Calcutta High Court (Appellete Side)
For The vs Harbhajan Singh on 15 November, 2018
Author: Protik Prakash Banerjee
Bench: Protik Prakash Banerjee
1 15.11.20181
jb.
C.R.R. No. 3259 of 2018 (In re: Sujit Mondal -v- State & Anr.) Re: An application under Section 401 read with Section 482 of the Code of Criminal Procedure;
Mr. Debashis Roy Mr. Pinaki Bhattacharyya Mr. Sanjay Banerjee Mr. Amit Pan .... For the Petitioner Mr. Kishore Datta Learned Advocate General Mr. Saswata Gopal Mukherjee Learned Public Prosecutor Mr. Rana Mukherjee Learned Additional Public Prosecutor .... For the State I had passed an order on November 1, 2018 in the above matter. The reasons for passing of the order would appear from it. The order had been passed but before it was transcribed, and after the learned counsel for the petitioner had left the court room, Mr. Rana Mukherjee, learned advocate and Additional Public Prosecutor mentioned the matter seeking that I recall the above order because according to him, certain material facts apparent on the face of the records were not placed before me by the learned counsel for the petitioner, though these were part of the order dated October 11, 2018. He submitted, respectfully, that due to the tremendous chaos attending the vacation bench, and the haste 2 in which the matter was being heard, these pages in the petition which were not placed before the Court, had escaped my notice. He submitted that he also had not been instructed until he mentioned the matter, to appear or intervene. I granted liberty to him to come back with the learned counsel for the petitioner, since it was not possible for me to recall an order passed in open court after I had passed it, when the petitioner's learned advocate who was present had left, in the absence of the learned advocate for the petitioner. He could not do so, and before I rose at 7:15pm he mentioned the matter again. Accordingly, I had directed let the present matter be listed before me as "To Be Mentioned (Correction/Recall)"on November 15, 2018, at the first sitting of the court and as the first item, regardless of part heard, to be mentioned or any other matter.
Today the matter has come up as "To Be Mentioned" pursuant to the above direction.
Learned Advocate General ably assisted by the learned Public Prosecutor and the learned Additional Public Prosecutor with their respective juniors have made three fold submissions:- 3
i) No urgency was pleaded in the body of the petition which would allow the same to be moved during the vacation as an urgent matter;
ii) No service was effected on the State nor was any case made out that service would cause irreparable injury or mischief to the petitioner;
iii) No service has been effected even today on the State.
On a query from the Court as to whether Chapter XI of the Appellate Side Rules requires service of an application under Section 482 of the Code of Criminal Procedure as a condition precedent for the same to be moved where the offences are not alleged to have been committed under any statute which requires that the Public Prosecutor/Prosecuting Agency be heard, Mr. Debasish Roy, learned senior advocate appearing for the petitioner has submitted that there is no such requirement to serve the State and that in terms of my order dated November 1, 2018 time to effect service has not yet passed. However, he has not been able to satisfy that urgency was pleaded in the petition.
Be that as it may, Mr. Roy, learned senior counsel appearing on behalf of the petitioner has taken a preliminary point so far as the recalling of the order passed by me on November 1, 2018 is 4 concerned. He submits that in view of the provisions of Section 362 of the Code of Criminal Procedure, 1973 (as amended) this Court has no power to alter its order/judgement once it has been pronounced and signed even by way of review excepting for correcting arithmetical mistake or typographical error. In support of his contention he relies upon the statutory provisions and two judgements of the Hon'ble Supreme Court.
Section 362 reads as under:
" 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."
The first judgment on which Mr. Roy, learned counsel has relied upon is of Bench strength three being the case of State of Kerala -v- M. M. Manikanta Nair reported in AIR 2001 Supreme Court 2145. However, the paragraph '7' of the said judgment reads as follows:-
"7. This court in Hari Singh Mann versus Harbhajan Singh Bajwa & Ors. [2001 (1) SCC 169] held that Section 362 of the 5 Criminal Procedure 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 and that this 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 the court of competent jurisdiction."
The second judgement relied upon by Mr. Roy, learned counsel is in the case of Mohammed Zakir -v- Shabana and Others reported in 2018(3) Crimes 491 (SC). Paragraph '4' therein however, reads as follows:-
"4. The High Court should not have exercised the power Under Section 362 Code of Criminal Procedure for a correction on merits. However patently erroneous the earlier order be, it can only be corrected in the process known to law and not Under Section 362 Code of Criminal Procedure. The whole purpose of Section 362 Code of Criminal Procedure is only to correct a clerical or arithmetical error. What the High Court sought to do in the impugned order is not to correct a clerical or arithmetical error; it sought to rehear the matter on merits, since, according to the learned Judge, the earlier order was 6 patently erroneous. That is impermissible under law. Accordingly, we set aside the impugned order dated 28.04.2017."
On the basis of the aforesaid, Mr. Roy submits that even if I had passed a wholly erroneous order or an order which contains patent errors, I cannot recall the order. The only remedy for the State or any person aggrieved thereof would be to move the Hon'ble Supreme Court or to seek vacating the order by an application before this Court.
In response to the said submission, learned Advocate General submits that on the face of the statutory provision it appears that it refers to judgement or final order disposing of a case. He relies upon the law laid down by the Apex Court at paragraph '7' in the case of State of Kerala -v- M. M. Manikanta Nair (supra) and submits that being of Bench strength three this is an authoritative exposition of law on the subject. Since by the order dated November 1, 2018 I had not finally disposed of the matter, he submits that this Court retains sufficient jurisdiction to recall the order if it chooses to do so on any ground apart from error of law.
7There is an additional fact, which I must record that is the submission of Mr. Roy, learned counsel for the petitioner. It appears that from the same criminal case an application under Section 438 of the Code of Criminal Procedure was taken out by another accused. In such matter learned Additional Public Prosecutor, Mr. Rana Mukherjee had appeared on behalf of the petitioner. Mr. Roy submits that in such view of the matter, I should not have taken countenance of Mr. Mukherjee's submissions because of possible conflict of interests. I have referred to the above not to reach to a conclusion as to conflict of interests but to point out the similar embarrassment which I have in the present matter as disclosed and which was not disclosed before me at the time when I passed the said order during the vacation Bench that the co-accused who had moved the Hon'ble Supreme Court and obtained an interim order as referred to in page '49' of the petition which inspired the present petitioner to move this Court was a person who was my lay client whom I had represented being instructed by the learned advocate on record in a Election Commission matter a few years back before my elevation. Though it has nothing to do with the present criminal case, had this been brought to my notice, I would surely have recused myself then and there and not taken up the matter 8 during vacation. Accordingly, I feel justice would be sub-served if today I recall the order dated November 1, 2018 passed in the matter and release it from my list such that the petitioner after service on the State can take appropriate steps both for assignment and for getting the matter to be heard. I also record Mr. Roy's submission that an appeal by special leave has been preferred against the order of the Hon'ble Division Bench by which the prayer for anticipatory bail had been rejected by this Court. The order dated November 1, 2018 thus stands recalled and the matter is released from my list.
Criminal Section is directed to serve certified copy of the order to the parties on urgent basis.
(Protik Prakash Banerjee, J.) 9