Karnataka High Court
Giridharilal And Ors. vs Pratap Rai Mehta And Anr. on 1 June, 1989
Equivalent citations: ILR1989KAR2491, 1989(2)KARLJ109
ORDER
1. This is a petition under S. 482 of the Code of Criminal Procedure (the Code for short). The petitioners have prayed to recall the order dated 4-11-1988 made by this Court in Criminal Revision Petition No. 398/88 and to quash the private complaint lodged by respondent-1 against them taken on file by the IV Addl. Chief Metropolitan Magistrate, Bangalore City in PCR No. 87/88.
2. On hearing Shri Santosh Hegde, learned senior Counsel for the petitioners, notice was directed to respondent-1 regarding admission and orders. Learned High Court Government Pleader was requested to assist the Court in examining the maintainability or otherwise of the petition.
3. The record is perused. The learned senior Counsel for the petitioners, learned Counsel for respondent No. 1 and the learned High Court Government Pleader are heard.
4. The question that arises for consideration and determination is :
(1) Whether the petition is maintainable ?
5. The facts relevant to be referred to and noticed are these :
Shri Pratap Rai Mehta, respondent-1, lodged a complaint against Giridharilal, Smt. Sonal J. Vora, Sri Dinesh G. Vora, Smt. Bina P. Vora and Sri Shashikant G. Vora, petitioners 1, 2, 3, 4 and 5 respectively, before the IV Additional Chief Metropolitan Magistrate, Bangalore City, alleging the commission of the offences punishable under sections 120-B, 465, 468, 477A, 403, 417 and 420 read with S. 34 of the Penal Code. The complaint, the copy of which is produced by the petitioners as Annexure-II to the petition, is dated 23-4-1988. Respondent-1 prayed the learned Magistrate to refer the complaint to the Circle Inspector of Police, Upparpet Police Station for investigation and report under S. 156(3) of the Code. In the alternative, he prayed the learned Magistrate to take cognizance of the offences alleged against the petitioners and to deal with them in accordance with law.
The learned Magistrate did not take the cognizance of the offences alleged. He referred the complaint to the jurisdictional police for investigation and report under S. 156(3) of the Code. The Police on completion of the investigation submitted a 'B' Summary Final Report stating that the controversy raised was of civil dispute in nature.
It appears from the record on receipt of the copy of the 'B' Summary Final Report submitted by the police, respondent-1 lodged a protest petition dated 22-8-1988, stating therein that no serious efforts had been made by the Police to investigate the complaint properly, that he had a good case to substantiate the offences alleged against the petitioners, that he had adequate oral as well as documentary evidence to prove the charges and that he would undertake to prove the charges. He prayed in the protest petition to reject the 'B' Summary Final Report.
6. The learned Magistrate thereafter took cognizance of the offences alleged against the petitioners, recorded the sworn statements of respondent No. 1 and his witness upon oath.
7. On consideration of the allegations made in the complaint, the statements made by respondent-1 and his witness on oath and the material collected by the police during the course of investigation the learned Magistrate dismissed the complaint by the order dated 15-10-1988 under S. 203 of the Code holding that there was no sufficient ground for proceeding against the petitioners.
8. Respondent-1 being dissatisfied with the order made by the learned Magistrate dismissing his complaint, file a Criminal Revision Petition in this Court in Criminal Revision Petition No. 398/88 under sections 397 and 401 of the Code. This Court when the petition came up for admission heard the learned Counsel for respondent No. 1 - the petitioner therein, allowed the Criminal Revision Petition and set aside the order of dismissal of the complaint. This Court remitted the matter to the learned Magistrate with a direction to make further enquiry and dispose of the complaint in accordance with law and in the light of the observations made in the order.
