Patna High Court - Orders
Prem Kumar Agrawal vs The State Of Bihar & Ors on 29 August, 2014
Author: Aditya Kumar Trivedi
Bench: Aditya Kumar Trivedi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Criminal Miscellaneous No.30452 of 2013
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Prem Kumar Agrawal, S/o Kedar Nath Agrawal, Resident of Ramesh Jha
Road, Gangjala, Saharsa, Presenlty Residing At Nilam Bombay Dying,
D.B. Road, Saharsa.
.... .... Petitioner/s
Versus
1. The State of Bihar
2. Shishu Nag Gupta, S/o Late Nand Kishore Gupta Resident of Kechahri
Dhala, Police Station- Saharsa Sadar, District- Saharsa
3. Deepak Kumar Gupta @ Deepak Gupta, S/o Late Nand Kishore
Gupta Resident of Kechahri Dhala, Police Station- Saharsa Sadar,
District-Saharsa
4. Saroj Devi, W/o Deepak Kumar Gupta Resident of Kechahri Dhala,
Police Station- Saharsa Sadar, District- Saharsa
5. Namita Shankar, W/o Shishu Nag Gupta Resident of Kechahri Dhala,
Police Station- Saharsa Sadar, District- Saharsa
.... .... Opposite Party/s
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Appearance :
For the Petitioner/s : Mr. S. K. Singh-Advocate
For the Opposite Party/s : Mrs. Nirmala Kumari-A.P.P.
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CORAM: HONOURABLE MR. JUSTICE ADITYA KUMAR TRIVEDI
CAV ORDER
09 29-08-2014In order to appreciate the factual as well as legal aspect involved in this petition, brief facts, is to be taken first.
(a) Cr. Misc. no.41892 of 2010 was filed by Shishu Nag Gupta, Deepak Kumar Gupta @ Deepak Gupta, Saroj Devi and Namita Shankar, who have been arrayed as an accused in connection with Saharsa P. S. Case no.186 of 2009 challenging the order dated 25.03.2010, passed by the learned Chief Judicial Magistrate, Saharsa, taking cognizance of an offence under Section 307 of the I.P.C. along with other allied Sections and 2 directed the petitioners to face trial therefor. The aforesaid petition was filed on 22.11.2010 and subsequently, was heard and disposed of having been allowed in part vide order dated 10.05.2012 with the following observation that "presence of prima facie case is suggestive of the fact that there has been scrutiny of the material placed in accordance with Section 173 Cr.P.C. through judicial approach to proceed with the trial. That means to say, there should have been proper scrutiny of the material which could justify the step taken up by the trial court. From the order impugned, it is evident that the learned lower court had not considered those aspect to justify at least application of Section 307 I.P.C., more particularly over allegation in consonance with the injury report. Therefore, the impugned order is modified to that extent. Consequent thereupon, instant petition is allowed in terms thereof".
(b) Subsequently thereof, petitioner Prem Kumar Agrawal (informant of Saharsa P. S. Case no.186 of 2009) has filed instant petition to nullify the order dated 10.05.2012 passed in Cr. Misc. no.41892 of 2010 on the ground that inspite he being informant of Saharsa (Town) P. S. Case no.186 of 2009, he has not been impleaded as opposite party. It has also been submitted that the petitioners of Cr. Misc. no.41892 of 2010 (Opposite Party 3 nos.2 to 5 of instant petition) had played fraud upon Court by concealing the fact that till then, the case was already committed to the Court of Sessions and the date on which the Cr. Misc. No.41892 of 2010 was heard, all the prosecution witnesses were examined, statement under Section 313 of the Cr.P.C. had already been recorded and after examining the DW, the defence case was also closed fixing the trial for hearing argument under Sessions Trial No.210 of 2010 pending before F.T.C.-IIIrd, Saharsa.
(c) It has further been averred that appreciation of facts as well as application of judicial mind varies stage to stage. Had there been divulgence of the fact that defence case had already been closed and the matter is pending for argument before the learned trial Court, then in that event, certainly the Cr. Misc. no.41892 of 2010 would not have disposed of as per finding recorded under para-10 of the order dated 10.05.2012. As such, there has been intentionally, knowingly concealment of fact with ulterior motive and by such dubious activity, the order has been obtained from the Court by playing fraud and on account thereof, the order dated 10.05.2012 passed in Cr. Misc. no.41892 of 2010 is fit to be recalled/ modified/ rescind/ strailed.
