been deleted by the investigating officer. Having realised the mistake, the Chief Judicial Magistrate was pleased to strike off those two names from the criminal proceedings and sustained issuance of summons to the other two accused. The matter was taken up to the Additional District and Sessions Judge by way of revision, who having referred to the provision under section 362 of the Code of Criminal Procedure, set aside the order passed by the Chief Judicial Magistrate holding that the learned Chief Judicial Magistrate cannot recall its own order on the pretext that there was a clerical or arithmetical error as there was an embargo under section 362 of the Code of Criminal Procedure. The matter was taken up to the High Court. Referring to the provision under section 362 of the Code of Criminal Procedure, the High Court confirmed the order passed by the Additional District and Sessions Judge, Siwan. In such circumstances, the Supreme Court has held that if an error has been committed by mistake, the High Court should have gone to the rescue of the learned Chief Judicial Magistrate who was pleased to correct the mistake committed by him.
19. In this case, no mistake was committed by this court while passing the final order in Criminal Original Petition No.6512 of 2008. There might have been some mistake on the part of the respondent police in properly briefing the learned Government Advocate (Criminal Side). Therefore, the court finds that the aforesaid ratio laid down by the Supreme Court does not apply to the facts and circumstances of this case.
20. In the result, the plea made by the leaned Government Advocate (Criminal Side) to review the order passed by this court against the spirit of section 362 of the Code of Criminal Procedure merits no consideration and therefore, his plea for review stands rejected.
ssk.
To
1. The Inspector of Police, Pallikaranai Police Station, Chennai.
2.The Public Prosecutor, High Court, Madras.