9. A reading of the order made by this Court produced as Annexure-I by the petitioners would disclose that this Court was persuaded to hold that the order dismissing the complaint was unsustainable in law since the procedure adopted by the learned Magistrate was not correct. This Court held that when the learned Magistrate had not followed any of the three courses indicated in the order in respect of the 'B' Summary Final Report submitted by the police, and that having proceeded to take cognizance of the offences on the original complaint on the basis of the protest memo filed by respondent-1 and having proceeded in accordance with the provisions contained in S. 200 of the Code, the material collected by the police during the course of investigation and produced along with B Summary Final Report was not available to pass an order under S. 203 of the Code and that the fact that the learned Magistrate looked into the said material to reach the opinion that there was no sufficient ground for proceeding against the petitioners vitiated the order of dismissal. It is the order dated 4-11-1989 made by this Court in Criminal Revision Petition No. 398/88 that is sought to be recalled and the complaint lodged by respondent-1 which now stands remitted to the learned Magistrate for disposal in accordance with law is sought to be quashed.
10. Learned Senior Counsel for the petitioners reading the provisions contained in S. 401(2) of the Code and the decision of a Full Bench of Rajasthan High Court (Jaipur Bench) in Habu v. State of Rajasthan, , strenuously submitted that the power of recall is different from the power of altering or reviewing the judgment or final order disposing of a case, that the powers under S. 482 of the Code can be exercised by the High Court for recalling the judgment or final order made in a case in which the hearing is not given to the accused or other person in which the accused or other person to the prejudice of whom, judgment or final order is passed, is not given opportunity of being heard either personally or by pleader in his own defence and that in such a situation the case would fall within one of the three conditions laid down in S. 482 of the Code. Elaborating he contended that having regard to the fact the petitioners were shown as accused persons in the private complaint dismissed by the learned Magistrate and that respondent 1 having impleaded them as respondents 1 to 5 in Criminal Revision Petition No. 398/88, this Court could not have made the order in exercise of its revisional jurisdiction to the prejudice of the petitioners without giving them an opportunity of being heard either personally or by pleader in their own defence. According to him the order made in non-compliance with the provisions contained in S. 401(2) of the Code which incorporates the principles of natural justice is void and ineffectual as far as the petitioners are concerned and that therefore the petitioners are entitled to get the order recalled and the Criminal Revision Petition being restored to file for disposal in accordance with law after affording them an opportunity of being heard either personally or by pleader in their own defence.
11. As against this, Sri M. V. Devaraju, learned Counsel for respondent 1 submitted that the petitioners did not acquire the character of accused persons in the private complaint lodged by respondent 1 since the same came to be dismissed by the learned Magistrate under S. 203 of the Code and that therefore they were not entitled to the opportunity of being heard in the Criminal Revision Petition. According to him, the disposal of the Criminal Revision Petition on merits at the admission stage allowing it by setting aside the order of dismissal and remitting the complaint for disposal in accordance with law is perfectly a valid order not offending the principles of natural justice and therefore it cannot be recalled as prayed for by the petitioners. He also submitted that the order dated 4-11-1988 is a judgment disposing of the case by this Court and that the provisions contained in S. 362 of the Code would operate as a bar for the grant of the prayer. According to further to him, the order made by this Court on 4-11-1988 is a legal and valid order and that it would be open to the petitioners to appear before the learned Magistrate when he takes up the private complaint for disposal in accordance with law and urge such points as would be available to them to urge and canvass for the dismissal of the complaint.
12. Section 362 of the Code reads :
"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".
13. The section is based on a universal principle of law that when a matter has been finally disposed of by a Court, the Court is, in the absence of a direct statutory provision, functus officio and it cannot entertain a fresh prayer for the same relief until and unless the former judgment or final order disposing of a case is set aside. It is this cardinal principle that has been incorporated in S. 362 of the Code.
14. The Supreme Court in a series of decisions has pronounced that S. 369 of the Code of Criminal Procedure, 1898, which corresponds to S. 362 of the Code is general in its application and prohibits all Court from altering or reviewing the judgment when once the judgments are signed.