2. Petitioners of Cr. Misc. no.41892 of 2010, who are opposite party nos.2 to 5 of instant petition were noticed and 4 they appeared, filed counter affidavit and contested the same. As per the pleading of the opposite party, certified copy of order of cognizance was obtained while the case was pending before the Sessions Court after commitment and on account thereof, they were of the view that this fact would be automatically taken into consideration. Moreover, the same was disclosed to the earlier engaged counsel and it was mistake on his part in getting the fact leftout. Therefore, neither there was intentional laches on the part of O.P. nos. 2 to 5 nor concealment of fact. It has also been submitted that opposite party have acted fairly as well as came up with clean hand and on account thereof, the order dated 10.05.2012 passed in Cr. Misc. no.41892 of 2010 attracts no interference.
3. It has been submitted on behalf of petitioner that whenever party comes before the Court asking for particular relief, it is expected at his end to aver his pleading correctly and in likewise manner to make submission so that court should scrutinize the matter and appreciate the same and give its finding logical thereto in its correct appreciation. Concealment of necessary fact that too intentional one as, the opposite party nos.2 to 5 have their appearance before the Sessions Court even before filing of Cr. Misc. No.41892 of 2010 at least would have enabled 5 the Court to know that after having been committed, the case is pending before the Court of Sessions. It has further been submitted that the day on which Cr. Misc. no.41892 of 2010 was heard, the defence case was already closed and the Sessions Trial was fixed for argument. After examination of witnesses, now, the evidences having on the record is to be taken into consideration for the purpose of deciding the trial by way of pronouncing judgment. That being so, the order of cognizance is found left far behind having no relevance, because of the fact that the order of cognizance, ordinarily, so far as police case is concerned, is based upon the material submitted by the police in terms of Section 173 of the Cr.P.C. while the judgment relating to Sessions Trial happens to be based upon appreciation of evidence led by the prosecution as well as defence in terms of Chapter-XVIII of the Cr.P.C. Had there been non-concealment of aforesaid fact, then in that event, certainly the order dated 10.05.2012 would not have been passed.
4. Therefore, it has been submitted that there was wilful, intentional act of opposite party nos.2 to 5, whereunder they concealed the aforesaid factual as well as legal event and their action denote the act of fraud whereunder they succeeded in getting the order dated 10.05.2012 in connection with Cr. Misc. 6 no.41892 of 2010. To justify his submission, learned counsel for the petitioner relied upon 2011 (14) SCC 770. The learned Additional Public Prosecutor followed the submission.
5. On the other end, the learned counsel for the opposite party nos.2 to 5 have resisted the submission raised on behalf of petitioner stating the fact that informant is not a necessary party to be impleaded whenever an order is subject to challenge before the Superior Court relating to Police case. Therefore, petitioner rightly not been impleaded as a party. Then, it has been submitted that opposite party nos.2 to 5 are lay litigants having no access to law and on account thereof, could not perceive its impact although had disclosed the learned counsel regarding stage of the case. Opposite party nos.2 to 5 in the aforesaid background were convinced that the stage of the trial certainly been incorporated and detailed by his conducting counsel. Any deficiency on that very score could not be treated as wilful, intentional act of opposite party nos.2 to 5 rather it was at the end of the conducting lawyer and for that Opposite party nos.2 to 5 could not be penalized.
6. Moreover, referring Section 362 of the Cr.P.C., it has been submitted that once the Criminal Court including the High Court delivers judgment then in that event the aforesaid 7 judgment goes out of purview of the Court, because of the fact that Court ceases to be in seisin of the matter. Save and except correcting the same to the extent as provided thereunder. Not only this, the judgment, even if found to be obtained by means of fraud cannot be adjudicated upon by the same Court rather the grievances, if any, is to be redressed by way of filing appeal/ revision before the Superior Court and for that referred 2009 Cr.L.J. Page-355. So submitted that instead of filing instant petition, petitioner should have moved before the Hon'ble Apex Court.
7. Record of Cr. Misc. No.41892 of 2010 is available. After going through the contents of the petition which run upto 15 Paragraphs, it is apparent there from that save and except, challenging the order of cognizance and the grounds therefor neither the pendency of the case has been detailed nor the stage of the case. It is also evident there from that informant has not been impleaded as a party.
