Patna High Court
Vindyawashini Prasad @ Vindhyawashini ... vs Shashi Kant Verma And Anr. on 18 October, 2001
Equivalent citations: 2001(3)BLJR2313
JUDGMENT Indu Prabha Singh, J.
1. This is an application under Section 482 of the Code of Criminal Procedure, 1973 (in short 'the Code'). In this application a prayer has been made to recall the judgment dated 2B-2-2000 passed by me in Cr. Revision No. 684/96 by which I set aside the order dated 7-10-1996 passed by the Judicial Magistrate 1st Class, Hajipur in G.R. Case No. 781/91, Tr. No. 189/96. By this order the learned Magistrate had called for Book-I from the registration office with regard to the sale-deed dated 25-6-1988 executed by Bharat Choudhary in favour of a Samiti known as Lok Nayak Jai Prakash Grih Nirman Samity Ltd., Hajipur (in short the Samily).
2. In this petition it has been contended that a number of decisions were cited before me in Cr. Revision No. 684/96 in support of the contentions of the petitioner. However, by the judgment under recall passed by me I did not take into consideration the aforesaid rulings and decisions of the Hon'ble Supreme Court which has resulted in miscarriage of justice. Hence, a prayer has been made to recall the aforesaid judgment passed by me.
3. It has been contended on behalf of the petitioner that Opposite Party No. 1 Shashi Kant Verma the President of the Samity who was petitioner in Cr. Revision No. 684/96 had sold 4 112 Kathas of land in favour of the present petitioner, his wife and others though actually he had purchased only 2 Kathas of land of this plot by a sale-deed dated 25-6-1968 executed by Bharat Choudhary. In this case the charge-sheet was submitted by the police under various Sections Including 467, 468, 420 and 471 of the Indian Penal Code on which the cognizance was taken. In course of the trial on 4-11 -1999 the certified copy of the aforesaid sale-deed as also the photo copy of the sale-deed dated 13-12-1988 executed in favour of one Sunil Kumar were filed in the Court by the present petitioner. On 20-4-1996 the prosecution case was closed and accused persons were examined under Section 313 of the Code on 18-5-1996. On 10-6-1996 a petition was filed on behalf of the prosecution to direct the accused persons to file the original sale-deed dated 25-6-1988 executed by Bharat Choudhary as also the sale register maintained by the Samity on whose behalf the sale-deed was executed in favour of the present petitioner. Again on 5-8-1996 a petition was filed to call for the original sale-deed dated 25-6-1988 from the registration office which informed the Court that the original sale-deed had already been taken away by the Samity. On 30-9-1996 the defence evidence was closed. However, by the order dated 7-10-1996 the learned trial Court directed the registration office at tajipur to produce the registration register maintained by it. It was against this order that Cr. Revision No. 684/96 was filed before this Court in which the order was passed on 28-2-2000 setting aside the order dated 7-10-1996 passed by the learned Judicial Magistrate, 1st Class, Hajipur. The present application has been filed to recall this order passed by me on the ground that various decisions cited on behalf of the parties as mentioned in Paragraph No. 5 of the present petition were not considered by me in the judgment.
4. It has been contended that the judgment under recall is illegal and not tenable in the eyes of law. In the statements recorded under Section 313 of the Code no defence of the accused persons was disclosed. The sale-deed dated 25-6-1988 executed by Bharat Choudhary is very relevant for the just decision of the case. It has wrongly been held by this Court that under Section 311 of the Code a document cannot be called for. The certified copy of the sale-deed dated 25-6-1988 could not be proved and taken into evidence since Book-I with regard to it as called for from the registration office could not be produced. Under Section 311 of the Code and Section 165 of the Evidence Act a wide discretion has been conferred on the Court to act as the exgencies of justice required at any stage. If the rulings cited on behalf of the parties would have been considered in the judgment under recall the result would have been otherwise. Under these circumstances a prayer has been made to recall the judgment passed by me on 28-2-2000 and Cr. Revision No. 684/96 to hear the parties afresh and to pass a fresh judgment in accordance with law:
5. The parties have been heard at length. On behalf of the opposite party a serious objection has been taken that once a judgment is delivered by a Court it becomes functus officio and cannot recall, review or amend the same. In support of this contention reliance has been placed on Section 362 of the Code. As against it the learned Counsel appearing on behalf of the petitioner has seriously contended that the present petition for recalling the judgment is maintainable under Section 482 of the Code in exercise of the inherent powers of this Court in the interest of justice. Both the parties have been heard at length in support of their contentions and since questions raised appear to me to be of vital importance I propose to examine them in detail.
