Calcutta High Court (Appellete Side)
Dr. Subhadip Laskar vs Dr. Sanjukta Laskar (Nee Sarkar) & Anr on 23 September, 2009
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
Criminal Revisional Jurisdiction
Present :
THE HON'BLE MR. JUSTICE RAGHUNATH RAY
C.R.R. No. 2546 of 2009
With
CRAN 2025 of 2009
Dr. Subhadip Laskar,
Vs
Dr. Sanjukta Laskar (nee Sarkar) & Anr.
For the Petitioner : Mr. Tarun Kumar Ghosh
Mrs. Arundhati Banerjee
For the Opposite Party : Mr. Ranabir Ray Chowdhury
Mr. S. Chatterjee
Mr. D. Chakraborty
Heard on : 08.09.2009
Judgment on : 23.09.2009
RAGHUNATH RAY, J. :
An application praying for restoration of CRR No. 2546 of 2009 in its original file and number has been registered as CRAN 2025 of 2009. It has also been prayed inter alia therein that order dated 24.07.09 passed by S. P. Mitra J, in CRR No. 2546 of 2009 should be recalled or set aside.
2. The main grievance of Dr. Subhadip Laskar, petitioner husband is that the revisional application filed at his instance has been dismissed ex parte without affording him a reasonable opportunity of being heard. Therefore, his modest prayer is that in the interest of justice order impugned should be recalled / set aside in order to enable him to put 1 forward his view points through his counsel for proper adjudication of the revisional application.
3. To appreciate the controversy raised in this application under section 482 Cr.P.C. against the backdrop of the gamut of the matter, the factual matrix leading to filing of such restoration petition is to be dealt with in a short campass.
4. By filing a revisional application under section 401 read with section 482 Cr.
P.C. the husband, revisionist has sought to challenge the order dated 02.06.2009 passed by the ld. ACJM Alipur, 24 Pgs. (South) in a Criminal Misc. Case No. 18 of 2009 arising out of an application under section 125 of the Cr. P.C. By the afore-mentioned order the ld. Magistrate rejected the revisionist's plea that the proceeding under section 125 Cr. P.C. instituted by his wife Dr. Sanjukta Laskar (nee Sarkar) is not maintainable since she concealed the factum of her previous marriage and also used to maintain illicit relation with several persons in her family and his further ground to challenge the maintainability of the maintenance proceeding was that his wife being a practicing Gynecologist and maintaining a number of bank accounts, fixed deposit accounts, KVP, LIC policies beside having debit cards and bank locker in her name has a substantial source of income every month. None of the ingredients of section 125 Cr. P.C. therefore, is attracted in the proceeding under section 125 Cr. P.C.
5. After taking respective contention of both sides, into consideration it was, however, held inter alia by the ld. Magistrate that the petition dated 07.03.2009 challenging the maintainability of the proceeding under section 125 Cr. P.C. so initiated by his wife bears no merit at all, since there was no scope for him to adjudicate the question of maintainability on afore-mentioned grounds, which are mainly founded on facts, in the 2 absence of any evidence or other like materials on record at that preliminary stage of the proceeding. Accordingly, the petition dated 07.03.2009 was rejected on contest vide order dated 02.06.09 in Criminal Misc. Case No. 18 of 2009.
Being aggrieved by and dissatisfied with the afore-mentioned findings of the ld. Magistrate, revisional petition being numbered CRR 2546 of 2009 was preferred by the husband, O.P. before this Court.
6. The said revisional application was running in the daily cause list of the High Court at Calcutta for more than a week and several adjournments were also granted at the instance of the petitioner on different occasions. But on 24.07.09 when the matter was called on, none appears for the petitioner to move the application and no accommodation was also sought for. However, Mr. Sourav Chatterjee led by Mr. Joymalya Bagchi, Advocate was present for the opposite party wife. After hearing, ld. counsel for the opposite party, another single bench of this court examined the order impugned with reference to averments made in the revisional application and was of opinion that order passed by the ld. Magistrate does not suffer from any illegality or irregularity calling for interference by this court at that stage. The ld. Single Bench of this Court did not find any merit in the application and it was accordingly dismissed vide order dated 24.07.09. The afore-mentioned order of S. P. Mitra J, is now under challenge before this Single Bench.