8. Neither in Criminal Law nor in Civil Law prescribes any form of guidelines regarding conduct of the parties who wish to came before the Court for adjudication. However, the aforesaid theme has been perceived by the Hon'ble Apex Court in S. P. Chengalvaraya Naidu v. Jagannath reported in 1994 8 AIR SC Page-853, wherein it has been held:-
7. ―The High Court, in our view, fell into patent error. The short question before the High Court was whether in the facts and circumstances of this case, Jagannath obtained the preliminary decree by playing fraud on the court. The High Court, however, went haywire and made observations which are wholly perverse. We do not agree with the High Court that "there is no legal duty cast upon the plaintiff to come to Court with a true case and prove it by true evidence". The principle of "finality of litigation" cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.
The courts of law are meant for imparting justice between the parties. One who comes to the court, must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property-grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the, illegal-gains indefinitely. We have no hesitation to say that a person whose case is based on falsehood, has no right to approach the Court. He can be summarily 9 thrown out at any stage of the litigation‖. That means to say party is under obligation to come with clean hands be fair and being so, the opposite party nos.2 to 5 while approaching this Court Cr. Misc. No.41892 of 2010 must have narrated at least the stage of the case. It is needless to say that application of judicial mind differs from stage to stage. That means to say the mode of appreciation of materials at the stage of taking cognizance is different from the stage of appreciation of materials at the stage of framing of charge, appreciation of evidence during course of trial is different at the stage of pronouncement of judgment. The statement recorded under Section 161 of the Cr.P.C. has got no relevance during course of conduction of trial, save and except, for the purpose of corroboration or contradiction and at the time of delivering judgment, the appreciation of the evidence adduced during course of trial happens to be the main issue for consideration being the substantive evidence. Opposite party nos.2 to 5 have not challenged that the day on which the order dated 10.05.2012 was passed in connection with Cr. Misc. no.41892 of 2010, the trial was fixed for argument after closure of the defence case. In the aforesaid background, it is apparent that there happens to be intentional concealment of the fact by Opposite party nos.2 to 5 at 10 their hands as well as on account thereof, misrepresented before the Bench regarding the actual affair by such activity. Opposite party nos.2 to 5 kept the Court in dark as well as duped the Court, whereunder succeeded in snatching the order dated 10.05.2012 under Cr. Misc. no.41892 of 2010.
9. The effect of fraud and its impact as well as the remedy has been considered by the Hon'ble Apex Court in the S. P. Chengalvaraya Naidu v. Jagannath reported in 1994 AIR SC Page-853 (Supra) in following terms:-
Para ―1. Fraud-avoids all judicial acts, ecclesiastical or temporal‖ observed Chief Justice Edward Coke of England about three centuries ago. It is the settled proposition of law that a judgment or decree obtained by playing fraud on the court is a nullity and non est in the eyes of law. Such a judgment/ decree - by the first court or by the highest court - has to be treated as a nullity by every court, whether superior or inferior. It can be challenged in any court even in collateral proceedings‖.
10. In Patel Bhagubhai Ranchhodas v. Bai Arvinda reported in A.I.R.1937 Calcutta Page-334, it has been held:-
―that it appears that this order cancelling the 11 previous order for maintenance was really obtained by fraud upon the Magistrate in his not being apprised on that date that the decree for restitution of conjugal rights was liable to be set aside by the District Judge of Ahmedabad on appeal which was then pending before him and an order obtained by fraud must be treated as having no legal effect‖.
11. In Nalluswami Reddi v. Nallammal reported in A.I.R. (30) 1943 Madras Page-392, it has been held as ―No Court subordinate to the High Court has any inherent jurisdiction to review its own judgment save in a few circumstances such as where there has been abuse of the process of Court, or fraud played upon the Court, or where petty clerical errors or mistakes have been made‖.
12. In A. V. Papayya Sastry and others v.
Government of A. P. and others reported in (2007) 4 SCC Page-221, it has been held:-
"21. Now, it is well-settled principle of law that if any judgment or order is obtained by fraud, it cannot be said to be a judgment or order in law. Before three centuries, Chief Justice Edward Coke proclaimed:
―Fraud avoids all judicial acts, ecclesiastical or temporal.‖ 12
22. It is thus settled proposition of law that a judgment, decree or order obtained by playing fraud on the court, tribunal or authority is a nullity and non est in the eye of the law. Such a judgment, decree or order--by the first court or by the final court--has to be treated as nullity by every court, superior or inferior. It can be challenged in any court, at any time, in appeal, revision, writ or even in collateral proceedings.
