Uttarakhand High Court
Kiran Pandhi And Others vs State Of Uttarakhand And Others on 11 July, 2017
Author: Lok Pal Singh
Bench: Lok Pal Singh
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Criminal Writ Petition No.924 of 2017
With
Stay application CLMA No.6588 of 2017
Recall Application CLMA No.7476 of 2017
Kiran Pandhi & Ors. .....Petitioners
Versus
State of Uttarakhand & Ors. ....Respondents
Present:
Mr. Arvind Vasisth, Senior Advocate assisted by Mr. Hemant Singh, Advocate for
the petitioners
Mr. Raman Kumar Sah, Deputy Advocate General with Mr. V.S. Pal, A.G.A. for
the State/respondent nos.1 & 2
Mrs. Pushpa Joshi, Senior Advocate assisted by Mr. Karan Anand, Advocate for
respondent no.3
Dated: 11.07.2017
Hon'ble Lok Pal Singh, J.
Facts necessary for adjudication of the case are that on 14.02.2017 respondent no.3 lodged an F.I.R. at Police Station Rajpur, Dehradun for the offence punishable under Section 302 of IPC against the petitioners and one other, alleging therein that his daughter Anchal Pandhi has been murdered by her husband Rahul Pandhi, mother-in-law Kiran Pandhi and sisters-in-law Rachna Pandhi and Indrani Pandhi in the morning at her residence at Pacific Hill View Apartment. In the F.I.R., it was also stated that there were several injury marks on the body of the deceased which shows that the deceased was brutally murdered. On the basis of F.I.R., Case Crime No.23 of 2017 u/s 302 of IPC was registered. After lodging of the F.I.R., the I.O. visited the spot and conducted inquest on the dead body of deceased in the presence of following witnesses and panchayatdars:
1. Rahul Pandhi
2. Rachna Pandhi 2
3. Anil Kohli
4. Balbir Singh
5. Pankaj Tyagi
2. These above-named witnesses put their signatures in the inquest report and at the time of inquest, all the panchs opined about the death of the deceased as under:
ßjk; iapku %& ge iapksa dh ekStwnxh esa izFke n`'V;k esa xyk ?kksVus ls e`R;q gksuk izrhr gksrk gS o gesa eglwl gksrk gS fd xyk nckdj ekjk x;kA izIrlj dkj.k tkuus ds fy, iksLVekVe djkuk vko";d gSAÞ
3. In the inquest report, the I.O. also mentioned the description of the spot, which is reproduced hereunder:
ßfujh{k.k ?kVukLFky %& ?kVukLFky&iSflfQd fgYl esa flat No. D- 104 dk gSA e`rdk dk "ko ia[ks ls pqUuh ij Qank Mkydj yVdk gSA ukius ij dejs dh Nr dh Å¡pkbZyxHkx 10 fQV gS] ia[kk Nr ls ,d QhV uhps gSA ia[ksa ls ¼tgk¡ ij pqUuh ca/kh gS½ ,oa tgka ij "ko ds xys esa Qank yVdk gSA yxHkx pqUuh lk<+s rhu QqV gS] "ko ds iSj tehu ij Vp dj jgs gSa] "ko ds ikl ,d ckYVh j[kh gS tks mYVh gS] ckYVh dh nwjh nhokj ls rhu QhV gS ,oa "ko ds yVdrs iSjksa ls ckYVh dh nwjh Ms<+ QhV ¼1-5½ gSA½
4. Post-mortem on the dead body of the deceased was conducted on 14.02.2017. As per the post mortem report, cause of death was ascertained as 'asphyxia due to anti-mortem hanging.
5. At this juncture, it would be relevant to mention that earlier Writ Petition No.766 of 2017 was filed by the petitioners for the same reliefs, which came up for hearing before the Coordinate Bench of this Court on 19.05.2017 and following order was passed:
3"Mr. J.S. Virk, Advocate for the petitioners. Mr. V.S. Pal, A.G.A. with Mr. Prem Kaushal, Brief Holder for the respondent State.
Ms. Pushpa Joshi, Sr. Advocate assisted by Mr. Karan Anand, Advocate for the private respondent.