6. The first question to be considered in this connection is whether Section 362 of the Code is a complete bar to rehearing the matter for the purposes of recall, alter or review the judgment passed by the same Court. Section 362 of the Code runs as follows:
362, Court not to alter judgment.--Save as otherwise provided by this Court 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.
I will next refer to Section 482 of the Code under the provisions of which the present application has been filed. It runs as follows:
482. Saving of inherent powers of High Court.--Nothing in this Code shall be deemed to limit or affect 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.
I have quoted these two sections of the Code to find out whether the bar imposed under Section 362 of the Code is absolutely complete or whether it is amenable to the inherent powers of the High Court under the provisions of Section 482 of the Code.
7. In this connection it may be stated that the law on this point is well settled. It has been repeatedly held by the Courts that as soon as the judgment or final order disposing of a case is signed it become a final order and the Court becomes functus officio. No Court has got jurisdiction to set aside or review its own judgment or final order which has already been signed. Section 362 of the Code read with Section 387 of the Code makes it clear that the appellate Court cannot alter or review its judgment, once signed, except for the purpose of correcting a clerical or arithmetical error. In this connection a reference may be made to the case of Smt. SOoraj Devi v. Pyare Lal and Anr. . In this decision what will amount to clerical or arithmetical error has been precisely laid down by the Hon'ble Supreme Court. It has been observed that a clerical or arithmetical error is an error occasioned by an accidental slip or omission of the Court. It represents that which the Court never intended to say. It is an error apparent on the face of the record and does not depend for its discovery on argument or disputation. An arithmetical error is a mistake of calculation and a clerical error is a mistake in writing or typing. In this case an application was filed under Section 362 of the Code for clarification by a declaration that this judgment was not binding on the applicant and did not affect her possession. It was held that this application was not maintainable in view of the bar of Section 362 of the Code and the inherent powers of the High Court also cannot be invoked. Such mistake in the judgment cannot be described as clerical or arithmetical error. It was further held that inherent powers of the Court under Section 482 of the Code also cannot be exercised in support of the contention of the applicant for doing that which is specifically prohibited by the Code. In this decision reliance was placed on the case of Sankatha Singh v. State of U.P. in which it was held that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. Also a reliance has been place in this judgment on the case of Master Construction Co. (P) Ltd. v. State of Orissa A.I.R. 1966 1047. Further a reference has also been made the case of State of Orissa v. Ram Chander Agarwala . Relying on this decision the High Court has dismissed the application of the present petitioner for adding a clarification in the judgment to the effect that it will not be binding on her nor did it affect her possession.
8. From this decision it becomes clear that it is only a clerical or arithmetical error that could be corrected under Section 362 of the Code after the delivery of the judgment. The law does not permit any other correction to be carried out in the judgment after the same is signed and delivered.
9. In a recent decision in the case of Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. A.I.R. 2001 S.C. 43 this matter has been very clearly set at rest. It has been held that there is no provision in the Code of Criminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482, 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 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 relied 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. In this decision the Hon'ble Supreme Court has deprecated the practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh direction on such miscellaneous petitions by the High Court.
10. In Paragraph 9 of this judgment a reference has been made to the case of State of Orissa v. Ram Chander Agarwala and its Paragraph 20 has been extensively quoted. It was held that there is no provision in the Code of Criminal Procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.
11. From these authoritative pronouncements by the apex Court it becomes clear that once a judgment has been signed and delivered by any Court including the High Court the same could not be altered, reviewed or revoked by the same Court since that Court becomes functus officio.