7. In support of the present petition under section 482 Cr. P.C. it is argued by Mr. Tarun Kumar Ghosh, ld. counsel for the petitioner that the proceeding under section 125 Cr. P. C. is of quasi civil nature and as such the principles underlying the relevant provisions of civil procedure code for setting aside an ex parte order can easily be followed. More so, whenever, the power conferred under section 482 Cr. P.C. upon this Court is wide enough to deal with such a situation in order to prevent the 3 abuse of process of law. The exercise of inherent power is necessitated since the ld. counsel for the petitioner could not be present before the court at the time of admission hearing of the revisional application because of genuine difficulties. The petitioner thus remained unrepresented and order impugned was accordingly passed causing gross violation of the principles of natural justice.
8. In this connection Mr. Ghosh has referred to a ruling of the Hon'ble Apex Court reported in AIR 2006 SC 3051 (Channi Vs State of Uttar Pradesh) and has argued that in almost identical circumstances after setting aside the order passed by the High Court, the Supreme Court directed the High Court to consider the application under the relevant provisions of the Probation of offenders' Act or u/s 360 of the Cr. P.C. afresh and to pass an appropriate order in this regard. Therefore, his argument is that this Court should consider the petitioner's revisional application in its proper perspective after recalling order impugned passed ex parte by another Single Bench of this Court and an appropriate order may be passed after affording a reasonable opportunity of being heard to the petitioner.
9. Mr. Ghosh has also placed much reliance upon another ruling of the Hon'ble Apex Court reported in (2009) 2 SCC(Cri) (Jagadish Bagri--Appellant -Vs- Rajendra Kumar Luhariwala & Anr. - Respondents). It is submitted by him that this Court should take into consideration specific averments made by the petitioner in Paragraph 16 of his petition that there was a transport strike called by the Bus, Mini Bus and Taxi Owners' Association and his counsel Mrs. Arundhati Banerjee, Advocate failed to get any transport for coming to this Hon'ble Court. Since there was a very disorderly situation regarding the availability of transport she failed to attend the this Court on 24.07.2009 and as a consequence thereof there was neither any representation nor any appearance for and on behalf of the petitioner when the said Criminal Revisional Application was called 4 on before the Hon'ble Justice Sankar Prasad Mitra. In view of such compelling circumstances, the matter went unrepresented from the side of your petitioner. According to him, the order dated 24.07.2009 passed by the Hon'ble Justice Sankar Prasad Mitra is in substance an ex parte order, virtually without touching merit of the case.
10. It is, further, submitted by him that in such a fact situation the matter was remitted to the High Court for a fresh consideration on merit in the afore- cited ruling. According to him, in the instant case also the petitioner has elaborated unavoidable difficulties which prevented his counsel from attending this court when the matter was called on for hearing. Therefore, on the touchstone of the golden principle of natural justice, recalling of the order impugned by invoking the inherent power of this Court is warranted to enable the petitioner to place his case before the court for efficacious disposal of the Revisional Application on merit.
11. Such submission is, however, strongly disputed by Mr. Ranabir Ray Chowdhury, the ld. Counsel for the O. P. wife mainly on the ground that this Court sitting in co-ordinate jurisdiction can not recall or set aside any order whereby the ld. Judge of another bench of this court dismissed the Revisional Application on merit and further that section 362 Cr.P.C. operates as a bar in exercise of inherent power of this Court for recalling the order impugned. In this context he has relied upon a catena of judicial pronouncements by the Hon'ble Apex Court and also a Full Bench decision of this Court as noted below ;-
i) 1990 (2) SCC 437 [Simrikhia - Vs - Dolley Mukherjee]
ii) 2001(1) SCC 169 [Hari Singh Mann -Vs- Harbhajan Singh Bajwa]
iii) 2001(4) SCC 752 [State of Kerala -Vs- M.M. Manikantan Nair)
iv) 2008(2) SCC 705 [ Sunita Jain - Vs - Pawan Kumar Jain & Ors.]
v) 2008 (8) SCC 673 [State represented by DSP, SB, CID, Chennai -Vs
- Rajendran & Ors.) 5
vi) 2005(1) C. Cr. L. R. (Cal- Full Bench) 598 [Harjeet Singh - Vs- State of W.B.]
