Madhya Pradesh High Court
Gopal Chand Batham vs Lavkesh Sharma on 8 July, 2014
1
M.Cr.C.No.4511/2012
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SINGLE BENCH:
(HON. SHRI JUSTICE D.K. PALIWAL)
M.Cr.C.No.4511/2012
Gopal Chand Batham
Versus
Lavkesh Sharma and another
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Shri M.P.Sharma, Advocate for the petitioner.
Shri Purushottam Sharma, Advocate for the respondents.
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ORDER
(08/07/2014) This petition has been filed under Section 482 of Cr.P.C. for setting aside the order passed in M.Cr.C. No.2980/2008 on 18.5.2012, whereby this Court has dismissed the petition filed under Section 482 of Cr.P.C. seeking issuance of process against the respondents by setting aside the order passed by JMFC, Gwalior in Case No.0/2007 and in Cri.Case No.382/2007 and restoring M.Cr.C.No.2980/2008.
2. Brief facts are that the petitioner has filed a private complaint against the respondents before JMFC, Gwalior alleging that he has purchased the iron grills from Hindustan Agro Fabrication for the purpose of his house situated at Krishnapuri, Morar. One piece was put on Chhajja. Four pieces were kept on the Chhajja alongwith iron sheet and a sign board. The respondents took away the aforesaid grill, iron sheet and sign board. When petitioner asked then they started quarelling. Respondent No.2 threatened to kill him. A written complaint was made but no action was taken by the Police, then petitioner has 2 M.Cr.C.No.4511/2012 preferred a private complaint. Learned Magistrate has dismissed the complaint vide order dated 16.8.2007 against which criminal revision was preferred which was also dismissed vide order dated 23.11.2007. Thereafter, the petitioner has preferred a petition under Section 482 of Cr.P.C., which has been registered as M.Cr.C.No.2980/2008 and has been disposed of vide order dated 18.5.2012.
3. The petitioner is seeking relief for setting aside of the order passed by this Court and restoration of the aforesaid M.Cr.C.No.2980/2008 submitting that while passing the order the submissions of learned counsel for the petitioner has been overlooked. It is further submitted that counsel for the petitioner has submitted that the learned Magistrate has cross-examined the petitioner-complainant, which is not permissible. Similarly, the learned Magistrate has committed an error in holding that sale deed and affidavit have been forged. It is further submitted that there is no need to examine all the witnesses for registration of the private complaint. It is further submitted that three case laws were cited, but they have not bee considered. It is further submitted that other submissions were also not considered.
4. Learned counsel appearing for the respondents has submitted that this Court cannot review its own order. If the petitioner is aggrieved with the order passed by this Court, then he has to approach the superior Court. Hence prayed for dismissal of the petition.
5. I have considered the submissions of the learned counsel and perused the record. It is not disputed that the private complaint preferred by the petitioner was dismissed by the 3 M.Cr.C.No.4511/2012 learned Magistrate and criminal revision preferred by the petitioner against it was also dismissed. It is also not disputed that petitioner preferred a petition under Section 482 of Cr.P.C., which was registered as M.Cr.C.No.2980/2008 for quashing the aforesaid orders, which has been dismissed vide order dated 18.5.2012. The petitioner is praying for setting aside of the order passed by this Court. There is no provision in Cr.P.C. to review the order. Review is prohibited under Section 362 of Cr.P.C. Section 362 of Cr.P.C. reads as under. :-
"S. 362. 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."
6. From bare reading of the aforesaid provision it is crystal clear that it prohibits the Court from altering or revising any judgment or final order disposing of a case after it has been signed except for the purpose of correction of clerical or arithmetical error. As soon as the judgment or order has been signed it becomes final and the Court is functus officio. The Code of Criminal Procedure does not authorize the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. This prohibition is complete. The provision of Section 362 of Cr.P.C. are based on the acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in absence of any statutory provision, becomes functus officio and is not authorized to entertain a fresh prayer for the same relief unless the former order is set aside by a Court of competent jurisdiction in the manner prescribed by law.
4M.Cr.C.No.4511/2012
7. Learned counsel for the petitioner has submitted that the order can be recalled. He has placed reliance on a decision of this Court in the case of Banwari & Ors. Vs. State of M.P.& Anr., reported in 2013 Cr.L.R.(M.P.) 321. In the aforesaid case the order was passed in absence of the petitioners, therefore, it was recalled and the petition was restored. In the instant case the order has been passed after hearing both the parties. The Hon'ble Apex Court in the case of Vishnu Agrawal Vs. State of U.P., reported in AIR 2011 SC 1232, while making distinction between the review or recalling the order held that recalll is not barred under Section 362 of Cr.P.C. and observed as under. :-
"3. It appears that the aforesaid Criminal Revision was listed in the High Court on 2.9.2003. No one appeared on behalf of the Revisionist, though the counsel for respondents appeared. In these circumstances, the judgment was passed.
4. Subsequently, an application was moved for recall of the Order dated 2.9.2003 alleging that the case was shown in the computer list and not in the main list of the High Court, and hence, the learned Counsel for the Revisionist had not noted the case and hence he did not appear.
5. It often happens that sometimes a case is not noted by the Counsel or or his clerk in the cause list, and hence, the Counsel does not appear. This is a human mistake and can happen to anyone. Hnece, the High Court recalled the order dated 2.9.2003 and directed the case to be listed for fresh hearing. The aforesaid order recalling the order dated 2.9.2003 has been challenged before us in this appeal. Learned Counsel for the appellant has relied on the decision of this Court in Hari Singh Mann Vs. Harbhajan Singh Bajwa, AIR 2001 SC 43, para 10 of the said judgment states :
"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 5 M.Cr.C.No.4511/2012 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 arithmetical error. The reliance of the respondent On Talab Haji Hussain's case (AIR 1958 SC 376) (supra) is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the Section itself. It is not disputed that the petition filed under Section 482 of Code had been finally disposed of by the High Court on 7.1.1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment." There can hardly be any dispute over the principle that an order made in the absence of a party without hearing him, when such order has been passed on merits and adversely affects his rights, may be recalled by this Court in exercise of its inherent powers under Section 482, Cr.P.C. However, the question in each case would be as to whether such a principle applies to the facts of a given case or not.
Apart from the above, we are of the opinion that the application filed by the respondent was an application for recall of the Order dated 2.9.2003 and not for review. In Asit Kumar Vs. State of West Bengal & Ors., 2009(1) SCR 469 : AIR 2009 SC (Supp.) 282, this Court made a distinction between recall and review which is as under:
"There is a distinction between........ a review petition and a recall petition. While in a review petition, the Court considers on merits whether there is an error apparent on the face of the record, in a recall petition the Court does not 6 M.Cr.C.No.4511/2012 go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association Vs. Raghabendra Singh & Ors., 2007 (11) SCC 374 : AIR 2007 SC 1386, cancelling certain licenses was passed without giving opportunity of hearing to the persons who had been granted licenses."
8. In the instant case, looking to the prayer of the petitioner, it cannot be said that the petitioner is seeking recall of the order. Considering that the petitioner is seeking setting aside of the order passed by this Court and restoring the petition for fresh consideration, which is not at all permissible and inherent powers under Section 482 of Cr.P.C. cannot be invoked. In view of the aforesaid discussion, the petition is bereft of merits and is hereby dismissed.
(D.K. Paliwal) Judge 08/07/2014 Patil