12. The learned Counsel appearing on behalf of the petitioner has, however, seriously contended before me that though Section 362 of the Code bars the reviewing or altering a judgment signed or pronounced by a Court it can, nevertheless, recall the judgment in toto and proceed to pass a fresh judgment after hearing the parties. In support of his contention he has placed reliance on the case of Giridharilal and Ors. v. Pratap Rai Mehta and Anr. 1989 Cri. L.J. 2382. He has tried to show that what is prohibited under Section 362 is altering or reviewing of a judgment already pronounced. So far as the recall of the judgment is concerned Section 362 of the Code will not operate as a bar against it. He has further contended that this was a fit case for recall of a judgment passed by me inasmuch as I have not taken into consideration the various decisions cited on behalf of the bar in my judgment under recall. In the present petition in Paragraph 5 those decisions have been cited. So far as the record of the case of Cr. Revision No. 684/96 is concerned there is nothing on the record to show that those decisions were cited before the Court on behalf of the party or the petitioners. Even presuming for a moment for the sake of argument that actually those decisions were cited by bar at the time of hearing of aforesaid criminal revision petition ; the important question that come up for consideration at this stage would be; can any such presumptive on the part of the Court will empower this Court to recall the judgment passed in the said Criminal Revision. From the facts of the case of Giridharilal (supra), it would appear that accused were not given an opportunity of being heard by the trial Court. In that situation referring to one of the three conditions laid down in Section 482 of the Code it was held that in such a situation the provisions of Section 482 of the Code would be attracted and the judgment could be recalled notwithstanding the bar imposed by Section 362 of the Code. The facts of the present case are, however, entirely different. Here it is not the case of the present petitioner that he was not given an opportunity of being heard. All that he has contended is that certain decisions cited on his behalf were not taken into consideration in the judgment under recall. Hence the facts of two cases appear to be entirely different. Moreover in Paragraph 18 of the judgment in the case of Giridharilal (supra) two words "review of alter" have been defined. So far as the word "recall" is concerned the same has been stated as follows in Paragraph 19:
...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 annulled by reason of errors of law, it is said to be reversed. (Vide Black's Law Dictionary, Fifth Edition).
In support of this decision a Full Bench case of Rajasthan High Court (Jaipur Bench) Habu v. State of Rajasthan , has been cited. It has been pointed out that recalling of judgment is entirely different from eviewing or altering a judgment. To me it appears that recalling a judgment cannot be ordered unless a judgment is reviewed on merit. If the review of the judgment is barred under Section 362 of the Code it will automatically follow that to recall a judgment would also be barred under the provisions of this Section. It may be stated here that review would always proceed recall of the judgment. It order to recall a judgment on any ground whatsoever, its review is necessary. If the review of a judgment is barred under Section 362 of the Code how can it be said that recall of a judgment is not covered under the bar of this section?
13. However, in this very decision reliance has also been placed on the case of State of Orissa (supra). Also it has been noted in Paragraph 15 of the judgment of Giridharilal (supra) that in the decision of State of Orissa (supra) the Hon'ble Supreme Court had held that once judgment has been pronounced by the 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 provisions in the Code of 1898 which would enable the High Court to review the same or to exercise revisionai jurisdiction. In view of the aforesaid finding of the Hon'ble Supreme Court in the said case of whose notice has been taken by the learned Single Judge in Paragraph 15 of the judgment of the case of Giridharilal (supra) can it be said that the whole judgment can be annulled by the Court which passed the same in the purported exercise of its power to recall the judgment as propounded by the learned Single Judge in this judgment?
14. I have already noticed the decision in the case of Hari Singh Mann (supra) in which also the case of State of Orissa (supra) has been considered. In view of what has been held in Paragraph 9 of this judgment of Hari Singh Mann (supra) it is clear that the apex Court has laid down that there is no provisions in the Code of Criminal Procedure review its judgment even passed in exercise of its revisional powers and the aid of Section 482 of the Code cannot be taken for the purpose.
15. From the detailed discussions made above it becomes perfectly clear to me that this application under Section 482 of the Code is not maintainable since it hit by Section 362 of the Code. On this ground alone the application is fit to be dismissed.
16. From the facts of the present case it would appear that in exercise of the powers under Section 311 of the Code the learned trial Court has ordered for the production of certain documents from the registration office as well as from the parties. The important question that may arise in this connection would be, can the production of any document be ordered in exercise of the powers conferred under Section 311 of the Code. Before proceeding to consider this question I would like to re-produce Section 311 of the Code which runs as follows:
311. Power to summon material witness, or examine person present.--Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall and re-examine any person already examined; and the Court shall summon and examine or recall and re-examine any such person if his evidence appears to it to be essential to the just decision of the case.
A perusal of this section will clearly show that under its provisions the law athorises the Court to examine any witness or any person in attendance or to recall and e-examination any person already examined. There is no mention of production of any document in this section. As a matter of fact this section does not at all refer to any document or documentary evidence. Under this circumstance can it be said that a Court can order the production of a document in exercise of the powers conferred by this section? it is obvious that this could not be done inasmuch as there is no provision in this section for calling for any document whatsoever. The whole section mentions only the examination of any person as a witness and not of production of any document.