12. Against the backdrop of factual scenario set out in preceding paragraphs this Court is now to determine the moot question as to whether in exercise of inherent power of this Court, there is any scope of re-hearing of the criminal revision in question disposed of at motion stage on merit in absence of petitioner's counsel, ignoring the relevant provision as embodied section 362 Cr. P.C.
13. For the purpose of determination of the point formulated above in an effective manner this court is to examine at the first instance the scope and content of section 482 Cr. P.C. A plain reading of the section itself reveals that it envisages three circumstances under which the inherent jurisdiction may be exercised namely (i) to give effect to an order under the code, (ii) to prevent abuse of the process of Court, and (iii) to otherwise secure the ends of justice.
14 On the other hand the Section 326 Cr. P.C. prohibits the Court from altering or reversing any judgment or final order disposing of a case after it has been signed except for the purpose of correction of clerical or arithmetical error. Therefore, any alternation of a judgment or final order disposing of the case not permitted by this section is a nullity. The prohibition contained in section 362 Cr. P.C. is absolute and after the judgment is signed, the High Court in its inherent power under section 482 Cr. P.C. has no authority / jurisdiction to alter / review the same.
15. Earlier there were conflicting decisions of different Single Benches and a Division Bench of our High Court on the question of recalling its own order in exercise of inherent power despite restrictions imposed under section 362 Cr. P.C. 6
16. However, all such controversies on the question of invoking inherent power under section 482 Cr. P.C. overriding statutory bar under section 363 Cr. P.C. have been set at rest by a Full Bench decision of this court in early part of the year 2005. There is an illuminating discussion and analysis of various rulings of the Hon'ble Apex Court and divergent decisions of various High Courts. Speaking on behalf of the Full Bench, the Hon'ble Justice Amit Talukdar has been pleased to highlight the essence and spirit of section 363 Cr. P.C. in its true import very nicely in a single sentence. I cannot resist the temptation to borrow His Lordship's language and to put the same as under ;-
" Once the Order, may be a judgment or a final order, is signed by the Court while disposing of a case, it becomes functus officio and it cannot touch its pen on the same even if the ink has not dried on its signature."
The correct position of law, enunciated therein as 'axiomatic truth' is that "....in view of section 362 of the said code there is a clear bar for any Court which includes High Court to either review or recall an order or judgment passed even if it is found subsequently that it offends the principle of natural justice...."
17. Such interpretation of Section 363 Cr. P.C. has been vetted by the Hon'ble Apex Court in subsequent rulings. In paragraph 31 of a recent rulings reported in 2008(2) SCC 705, it has been observed by the Hon'ble Apex Court as follows;-
"31.The section makes it clear that a court can not alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error. The scheme of the Code, in our judgment, is clear that as a general rule, as soon as the judgment is pronounced or order is made by a court, it becomes functus officio (ceases to have control over the case) and has no power to review, override, alter or interfere with it."7
18. In paragraph 19 of another ruling of the recent time reported in 2008(8) SCC 673, it has been held by the Hon'ble Apex Court as noted below ;-
" Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers, however, are as much controlled by principle and precedent as are its express powers by statutes. If a matter is covered by an express letter of law, the court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction."
19. On the question of review of earlier judgment and order under the purview of section 482 Cr. P.C. Paragraph 33 of the afore-quoted judgment may be reproduced as under;-
"33.It is also well settled that power of review is not an inherent power and must be conferred on a court by a specific or express provision to that effect (Vide Patel Narshi Thakershi v. Pradyumansinghji Arjunsingji.) No. power of review has been conferred by the Code on a criminal court and it cannot review an order passed or judgment pronounced."