23. In the leading case of Lazarus Estates Ltd. v. Beasley (1956)1 All ER 341: (1956) 1 QB 702: (1956)2 WLR 502 (CA) Lord Denning observed: (All ER p. 345 C) ―No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud.‖
24. In Duchess of Kingstone, Smith's Leading Cases, 13th Edn., p. 644, explaining the nature of fraud, de Grey, C.J. stated that though a judgment would be res judicata and not impeachable from within, it might be impeachable from without. In other words, though it is not permissible to show that the court was ―mistaken‖, it might be shown that it was ―misled‖. There is an essential distinction between mistake and trickery. 13
The clear implication of the distinction is that an action to set aside a judgment cannot be brought on the ground that it has been decided wrongly, namely, that on the merits, the decision was one which should not have been rendered, but it can be set aside, if the court was imposed upon or tricked into giving the judgment.
25. It has been said: fraud and justice never dwell together (fraus et jus nunquam cohabitant); or fraud and deceit ought to benefit none (fraus et dolus nemini patrocinari debent).
26. Fraud may be defined as an act of deliberate deception with the design of securing some unfair or undeserved benefit by taking undue advantage of another. In fraud one gains at the loss of another. Even most solemn proceedings stand vitiated if they are actuated by fraud. Fraud is thus an extrinsic collateral act which vitiates all judicial acts, whether in rem or in personam. The principle of ―finality of litigation‖ cannot be stretched to the extent of an absurdity that it can be utilised as an engine of oppression by dishonest and fraudulent litigants.
27. In S.P. Chengalvaraya Naidu v.
Jagannath (1994) 1 SCC 1 this Court had an 14 occasion to consider the doctrine of fraud and the effect thereof on the judgment obtained by a party. In that case, one A by a registered deed, relinquished all his rights in the suit property in favour of C who sold the property to B. Without disclosing that fact, A filed a suit for possession against B and obtained preliminary decree. During the pendency of an application for final decree, B came to know about the fact of release deed by A in favour of C. He, therefore, contended that the decree was obtained by playing fraud on the court and was a nullity. The trial court upheld the contention and dismissed the application. The High Court, however, set aside the order of the trial court, observing that ―there is no legal duty cast upon the plaintiff to come to court with a true case and prove it by true evidence‖. B approached this Court.
28. Allowing the appeal, setting aside the judgment of the High Court and describing the observations of the High Court as ―wholly perverse‖, Kuldip Singh, J. stated: (SCC p. 5, para
5) ―The courts of law are meant for imparting justice between the parties. One who comes to the court, 15 must come with clean hands. We are constrained to say that more often than not, process of the court is being abused. Property grabbers, tax-evaders, bank-loan-dodgers and other unscrupulous persons from all walks of life find the court process a convenient lever to retain the illegal gains indefinitely. We have no hesitation to say that a person, whose case is based on falsehood, has no right to approach the court. He can be summarily thrown out at any stage of the litigation.‖ (emphasis supplied)
29. The Court proceeded to state: (SCC p. 5, para 6) ―A litigant, who approaches the court, is bound to produce all the documents executed by him which are relevant to the litigation. If he withholds a vital document in order to gain advantage on the other side then he would be guilty of playing fraud on the court as well as on the opposite party.‖
30. The Court concluded: (SCC p. 5, para 5) ―The principle of ‗finality of litigation' cannot be pressed to the extent of such an absurdity that it becomes an engine of fraud in the hands of dishonest litigants.‖ 16
31. In Indian Bank v. Satyam Fibres (India) (P) Ltd.(1996) 5 SCC 550: JT 1996 (7) SC 135 referring to Lazarus Estates Lazarus Estates Ltd. V. Beasley, (1956) 1 All ER 341 : (1956) 1 QB 702: (1956) 2 WLR 502 (CA) and Smith v. East Elloe Rural Distt. Council 1956 AC 336: (1956) 1 All ER 855: (1956) 2 WLR 888 (HL) this Court stated: (SCC pp. 562-63, para 22) ―22. The judiciary in India also possesses inherent power, specially under Section 151 CPC, to recall its judgment or order if it is obtained by fraud on court. In the case of fraud on a party to the suit or proceedings, the court may direct the affected party to file a separate suit for setting aside the decree obtained by fraud. Inherent powers are powers which are resident in all courts, especially of superior jurisdiction. These powers spring not from legislation but from the nature and the constitution of the tribunals or courts themselves so as to enable them to maintain their dignity, secure obedience to its process and rules, protect its officers from indignity and wrong and to punish unseemly behaviour. This power is necessary for the orderly administration of the court's business.‖ (emphasis supplied) 17