15. In State of Orissa v. Ram Chander Agarwala, dealing with the scope and ambit of Sections 369, 424, 430 and 561-A of the Code of Criminal Procedure, 1898, (the Code of 1898 for short), the the Supreme Court held that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code of 1898 which would enable the High Court to review the same or to exercise revisional jurisdiction, that Sections 369 and 424 did not restrict the prohibition under S. 369 to the trial Court alone, that the purpose of S. 424 was to prescribe mode of delivering of judgment, the language and contents of the judgment while S. 369 was general in application prohibiting all Courts from altering or reviewing the judgments when once they are signed. The Supreme Court further held that S. 430 did not deal with the prohibition imposed S. 369 prohibiting the Court from altering or reviewing its judgment when once it has signed it and that provisions of S. 561-A cannot be invoked for exercise of a power which is specifically prohibited by the Code.
16. Section 482 of the Code provides :
"Saving of inherent powers of High Court - Nothing in this Code shall be deemed to limit or effect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
The Section envisages three circumstances in which the Court can exercise the inherent power, namely, when it is necessary to give effect to any order under the Code to prevent the abuse of the process of any Court and for securing the ends of justice. In view of the authoritative pronouncement of law by the Supreme Court in the case of State of Orissa v. Ram Chander Agarwala referred to supra, there appears to be no difficulty in holding that if the prayer made by the petitioners relates to altering or reviewing of the order dated 4-11-1988, then their petition would be incompetent and not maintainable. The question for consideration is whether the prayer is for alteration or review of the order dated 4-11-1988 coming within the purview of the inhibition stated in S. 362 of the Code.
17. The word "alter" has been defined in Black's Law Dictionary, Fifth Edition, 1979, as under :
"Alter : To make a change in; to modify; to vary in some degree; to change some of the elements or ingredients or details without substituting an entirely new thing or destroying the identity of the thing affected. To change partially. To change in one or more respects, but without destruction of existence or identity of the thing changed; to increase or diminish."
18. The word "review according to the said dictionary means :
"Review : To re-examine judicially or administratively. A reconsideration : second view or examination; revision; consideration for purposes of correction. Used especially of the examination of a cause by an appellate Court or appellate administrative body (e.g. Appeals Council in social security cases). See Appeal; Board of review; Rehearing; Retrial."
19. Keeping in view the meaning of the words 'alter' or 'review' if the prayer made by the petitioners in the petition is examined, it cannot be said that the petitioners either want the judgment dated 4-11-1988 to be altered or reviewed. What they want is to recall the order. The expression, 'to recall' a judgment as understood would be to revoke, cancel, vacate, or reverse a judgment for matters of fact. When a judgment is annuled by reason of errors of law, it is said to be reversed. (Vide Black's Law Dictionary, Fifth Edition).
20. It appears that there is vital and significant difference between the words 'alter', 'review' and recall.
21. Section 362 puts a complete bar for altering or reviewing of a judgment or final order on merits and the only power given to the Courts is that it can correct a clerical or arithmetical error. The said Section does not impose any prohibition for recalling an order.
22. When a judgment or final order is recalled it would result in complete abrogation as if there was no judgment or final order at all. The alteration or review pre-supposes continuing of the initial judgment or final order with the effectuation of some changes or re-examination and reconsideration of the judgment or final order.
23. There appears to be no bar contained in S. 362 or any other Sections of the Code for recalling an order.
24. In this view of the matter, it is my considered view that the grant of prayer made by the petitioners would not offend the salutary principle embodied in S. 362 of the Code.
25. It is the contention of the petitioners that the order dated 4-11-1988 passed in non-compliance with S. 401(2) of the Code needs to be recalled to secure the ends of justice and that therefore they can invoke the inherent jurisdiction of this Court.
26. In the case of Habu v. State of Rajasthan, a Full Bench of Rajasthan High Court while answering a reference wherein the question framed was :
"Whether the judgment given in absence of the appellant or his Counsel but the case decided on merits, can be recalled by the Court in its inherent powers under S. 482, Cr.P.C."