20. On a close scrutiny of order impugned in the given case in the light of afore- discussed proposition of law it may incidentally be observed that there was no miscarriage of justice or abuse of process of law and to secure the ends of justice order is not required to be recalled or set aside. Rather, an ultimate analysis of the order impugned leads me to opine tentatively that the decision of the Single Bench affirming the ld. Magistrate's findings appears to be just and correct one for the simple reason that the ld. Magistrate is absolutely justified in holding that the veracity of grounds challenging maintainability of a proceeding under section 125 Cr. P.C. as set forth in the petition seeking for 8 dismissal of the maintenance proceeding is required to be tested only on the yardstick of evidence both ocular and documentary as may be adduced by both sides during trial and the petition challenging the maintainability is, in fact, not entertainable at that preliminary stage of maintenance proceeding under section 125 Cr. P.C. Accordingly, the ld. Single Judge refused to interfere with the order of the ld. Magistrate in exercise of its revisional jurisdiction. The matter was thus disposed of on merit.
21 In this factual and legal context it may safely be held that circumstances requiring the use of inherent power cannot be foreseen. So the occasion to invoke inherent power would not necessarily arise when the code has provided the method to meet the contingency. Therefore, there should not be any occasion for the exercise of any inherent power when there exists a specific provision in the statute itself to deal with the matter. Accordingly, whenever the revision in question has finally been disposed of on merit by this Court a fresh prayer for the same relief in the grab of restoration petition on the plea of exercise of inherent power is not entertainable. That apart, it is well-settled position of law that inherent power under section 482 Cr. P.C. is to be exercised very sparingly in the rarest of rare cases, if compelling situation demands so in appropriate cases.
As already discussed earlier, in the ultimate analysis of background facts, it is quite evident that there was neither any miscarriage of justice nor any abuse of process of law and indeed fact situation does not require any interference to prevent the abuse of process of law or to secure ends of justice in the case on hand.
22. Fortified with the principles of law laid down is the recent rulings of the Hon'ble Apex Court and the Full Bench decision of this High Court, I, am to hold that there is no inherent power in the High Court under section 482 Cr.
9P.C. to alter or review its own judgment once it has been pronounced except in cases where it was passed without jurisdiction or in default of appearance i.e. without affording any opportunities to the petitioner to present his case.
23. The petitioner's contention that when a judgment is delivered without giving reasonable opportunity to the petitioner it should be held that the judgment was passed without jurisdiction and the High Court has power to make an order for its re-hearing is of no consequence for the simple reason that there lies a sharp distinction between disposing of the case with notice to a party and without notice to a party. In the present case, it is quite evident from the averments itself made by the petitioner himself that he had notice about the listing of the case but because of transport problem he failed to attend Court when the matter was called. On his prayer the hearing of the case was adjourned twice earlier. In such circumstances, it cannot be accepted that he had no notice or no effective opportunities of being heard. Furthermore, it is needless to mention that Sankar Prasad Mitra J, had determination to dispose of the case. It is also an admitted position that the revisional application was not dismissed for mere default of appearance. Therefore, the instant case does not fall within these two exceptions as indicated hereinabove.
24. In this connection, it is also pertinent to mention that in case of both the rulings cited on behalf of the petitioner, the order passed by the High Court was set aside by the Hon'ble Supreme Court with a direction to hear afresh on the peculiar circumstances of the respective case. In fact, the ld. counsel for the petitioner urges this Court to sit over the decision of the ld. Single judge and exercise Appellate power for reversing the order passed by another Single Bench of this Court. Such argument appears to be fallacious one. In such circumstances, afore-mentioned two rulings are easily distinguishable.