An FIR has been lodged against four accused persons, including the petitioners, for the offence punishable under Section 302 IPC.
Learned counsel for the petitioners confined his prayer only to the extent that the court below be directed to decide the bail applications of the petitioners at an early date, subject to their surrender. Learned counsel for the petitioners also prayed that some time be given to the petitioners to enable them to surrender before the Magistrate concerned.
Considering the facts of the case, as also the grounds taken up in the criminal writ petition, the innocuous prayer made by learned counsel for the petitioners is worth accepting.
Petitioners are granted three weeks' time from today to surrender before learned Magistrate, where after they will be dealt with by the court concerned as per law. No coercive measures shall be adopted against the petitioners for a period of three weeks, provided they cooperate with the investigating agency.
It is further provided that if the petitioners surrender before learned Magistrate within the stipulated time and seek bail, their bail applications shall be decided in accordance with law, as expeditiously as possible and without unreasonable delay.
With the directions as above, the criminal writ petition stands disposed of.
[Stay application no. 5481 of 2017 also stands disposed of.]"
6. After passing of the final order on 19.05.2017, a recall application was moved by Mr. Vivek Pathak, Advocate to recall the order dated 19.05.2017 and Mr. Arvind Vasisth, Senior Advocate was engaged to argue the case. Vide order dated 08.06.2017, the Coordinate Bench dismissed the recall application and passed the following order:
4"Mr. Arvind Vashisth, Senior Advocate, assisted by Mr. Vivek Pathak, Advocate, present for the petitioners.
Mr. Raman Kumar Sah, learned Deputy Advocate General, assisted by Mr. Prem Kaushal, present for the State.
Mr. Pushpal Joshi, Senior Advcoate, assisted by Mr. Karan Anand, Advocate, present for the respondent no.3.
It is the submission of learned counsel for the petitioners that when the order dated 19.05.2017 sought to be recalled, was passed the offence was already converted into Section 306 IPC in place of Section 302 IPC. It was only at the instance of the petitioner that the order dated 19.05.2017 was passed. Therefore, there is no reason to recall the order sought to be recalled.
MCC No. 515 of 23017 is dismissed as 'withdrawn' with liberty to recall applicants/petitioners to file 2nd Criminal Writ Petition, if they are so advised, in accordance with law."
7. As the Coordinate Bench had dismissed the recall application with liberty to the petitioners to file second criminal writ petition, if so advised, in accordance with law, it is this second writ petition which the petitioners filed seeking the following reliefs:
(i) A writ, order or direction in the nature of certiorari quashing the first information report dated 14.02.2017 registered at Police Station Rajpur, District Dehradun as case crime no.23 of 2017, u/s 302 of IPC (now being investigated under section 306 of the I.P.C.).
(ii) A writ, order or direction in the nature
of mandamus commanding the
respondent no.2 not to arrest and not
to harass the petitioners in case crime no.23 of 2017, u/s 302 of I.P.C. (now being investigated under section 306 of I.P.C.) registered at Police Station Rajpur, District Dehradun.
8. This writ petition came up for hearing before this Court on 21.06.2017. On 21.06.2017, the Court 5 specifically observed that this is the second writ petition for the same cause of action and is, therefore, not maintainable, but on the request of petitioners' counsel, adjourned the case and fixed 22.06.2017. Paras-4 to 7 are relevant, which are extracted hereunder:
4. It is pointed out by the Senior Counsel appearing on behalf of respondent no.3 that on the date when the recall application was decided prior to that the case was converted under Section 306 IPC. The offence was converted under section 306 IPC on 23.04.2017 before disposing of the writ petition or more particularly before passing the order on the MCC No.515 of 2017. It is strange that present petitioners, against whom FIR was lodged under section 302 IPC, preferred a writ petition before this Court bearing Criminal Writ Petition No.766 of 2017. In that criminal writ petition, they themselves made a prayer that they may be permitted to surrender before the Magistrate concerned and also forego in regard to the quashing of FIR. Since earlier writ petition was filed for quashing of the same FIR though it was under section 302 IPC or subsequently converted under section 306 IPC but it makes no difference.