17. On behalf of the petitioner reliance has been placed on the case of Jamatraj Kewalji Govani v. State of Maharashtra . This was a decision under Section 540 of the Old Code corresponding to Section 311 of the Present Code. In this decision a reference has also been made to Section 165 of the Indian Evidence Act and it has been observed that Chapter 21 of the Old Code does not restrict the powers of Criminal Court under Section 540 Section 540 of the Old Code and Section 165 of the Indian Evidence Act, between them confer a wide discretion on the Court to act as the exigencies of justice requires. Section 540 is intended to be wide as the repeated use of the word 'any' throughout its length clearly indicates. So far as Section 165 of the Indian Evidence Act is concerned it empowers the Judge, in order to discover or to obtain proper proof of relevant facts; to ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; any may order the production of any document or thing. No doubt the provisions of this section are equally wide, inasmuch as under this section the production of any document can also be ordered but that will depend on the discretion of the Judge provided he feels that the fact or the document is relevant. This does not confer any power to any party. In the present case no prayer has been made to the Judge to exercise his power under the provisions of this section. Moreover it is obvious that its provision are not attracted. The law provides a procedure for admitting into a evidence the certified copy of a document if the original is in possession of the adversary. It is really surprising why under the facts and circumstances of this case the petitioner could not pray before the Court to direct the party in whose possession the original document was to produce the same and on his denial to do so to produce and prove its certified copy. Be that as it may, under the facts and circumstances of the case the provisions of Section 165 of the Evidence Act are not attracted. So far as Section 540 of the Old Code is concerned it is clear that it provisions are not attracted since they relate only to the examination of a witness and not to the production of any document.
18. In this connection my attention has been drawn to the case of Mohanlal Shamji Soni v. Union of India and Anr. . This decision has reiterated the well-settled law on the subject that at any stage of the proceeding the Court has got (he power to summon any person as a witness or to recall or to re-examine him in exercise of the powers under Section 540 of the Old Code corresponding to Section 311 of the present Code. In particular, however, my attention has been drawn to Paragraph Nos. 18 and 27 of the judgment which lays down the safe-guards and the parameters under which the powers under this section could be exercised. In Paragraph 27 it has been held that the Criminal Court has amply power to summon any person as a witness or to recall or re-examine any person even when the evidence on both sides is closed and the jurisdiction of the Court must obviously be dictated by exigency of the situation.
19. Also reliance has been placed on the case of Rahul alias Babu Lal v. State of Rajasthan, 1998 Cri. L.J. 3664. This also relates to exercise of power under Section 311 of the Code. Here also the question was about summoning of additional evidence in exercise of this power. In a well discussed judgment learned Single Judge has summarise the law on the subject and held that the power under Section 311 can be exercised even after the examination of the accused under Section 313 of the Code provided a witnesses is saught to be examined whose evidence is considered essential to establish that at every stage goods involved in crime were in proper custody. This decision is also of no help to the learned Counsel for the petitioner.
20. Also reliance has been placed on the case of Raj Deo Sharma v. State of Bihar A.I.R. 1899 S.C. 3524. It appears that in this case direction for speedy trial of criminal case was given by Hon'ble Supreme Court in the main judgment in the case of Rajdeo Sharma v. State of Bihar . In view of the directions given by the Hon'ble Supreme Court for the speedy trial the prosecution case was closed. However, subsequently it was found that the evidence of some other witnesses was essential. A petition was filed before the Hon'ble Supreme Court for clarification and modification of the directions given in the case of Raj Deo Sharma (supra) . The Hon'ble Supreme Court observed that the directions given in the said case do not curtail the power of the Court under Section 311 of the Code. It was further held that if evidence of any witness appears to the Court to be essential to the just decision of the case it is the duty of the Court to summon and examine or recall and re-examine any such person. In this decision also the question before the Court was to examine further witnesses under Section 311 of the Code and not the production and proving of any document. Hence this decision is also of no help. In Paragraph 9 of the judgment it has been observed as follows:
We make it clear that if evidence of any witness appears to the Court to be essential to the just decision of the case it is the duty of the Court to summon and examine or recall and re-examine any such person.
21. In this connection a reference may also be made to a judgment delivered by me in the case of Keshab Choudhary v. State of Bihar 2000 (2) B.B.C.J. 276. Here in this case also I had examined the scope of Section 311 of the Code and it was held that under the facts and circumstances of the said case the provisions of Section 311 of the Code were not attracted.
22. From the detailed discussions made above it becomes clear that the learned trial Court had exceeded his power under Section 311 of the Code by calling for certain documents from the parties and the registration office since under the provisions of Section 311 of the Code documents could not be called, produced or prove in a trial. In my judgment in Cr. Revision No. 684/96 also I had taken the same view. I had held in Paragraph 5 of that judgment that Section 311 of the Code does not empower the Court to call for any documentary evidence.
23. In this view of the matter and for the reasons stated above I do not find any merit in this case. It is, accordingly, dismissed.