1025. In the light of fore-going discussion it is therefore, held that the Code of Criminal Procedure does not authorise the High Court to review its Judgment or Order passed either in exercise of its appelate, revisional or original jurisdiction and such power cannot be exercised under the cloak of section 482 Cr. P.C. since section 362 Cr. P.C. operates a bar for reviewing not only its judgment but also its final order except in cases of clerical or arithmetical errors. Therefore, exercise of power under section 482 Cr. P.C. to re-open or alter an order disposing of a petition decided on merit is not legally permissible since such exercise of power is specifically prohibited by the Code.
26. Contextually it is also relevant and appropriate to point out that the Code of Criminal Procedure does not preserve any inherent power for the subordinate Criminal Courts in order to secure the ends of justice or to prevent the misuse of the process of the Court. On the other hand Section 151 of the Civil Procedure Code furnishes legislative recognition of the well- established principle that every Court has inherent power to dispense real and substantive justice or to prevent abuse of the process of the Court, if it is necessitated to meet exigencies arising out of unforeseen situations and exceptional circumstances. However, significantly, the legislature in its wisdom has not chosen to safeguard existing inherent powers of the subordinate Criminal Courts, if any by incorporating any such section in the Code itself. Therefore, it can safely be concluded that there is no inherent power available to be exercised by any subordinate Criminal Court, although such power is exclusively available only to the High Court. Accordingly, it is held that unlike a Civil Court, Criminal Court of Magistrate or Sessions Judge other than the High Court do not possess any inherent powers - nay at least there is no such express provision in the Criminal Procedure Code itself.
27. That apart, it is also to be noted that after disposal of CRR No. 2546 of 2009 on merit vide order dated 24.07.09 there was no lis pending before the High Court wherein the petitioner could have filed any CRAN /Misc. petition.
11Relying upon a ruling of the Hon'ble Apex Court reported in (2001)1 SCC 169(Hari Singh Mann. Appellant Vs Harbhajan Singh Bajwa & Ors.- Respondents) it is further held that the practice of filing of such Misc. Petition in the nature of CRAN after disposal of main petition, is unwarranted and disgusting.
28. Before parting with the matter, it is clarified that this court has not entered into the merit of the proceeding under section 125 Cr. P.C. pending between the parties before the ld. ACJM Alipur, 24 Parganas (South). This court have had also no occasion to test the veracity of allegations made in the restoration petition and also counter allegations / submission, if any at any stage of this case before the High Court .
29. All issues including the question of maintainability of the proceeding are kept opon for its adjudication by the ld. Additional Judicial Magisterial Alipur during trial. All observations made by this court hereinbefore are absolutely tentative in nature and have been made only for the limited purpose of deciding the sole point formulated by this Court.
30. Having regard to the peculiar nature and character of the circumstances leading to institution of the proceeding under section 125 Cr. P.C. by the petitioner wife, a Gynecologist by profession against her physician husband, and also subsequent filing of a petition challenging maintainability of the proceeding itself by the husband in a preliminary stage, I am to opine that the interest of justice would be served in a more meaningful way, without causing any prejudice to the right and contention of either of the parties if maintenance proceeding itself is disposed of with utmost expedition. Keeping in view that aspect of the matter the ld. Additional Chief Judicial Magistrate, Alipur is directed to dispose of the Misc. Case No.18 of 2009 under section 125 Cr. P. C. pending before him as expeditiously as possible preferably within 31st December 2009 in accordance with law after affording reasonable opportunity of being heard 12 to both the parties who will be at liberty to adduce respective evidence both oral and documentary. The ld. Trial Court would proceed to record evidence on day-to-day basis without granting unnecessary adjournment to either of the parties till the conclusion of the proceeding.
31. It is also made clear that the maintenance proceeding shall be considered and decided on its own merit without being inhibited or influenced by the observations, if any made by this court at the time of disposal of this application under section 482 Cr. P.C.
32. In the result , I hold that the petition for re-hearing is devoid of merit and not maintainable. Accordingly, CRAN No. 2025 of 2009 stands dismissed with the observations as indicated hereinbefore.
(Raghunath Ray, J.) 13