The FIR would remain same. In view of this Court this is second criminal writ petition, which is not maintainable. The Coordinate Bench in its order dated 08.06.2017 has observed while dismissing the recall application that the writ petitioners may file second writ petition, if they so advised. The Coordinate Bench has not made any observation that first writ petition is being permitted to be withdrawn and liberty is granted to the present petitioners to file second writ petition.
5. Having considered the submissions of learned counsel for the parties and after going through the material available on record, this Court is of the view that this second writ petition is not maintainable. From the perusal of the order dated 19.05.2017, it reveals that petitioners themselves have made statement for taking interim protection for three weeks, so they may not be arrested by that time but they did not honor the order passed by this Court. The conduct of the petitioners cannot be said to be bonafide. Despite time granted to the petitioners that they shall not be arrested for a period of three weeks, it seems that the Investigating Officer has failed in discharging his legal obligations in concluding investigation.
66. Mr. K.R. Gazi, Advocate appearing on behalf of the petitioners submits that Mr. Arvind Vashistha, Senior Advocate is out of station for some personal work, therefore, he prayed that this matter be listed tomorrow."
9. Thereafter, the writ petition was listed on 22.06.2017 but on that date the case was adjourned. On 23.06.2017, this matter again came up for hearing and was adjourned on the request of petitioners' counsel. On 23.06.2017, following order was passed:
"None present for the petitioners. Mr. Pratiroop Pandey, AGA, present for the State.
Ms. Pushpa Joshi, Senior Advocate assisted by Mr. Karan Anand, Advocate for the respondent No.3.
This writ petition was listed yesterday and upon hearing the learned counsel for the parties, this Court has opined that the second writ petition is not maintainable. After arguing at some length - Mr. K.R.Garzi, learned counsel for the petitioners submits that Mr. Arvind Vashistha, Senior Advocate, is out of Station for his personal work, therefore, this mater is listed today.
At the request of learned counsel for the petitioners, considering the fact that Senior Advocate - Mr. Arvind Vashistha is out of Station, this case is listed today.
Mr. Arvind Vashistha, Senior Advocate has appeared before me in the morning in some of the cases.
Mr. Pankaj Kumar Sharma, Advocate submits that the case be adjourned.
In the interest of justice, the matter is adjourned.
It is made clear that there is no interim order in this casein favour of the petitioners, the Investigating Officer may take recourse as per law."
10. These are the two orders dated 21.06.2017 and 23.06.2017, whereof recall has been sought by the petitioners by way of recall application CLMA No.7476 of 2017.
711. Learned Senior Counsel Mr. Arvind Vashisth submits that the first writ petition was filed by the petitioners for quashing of the F.I.R. in respect of offence under Section 302 IPC. At the time of filing of the same, it was not in their knowledge that the case crime has been converted into Section 306 of IPC. Therefore, recall application was moved, which was withdrawn by the counsel and it was dismissed as withdrawn by the Coordinate Bench; but, while doing so, the Coordinate Bench, granted liberty to the petitioners to file second writ petition, whereafter, this second writ petition has been filed for the subsequent cause of action. He further submits that the Coordinate Bench, while dismissing the recall application as withdrawn by order dated 08.06.2017, had granted liberty to the petitioners to file second writ petition, therefore, this second writ petition is maintainable. Thus, the observations made by this Court in the orders dated 21.06.2017 and 23.06.2017, regarding non-maintainability of the writ petition, are in the nature of appellate opinion and are not sustainable. According to him, this Court cannot sit like an appellate court and cannot make such observations. To buttress his argument, learned Senior Counsel placed reliance upon a judgment of the Hon'ble Apex Court passed in the case of State of Punjab vs. Davinder Pal Singh Bhullar & Ors., (2011) 14 SCC 770. He refers para-46, 48, 49 & 97:
"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 8 eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such 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.
48. In Sooraj Devi v. Pyare Lal & Anr., this Court held that the prohibition in Section 362 Cr.P.C. against the Court altering or reviewing its judgment, is subject to what is "otherwise provided by this Code or by any other law for the time being in force". Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362Cr.P.C. and, therefore, the attempt to invoke that power can be of no avail.
49. Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law.
97. There may be certain exceptions to the rule that a person was not aware of the correct facts while filing the first petition or the events have arisen subsequent to making of the first application. The Court must bear in mind that doctrine of res judicata is confined generally to civil action but inapplicable to illegal action and fundamentally lawless order. A subsequent petition of habeas corpus on fresh grounds which were not taken in the earlier petition for the same relief may be permissible. (Vide: Lalubhai Jogibhai Patel v. Union of India & Ors., AIR 1981 SC 728; Ajit Kumar Kaviraj v. Distt. Magistrate, Birbhum & Anr., AIR 1974 SC 1917; andSunil Dutt v. Union of India & Ors., AIR 1982 SC 53)"
12. Learned Senior Counsel also places reliance in the case of Sarguja Transport Service vs. State Transport 9 Appellate Tribunal, (1987) 1 SCC 5. He refers paras-5, 6, 7, 8 & 9 of the judgment, which are extracted hereunder:
"5. In this case we are called upon to consider the effect of the withdrawal of the writ petition filed under Articles 226/227 of the Constitution of India without the permission of the High Court to file a fresh petition. The provisions of the Code of Civil Procedure. 1908 (hereinafter referred to as 'the Code') are not in terms applicable to the writ proceedings although the procedure prescribed therein as far as it can be made applicable is followed by the High Court in disposing of the writ petitions. Rule 1 of Order XXIII of the Code provides for the withdrawal of a suit and the consequences of such withdrawal. Prior to its amendment by Act 104 of 1976, rule 1 of Order XXIII of the Code provided for two kinds of withdrawal of a suit. namely, (i) absolute withdrawal, and (ii) withdrawal with the permission of the Court to institute a fresh suit on the same cause of action. The first category of withdrawal was governed by sub-rule (1) thereof as it stood then, which provided that at any time after the institution of a suit the plaintiff might, as against all or any of the defendants 'withdraw' his suit or abandon a part of his claim. The second category was governed by sub-rule (2) thereof which provided that where the Court was satisfied
(a) that a suit must fail by reason of some formal defect, or (b) that there were sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of a suit or part of a claim it might, on such terms as it thought fit, grant the plaintiff permission to withdraw from such suit or abandon a part of a claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. Sub-rule (3) of the former rule 1 of order XXIII of the Code provided that where the plaintiff withdrew from a suit or abandoned a part of a claim without the permission referred to in sub-rule (2) he would be liable to such costs as the Court might award and would be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. Since it was considered that the use of the word 'withdrawal' in relation to both the categories of withdrawals led to confusion, the rule was amended to avoid such confusion. The relevant part of rule 1 of Order XXIII of the Code now reads thus:--10
"Rule 1. Withdrawal of suit or abandonment of part of claim--(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim:
* * ** (3) Where the Court is satisfied--
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-
matter of a suit or part of a claim.
it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim.
(4) Where the plaintiff--
(a) abandons any suit or part of claim under sub- rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim."
6. It may be noted that while in sub-rule (1) of the former rule 1 of Order XXIII of the Code the words 'withdraw his suit' had been used, in sub- rule (1) of the new rule 1 of Order XXIII of the Code, the words 'abandon his suit' are used. The new sub-rule (1) is applicable to a case where the Court does not accord permission to withdraw from a suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. In the new sub-rule (3) which corresponds to the former sub-rule (2) practically no change is made and under that sub- rule the Court is empowered to grant subject to the conditions mentioned therein permission to withdraw from a suit with liberty to institute a fresh suit in respect of the subject-matter of such suit. Sub-rule (4) of the new rule 1 of Order XXIII of the Code provides that where the plaintiff abandons any suit or part of claim under sub-rule (1) or withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he would be liable for such costs as the Court 11 might award and would also be precluded from instituting any fresh suit in respect of such subject- matter or such part of the claim.