On an exhaustive review of the decisions of the Supreme Court and the various High Courts, held (at p. 101) :
"There are two available on the point. According to one view S. 362, Cr.P.C., has been held to be mandatory and puts complete bar and it has been therefore, held that S. 482, Cr.P.C., can also not be invoked for the purposes of reviewing or altering the judgment. The other view is that recalling is different than reviewing and altering and if the Court is of the opinion that gross injustice has been done, then S. 482, Cr.P.C. should be invoked to recall the judgment and rehear the case. In fact the earlier view has impliedly been done away with by their Lordships of the Supreme Court in Sankatha Singh's case, . Their Lordships have held that the appellate Court had no power to review or restore an appeal which has been disposed of under Ss. 424 and 369, Cr.P.C. (old). Similar was the view taken in State of Orissa v. Ram Chandra, . Sankatha Singh's case has been referred to in Sooraj Devi's case, , wherein also their Lordships have held that inherent powers cannot be invoked when there is a complete bar. Scope of S. 482, Cr.P.C. was then considered by their Lordships in Manohar Nathu Sao Samarth v. Marot Rao, . Thus on one side as mentioned above the principles which have been laid down by their Lordships of the Supreme Court can be summarised as under :-
1. That the powers to deal with the case must flow from the statute.
2. That the powers given under S. 362, Cr.P.C. (S. 369, Cr.P.C., old) given to the Court for reviewing or altering is limited only for correcting an arithmetical or clerical error and specifically prohibits Courts from touching the judgment by taking away the powers altering or reviewing the judgment or the final order and as such principle of functus officio has been accepted.
3. That the prohibition contained in S. 362, Cr.P.C. (S. 369, Cr.P.C. old) is not only restricted to the trial Court but also extends to appellate Court or the revisional Court.
4. That the inherent powers of the Court cannot be invoked where there is express prohibition and in other words S. 482, Cr.P.C. cannot be invoked.
As against this the analogical deduction which comes out from another set of cases is -
(i) Right of the accused to be heard is his valuable right which cannot be taken away by any provision of law,
(ii) If the accused has not been given an opportunity of being heard is not provided with the counsel when not duly represented it will be violative of principles of natural justice as well as Art. 21 of the Constitution.
(iii) That to provide defence counsel in case the accused is not in a position to engage is fundamental duty of the State and has throughout been recognized and now incorporated in S. 304, Cr.P.C., and in Art. 39A of the Constitution.
(iv) That bar of review or alter is different than the power of recall;
(v) That inherent powers given under S. 482, Cr.P.C. (S. 561-A, Cr.P.C. Old) are wide enough to cover any type of cases if three conditions mentioned therein so warrant, namely -
(a) for the purpose of giving effect to any order passed under the Code of Criminal Procedure;
(b) for the purposes of preventing the abuse of the process of any Court; and
(c) for securing the ends of justice.
(vi) The principle of audi alteram partem shall be violated if right of hearing is taken away.
(vii) That when the judgment is recalled it is a complete obliteration/abrogation of the earlier judgment and the Appeal or the Revision, as the case may be, has to be heard and decided afresh,
(viii) That a Court subordinate to High Court cannot exercise the inherent powers and the Code restricts it to the High Court alone.
(ix) That no fixed parameters can be fixed and hard and fast rule also cannot be laid down and Court in appropriate cases where it is specified that one of the three conditions of S. 482, Cr.P.C., are attracted should interfere."
The reference was answered by the Full Bench in the following terms :
"(i) That the power of recall is different than the power of altering or reviewing the judgment.
(ii) That powers under S. 482, Cr.P.C., can be and should be exercised by this Court for recalling the judgment in case the hearing is not given to the accused and the case falls within one of the three conditions laid down under S. 482, Cr.P.C."
I am in respectful agreement with the law, laid down by the Rajasthan High Court in the decision rendered by the Full Bench.
27. In the result, for the reason aforesaid, I hold that the petition is maintainable under section 482 of the Code. It would be for the petitioners to substantiate their contention that they are entitled to invoke the inherent jurisdiction of this Court, at the time of hearing.
28. The petition is admitted for hearing. Fresh notice to respondent No. 1 is not necessary. Notice of the petition to respondent No. 2 is not warranted. Learned High Court Govt. Pleader shall assist the Court in deciding the question involved in the matter. Send for the record and proceedings in PCR No. 87/88 from the Court of IV Addl. Chief Metropolitan Magistrate, Bangalore City. Post the matter for hearing soon after the receipt of the record and proceedings from the Court below.
Order accordingly.