32. In United India Insurance Co. Ltd.
v. Rajendra Singh (2000) 3 SCC 581: 2000 SCC (Cri) 726: JT (2000) 3 SC 151 by practising fraud upon the Insurance Company, the claimant obtained an award of compensation from the Motor Accident Claims Tribunal. On coming to know of fraud, the Insurance Company applied for recalling of the award. The Tribunal, however, dismissed the petition on the ground that it had no power to review its own award. The High Court confirmed the order. The Company approached this Court.
33. Allowing the appeal and setting aside the orders, this Court stated: (SCC pp. 587- 88, paras 15-17) ―15. It is unrealistic to expect the appellant Company to resist a claim at the first instance on the basis of the fraud because the appellant Company had at that stage no knowledge about the fraud allegedly played by the claimants. If the Insurance Company comes to know of any dubious concoction having been made with the sinister object of extracting a claim for compensation, and if by that time the award was already passed, it would not be possible for the Company to file a statutory appeal against the award. Not only because of the 18 bar of limitation to file the appeal but the consideration of the appeal even if the delay could be condoned, would be limited to the issues formulated from the pleadings made till then.
16. Therefore, we have no doubt that the remedy to move for recalling the order on the basis of the newly-discovered facts amounting to fraud of high degree, cannot be foreclosed in such a situation. No court or tribunal can be regarded as powerless to recall its own order if it is convinced that the order was wangled through fraud or misrepresentation of such a dimension as would affect the very basis of the claim.
17. The allegation made by the appellant Insurance Company, that the claimants were not involved in the accident which they described in the claim petitions, cannot be brushed aside without further probe into the matter, for the said allegation has not been specifically denied by the claimants when they were called upon to file objections to the applications for recalling of the awards. The claimants then confined their resistance to the plea that the application for recall is not legally maintainable. Therefore, we strongly feel that the claim must be allowed to be resisted, on the ground 19 of fraud now alleged by the Insurance Company. If we fail to afford to the Insurance Company an opportunity to substantiate their contentions it might certainly lead to a serious miscarriage of justice.‖ (emphasis supplied)
46. Keeping in view totality of facts and attending circumstances including serious allegations of fraud said to have been committed by the landowners in collusion with officers of the respondent Port Trust and the Government, report submitted by the Central Bureau of Investigation (CBI), prima facie showing commission of fraud and initiation of criminal proceedings, etc. if the High Court was pleased to recall the earlier order by issuing directions to the authorities to pass an appropriate order afresh in accordance with law, it cannot be said that there is miscarriage of justice which calls for interference in exercise of discretionary and equitable jurisdiction of this Court. We, therefore, hold that this is not a fit case which calls for our intervention under Article 136 of the Constitution. We, therefore, decline to do so‖.
13. In Deepa Gourang Murdeshwar Katre v.
20Principal, V.A.V. College of Arts and others reported in (2007) 14 SCC 108, it has been observed that:-
"33. It is well settled by a catena of decisions of this Court that if a case of fraud or misrepresentation of such a dimension is discovered that the very basis of the order passed by a court of law is affected, the court can recall its order. The power to recall an order founded upon fraud and misrepresentation is an inherent power of the court.
34. The present case is one such instance where the High Court has been misled by incorrect representations made by the University at the time of hearing of the writ petition and the review petition. The question was whether the post occupied by the appellant was entitled to be dereserved as for six years no Backward Class candidate was available‖.
14. In R. Rajeshwari v. H. N. Jagadish reported in (2008) 4 SCC Page-82, it has been observed as:-
15. In view of the aforementioned specific bar created in regard to exercise of the jurisdiction of the High Court to review its own order, we are of the opinion that ordinarily exercise of jurisdiction under Section 482 of the Code of Criminal 21 Procedure would be unwarranted. We assume that in some rare cases, the High Court may do so where a judgment has been obtained from it by practising fraud but it does not appear that such a case has been made out. The appellant did not make any complaint against her lawyer. She did not even implead her lawyer as a party. The affidavit affirmed in support of the application verified as under:
―That the averments made in Paras 1 to 8 of the accompanying application are true and correct to the best of my knowledge, belief and information.‖ Verification of such an affidavit affirmed in support of an application containing serious allegations against a member of a profession is wholly unwarranted.