7. The Code as it now stands thus makes a distinction between 'abandonment' of a suit and 'withdrawal' from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in subrule (3) of rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject- matter or such part of the claim. The principle underlying rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the Court to file fresh suit. Invito benificium non datur. The law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the Court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the Court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of rule 1 of Order XXIII. The principle underlying the above rule is rounded on public policy, but it is not the same as the rule of res judicata contained in section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a Court. In the case of abandonment or withdrawal of a suit without the permission of the Court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in 12 sub-rule (3) in order to prevent the abuse of the process of the Court.
8. The question for our consideration is whether it would or would not advance the cause of justice if the principle underlying rule 1 of Order XXIII of the Code is adopted in respect of writ petitions filed under Articles 226/227 of the Constitution of India also. It is common knowledge that very often after a writ petition is heard for some time when the petitioner or his counsel finds that the Court is not likely to pass an order admitting the petition, request is made by the petitioner or by his counsel, to permit the petitioner to withdraw from the writ petition without seeking permission to institute a fresh writ petition. A Court which is unwilling to admit the petition would not ordinarily grant liberty to file a fresh petition while it may just agree to permit the withdrawal of the petition. It is plain that when once a writ petition filed in a High Court is withdrawn by the petitioner himself he is precluded from filing an appeal against the order passed in the writ petition because he cannot be considered as a party aggrieved by the order passed by the High Court. He may as stated in Daryao and Ors. v. The State of U.P. and Ors., [1962] 2 S.C.R. 575 in a case involving the question of enforcement of fundamental rights file a petition before the Supreme Court under Article 32 of the Constitution of India because in such a case there has been no decision on the merits by the High Court. The relevant observation of this Court in Daryao's case (supra) is to be found at page 593 and it is as follows:
If the petition is dismissed as with- drawn it cannot be a bar to a subsequent petition under Art. 32, because in such a case there has been no decision on the merits by the Court. We wish to make it clear that the conclusions thus reached by us are confined only to the point of res judicata which has been argued as a preliminary issue in these writ petitions and no other.
9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Article 226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao's case (supra) is of no assistance. But we are of the view that the 13 principle underlying rule 1 of Order XXIII of the Code should be extended in the interests of administra- tion of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Article 32 of the Constitution of India since such withdraw- al does not amount to res judicata, the remedy under Article 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was fight in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however. make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental fight guaranteed under Article 21 of the Constitution since such a case stands on a different footing altogether. We however leave this question open."
13. Per contra, learned Senior Counsel Mrs. Pushpa Joshi raised objection about the maintainability of the writ petition. She placed reliance upon the judgment of Hon'ble Apex Court in the case of Nazma vs. Javed alias Anjum 2013 (1) SCC 376, wherein the Hon'ble Apex Court has discussed the scope of Article 226 & 227 of the Constitution of India. She refers paras-10 & 11, which are extracted hereunder:
"11. The practice of entertaining miscellaneous applications in disposed of writ petitions was deprecated by this Court in Hari Singh Mann 14 (supra). Reference to the following paragraph of that judgment is apposite:
"8. We have noted with disgust that the impugned orders were passed completely ignoring the basic principles of criminal law. No review of an order is contemplated under the Code of Criminal Procedure. After the disposal of the main petition on 7-1-1999, there was no lis pending in the High Court wherein the respondent could have filed any miscellaneous petition. The filing of a miscellaneous petition not referable to any provision of the Code of Criminal Procedure or the rules of the court, cannot be resorted to as a substitute of fresh litigation. The record of the proceedings produced before us shows that directions in the case filed by the respondents were issued apparently without notice to any of the respondents in the petition. Merely because Respondent 1 was an Advocate, did not justify the issuance of directions at his request without notice of the other side. The impugned orders dated 30-4- 1999 and 21-7-1999 could not have been passed by the High Court under its inherent power under Section 482 of the Code of Criminal Procedure. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the court."
We are sorry to note that in spite of the clear pronouncement of law by this Court, still, the High Courts are passing the similar orders, which practice has to be deprecated in the strongest terms. Of late, we notice that the High Courts are entertaining writ petitions under Articles 226 and 227 of the Constitution, so also under Section 482 CrPC and passing and interfering with various orders granting or rejecting request for bail, which is the function of ordinary Criminal Court. The jurisdiction vested on the High Court under Articles 226 and 227 of the Constitution as well as Section 482 CrPC are all exceptional in nature and to be used in most exceptional cases. The jurisdiction under Section 439 CrPC is also discretionary and it is required to be exercised with great care and caution.
1512. We are of the view that the High Court has committed a grave error in not only entertaining the criminal miscellaneous application in a disposed of writ petition, but also passing an order not to arrest the 1st respondent till the conclusion of the trial. Grant of bail or not to grant, is within the powers of the regular Criminal Court and the High Court, in its inherent jurisdiction, not justified in usurping their powers. Once the criminal writ petition has been disposed of, the High Court becomes functus officio and cannot entertain review petitions or miscellaneous applications except for carrying out typographical or clerical errors. In the instant case, the High Court has entertained a petition in a disposed of criminal writ petition and granted reliefs, which is impermissible in law."
14. Reliance is also placed by the learned Senior Counsel on Sunil Kumar vs. State of Haryana, (2012) 5 SCC 398. She refers paras-7, 8, 11, 12 & 13, which are reproduced below:
"7. The High Court dealt with various propositions of law while dealing with the averments raised on his behalf including the application of the provisions of Section 362 Cr.P.C. which puts a complete embargo on the criminal court to reconsider any case after delivery of the judgment as the court becomes functus officio.
8. This Court in a recent judgment in State of Punjab v. Davinder Pal Singh Bhullar & Ors. etc., AIR 2012 SC 364 dealt with the issue considering a very large number of earlier judgments of this Court including Vishnu Agarwal v. State of U.P. & Anr., AIR 2011 SC 1232 and came to the conclusion:
"Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law."16
11. The High Court in the impugned judgment came to the right conclusion that court could not entertain the petition having become functus officio.
12. Be that as it may, petitioner being the black- marketeer presumed that he had a right to dictate terms to the court and get desired results, thus, approached this Court again and sought the relief prayed before the High Court. Petitioner has lost in four courts earlier. In this fact-situation whether there should be any restrain on the petitioner or he should be permitted to abuse the judicial process as he likes.
13. This Court in Dr. Buddhi Kota Subbarao v. K. Parasaran & Ors., AIR 1996 SC 2687 observed as under:
"No litigant has a right to unlimited drought on the Court time and public money in order to get his affairs settled in the manner as he wishes. Easy access to justice should not be misused as a licence to file misconceived or frivolous petitions."
14. In Sabia Khan & Ors. v. State of U.P. & Ors., AIR 1999 SC 2284, this Court held that filing totally misconceived petition amounts to abuse of the process of the Court and waste of courts' time. Such litigant is not required to be dealt with lightly."
15. I have heard Mr. Arvind Vashisht, Senior Advocate appearing for the petitioners, Mrs. Pushpa Joshi, Senior Advocate appearing for the complainant/respondent no.3 as well as Mr. R.K. Sah, Deputy Advocate General and Mr. V.S. Pal, Assistant Government Advocate for the State.
16. Law laid down in the judgments (Nazma vs. Javed alias Anjum, 2013 (1) SCC 376 and Sunil Kumar vs. State of Haryana, (2012) 5 SCC 398) is that the moment the writ petition is disposed of, the Court has thereafter no power to entertain any misc. application and to modify its earlier judgment or order. In the light 17 of afore-stated judgments, this Court observes that as soon as the writ petition was disposed of by the Coordinate Bench vide judgment and order dated 19.05.2017, there was no occasion for the Coordinate Bench to grant liberty to the petitioners to file a second writ petition in the recall application, as the Court had become functus officio after passing of the finial order. More particularly, at that point of time on the hearing of recall application, there was no lis pending before the Coordinate Bench and thus the Court ought not to have gone beyond its jurisdiction. That apart, the first writ petition was not dismissed as withdrawn, rather it was disposed of finally with the consent of learned counsel for the petitioners. An order passed with the consent of the parties, which can said to be a compromise order, can only be challenged by fraud. Since the writ petition was disposed of finally by order dated 19.05.2017 and the petitioners have themselves availed the benefit of interim order of stay from their arrest, thus, the recall application filed on the behest of the petitioners, after the expiry of three weeks period granted by the Coordinate Bench for their surrender and protecting them from arrest, was also not maintainable and was cleverly by the petitioners. In my view, the order passed by the Coordinate Bench (U.C. Dhyani, J.) is without jurisdiction, in view of Sunil Kumar's case (Supra). The Coordinate Bench, while dismissing the recall application as withdrawn, also expressed his opinion that the order dated 19.05.2017 was passed on the instance of the petitioners and therefore there is no reason to recall the said order.