15. In Vishnu Agarwal v. State of Uttar Pradesh and another reported in (2011) 14 SCC Page-813, it has been observed as:-
4. The learned counsel for the appellant has relied on the decision of this Court in Hari Singh Mann v. Harbhajan Singh Bajwa1, SCC para 10 of the said judgment states: (SCC p. 175) ―10. Section 362 of the Code mandates that no 22 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. The reliance of the respondent on Talab Haji Hussain case Talab Haji Hussain v. Madhukar Purshottom Mondkar, AIR 1958 SC 376: 1958 Cri LJ 701 is misconceived. Even in that case it was pointed that inherent powers conferred on the High Courts under Section 561-A of CrPC, 1898 (Section 482 of the new Code) have 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 23 Section 482 of the 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.‖
5. The learned counsel for the appellant Mr Manoj Swarup submitted that in view of the aforesaid decision, the High Court erred in law in recalling the order dated 2-9-2003. We regret we cannot agree.
6. In our opinion, Section 362 cannot be considered in a rigid and overtechnical manner to defeat the ends of justice. As Brahaspati has observed:
―Kevalam shastram ashritya na kartavyo vinirnayah yuktiheeney vichare tu dharmahaani prajayate‖ which means:
―The court should not give its decision based only on the letter of the law.
For if the decision is wholly unreasonable, injustice will follow.‖ 24
7. 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 Kar v. State of W.B.3 this Court made a distinction between recall and review which is as under: (SCC p. 705, paras 6-7) ―6. There is a distinction between ... a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party.
7. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Excise Licensees' Assn. v. Raghabendra Singh (2007) 11 SCC 374 cancelling certain licences was passed without giving an opportunity of hearing to the persons who had been granted licences.‖
8. Hence, we see no error in the impugned order passed by the High Court. The appeal fails and is accordingly dismissed.
25
Criminal Appeal No. 875 of 2006.
16. In State of Punjab v. Davinder Pal Singh Bhullar and others with Sumedh Singh Saini v. Davinder Pal Singh Bhullar and others reported in (2011) 14 SCC 770, it has been observed as:-
"46. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 CrPC would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide Chitawan v. Mahboob Ilahi 1970 Cri LJ 378 (All), Deepak Thanwardas Balwani v. State of Maharashtra 1985 Cri LJ 23 26 (Bom), Habu v. State of Rajasthan AIR 1987 Raj 83, Swarth Mahto v. Dharmdeo Narain Singh (1972) 2 SCC 273: 1972 SCC (Cri) 676, Makkapati Nagaswara Sastri v. S.S. Satyanarayan (1981) 1 SCC 62: 1981 SCC (Cri) 111, Asit Kumar Kar v. State of W.B. (2009) 2 SCC 703: (2009) 1 SCC (Cri) 851: (2009) 1 SCC (L&S) 541 and Vishnu Agarwal v. State of U.P. (2011) 14 SCC
813)‖.
17. The learned counsel for the Opposite party nos.2 to 5 has referred State represented by DSPSBSC Vrs. K. R. reported in 2009 Cri. L.J. 355 and submitted that the Criminal Court has got no power to review or recall its own order after having it pronounced. Gone through the decision and same is found not applicable in the present case, because of the fact that in the aforesaid decision the theme of fraud was not under subjugation.
18. Hence, after scrutiny of the judicial pronouncement as referred above, it is evident that the Court has got power to recall the judgment, which has been obtained by playing fraud. As stated above, the Opposite party nos.2 to 5 have duped the Court during presentation of Cr. Misc. no.41892 of 2010 and got the order dated 10.05.2012 by playing fraud. 27
Concealing the fact that at that very crucial moment, the defence case was already closed and trial was pending for argument.
19. Consequent thereupon, the order dated 10.05.2012 passed in Cr. Misc. no.41892 of 2010 is recalled. Cr. Misc. no.30452 of 2013 is allowed.
(Aditya Kumar Trivedi, J) Vikash/-
U T