1817. So far as the judgments referred by learned Senior Counsel Mr. Arvind Vashisth are concerned, that are of no help to the petitioners in any manner. Principle of res judicata as held by Hon'ble Apex Court in Davinder Pal Singh Bhullar's case (supra) and the ratio of the judgment comes in the way of the petitioners themselves. As far as judgment rendered in Sarguja Transport Service (Supra) is concerned, the said judgment has come on the principle laid down under Rule 1 of Order XXIII of C.P.C. Since the first writ petition was finally disposed of by order dated 19.05.2017, therefore, in my considered view, recall application on the behest of the writ petitioners was not legally maintainable. While hearing on the recall application, the Coordinate Bench has observed that this application has no substance, therefore, any observation made by the Coordinate Bench in regard to filing of second writ petition has no implication.
18. In my considered view, this second writ petition is not maintainable for the same reliefs, inasmuch as, the first writ petition was finally disposed of by order dated 19.05.2017 with the consent of the parties. On the recall application, the Coordinate Bench has made observation that there is no merit in the application, whereafter the petitioners prayed for withdrawal of recall application. While dismissing the recall application as withdrawn, there was no occasion for the Coordinate Bench to make any observations with regard to filing of second writ petition. So far as the averments made in regard to the filing of the second writ petition, they are no happily worded that infact the Coordinate Bench was inclined to grant any permission 19 to prefer second writ petition. Thus, any observations made by the Coordinate Bench, in this regard, are without jurisdiction and against the settled proposition of law as has been observed above.
19. As regards the submission of learned Senior Counsel that at the time of filing of first writ petition, it was not in the knowledge of the petitioners that the case has been converted into Section 306 IPC and that second writ petition has been filed for subsequent cause of action, I have been told by the opposite party that charge-sheet was filed against the husband of the deceased and he was arrested on 23.04.2017, who thereafter moved a bail application before this Court, which has been rejected. Petitioner no.3 Rachna Pandhi was doing pairvi on behalf of the accused in the bail application from the very beginning and was doing pairvi in first writ petition, therefore, it is not acceptable that petitioners were not having knowledge of the fact that the case has been converted into Section 306 IPC. In view of this fact also, this second writ petition is not maintainable for the same cause of action and the same is liable to be dismissed.
20. Besides above, from the perusal of the facts and circumstances, it appears that on the request of the petitioners that they will surrender before the Magistrate concerned, stay from arrest for a period of three weeks was granted to the petitioners, but they did not honor the Court's order and by engaging another counsel, moved recall application for recall of order dated 19.05.2017, which is nothing but absolutely abuse of process of Court.
2021. At this juncture, it is also necessary to state that after passing of the order dated 08.06.2017 on the recall application, the petitioners filed this second writ petition, whereon, this Court on dated 21.06.2017 and 23.06.2047, made observations that this second writ petition is not maintainable, whereafter an application was filed by the petitioners praying that this writ petition may also be placed before the same Judge, who decided the earlier writ petition and granted liberty to file this second writ petition. However, the said application was not pressed by the petitioners and it was dismissed as such by this Court. Thereafter, recall application has been filed by the petitioners to recall the orders dated 21.06.2017 and 23.06.2017, which are misconceived and are liable to be dismissed.
22. For the reasons recorded above, the writ petition is dismissed as not maintainable. Recall application also stands dismissed. No order as to costs.
(Lok Pal Singh, J.) 11.07.2017 Rajni