Allahabad High Court
Ram Sewak Rai vs State Of U.P. & Others on 23 July, 2010
Author: Ram Autar Singh
Bench: Ram Autar Singh
Court No. - 12 Case :- CRIMINAL REVISION No. - 1002 of 2003 Petitioner :- Ram Sewak Rai Respondent :- State Of U.P. & Others Petitioner Counsel :- Kamal Narain Rai Respondent Counsel :- Govt.Advocate,I.S. Tomar Hon'ble Ram Autar Singh,J.
This revision has been filed against the judgment and order dated 10.1.2003 passed by Sub Divisional Magistrate, Mohammadabad Gohna, District Mau in Case No. 12/14 (Ram Chander Vs. Ram Sewak) under sections 133 Cr.P.C., whereunder the application moved by the applicant for recall of the order dated 22.9.1998 passed in Case No. 67/31/1998 under section 133 Cr.P.C. has been dismissed.
It transpires from the record that respondent no.3 Ram Chandra Rai moved an application on 3.6.1998 before Sub Divisional Magistrate concerned to this effect that the revisionist Ram Sewak Rai started to dig the foundation of his house in the land which was always used by Ram Chandra Rai as his passage since time of ancestor and Ram Sewak Rai tried to close his passage.
The Sub Divisional Magistrate, Mohammadabad Gohna registered Case No. 67 of 1998, under section 133 Cr.P.C. and constituted a team comprising revenue, consolidation and police officials, who conducted measurement of the spot and Tehsildar submitted report dated 6.7.1998. The parties submitted compromise alongwith site plan in the light of above report. The learned Magistrate then decided the case in terms of compromise on 22.9.1998 finally. The revisionist also filed Criminal Revision No. 15 of 2000 against this order but the same was summarily dismissed on account of its being barred by limitation.
The revisionist preferred Criminal Misc. Writ Petition No. 4662 of 2001 (Ram Sewak Rai vs. State of U.P. and others) before this Court for quashing the order dated 22.9.1998 passed by Sub Divisional Magistrate but the same was disposed off with this observation that the writ court could not go into the factual aspect of the dispute as to whether any compromise took place between the parties and the petitioner was thus permitted to approach the same court which passed the said order dated 22.9.1998. The revisionist then moved an application dated 12.9.2001 before Sub Divisional Magistrate concerned for setting aside the order dated 22.9.1998 passed on the basis of alleged compromise with this allegation that the said compromise never took place between the parties. The Review Application No. 12/14 has been dismissed by Sub Divisional Magistrate on 10.1.2003, against which this revision has been filed. I have heard Shri Kamal Narain Rai, learned counsel for the revisionist, learned A.G.A. for respondents no.1 and 2 and Shri Awadesh Rai, learned counsel for respondent no.3 on this revision at length and perused the record.
The learned counsel for the revisionist has contended that the court below had no jurisdiction to decide the said case under section 133 Cr.P.C., because the respondent no.3 nowhere alleged the said land to be public passage, but he always termed the same to be his private passage. Moreover O.S. No. 644 of 1999 (Ram Chandra Rai Vs. Ram Autar) and O.S. No. 757 of 1993 (Ram Autar Vs. Ram Chandra Rai) were instituted before Civil Judge (J.D.), Mau for permanent injunction regarding alleged disputed passage, which was also subject matter of proceedings under section 133 Cr.P.C. and thus court below committed mistake in ignoring the provisions of section 137 (2) Cr.P.C. and illegally decided the same.
The learned counsel for the revisionist has further submitted that the disputed land being a private passage of respondent no.3 proceedings under section 133 Cr.P.C. could neither be initiated nor was legally maintainable. No person to alleged compromise had put his signature on the alleged compromise dated 14.9.1998 and thus the same could not be treated to be a compromise or "Panch Vyawastha", the learned court below committed error in placing reliance on order passed by revisional court in Revision No. 15 of 2000, wherein application under section 5 of Limitation Act was dismissed.
The learned counsel for the respondent no.3, repelling above contentions, submitted that a suit for permanent injunction was filed by the brother of revisionist with regard to the disputed land as the interest of both parties was involved in O.S. No.757 of 1999 pending before Civil Judge (J.D.), Mau. The respondent no. 3 also filed O.S. No. 644 of 1999 regarding the same property, in which temporary injunction was granted in his favour directing both parties to maintain status-quo on the spot. Moreover, the process under section 133 Cr.P.C. was initiated on the application of respondent no.3 but the dispute was decided on the basis of compromise. Now the revisionist got no right to move application for recall of impugned order, because he entered into compromise and after two years he moved the said application for recall of order. There was no provision in Criminal Procedure Code to file recall application in any criminal proceedings. I agree with the contentions of learned counsel for the respondent no.3 that the application moved by the revisionist for recall of the order dated 22.9.1998 was not maintainable in view of any provisions of law, because section 362 Cr.P.C. provides:
"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 off a case, shall alter or review the same except to correct a clerical or arithmetical error."
The Andhra Pradesh High Court in the case of Shaik Bande Ali Vs. State of Andhra Pradesh., 2000 Cri. L.J 2033 (AP), has observed that the High Court can alter, review or modify its judgment before it is transcribed and actually signed by the Judge, but after its pronouncement in open Court, the High Court cannot recall its judgment and rehear the matter. It is true that section 362 Cr.P.C. provides that no Court, when it has signed its judgment or final order disposing off a case, shall alter or review the same except to correct a clerical or arithmetical error. Under the provisions of Criminal Procedure Code no Court can alter or review its own judgment or order except to the extent of correcting clerical or arithmetical error. No power under section 482 Cr.P.C. can be exercised by the High Court to review or alter its own order. The court becomes functus officio the moment official order disposing off a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error.
The mandate of section 362 Cr.P.C. clearly shows that once the Judge has signed its judgment or final order disposing off a case the court shall not alter the same except to such clerical or arithmetical error. There is no provision of Cr.P.C. authorising the court to review its own judgment once it has been signed and delivered. Section 362 of Cr.P.C. is based on acknowledged principal of law that once the matter is finally disposed off by a court, in the absence of specific provision the court becomes functus officio and dis-entitled to entertain a prayer for reviewing the judgment unless the former judgment is set aside by a court of competent jurisdiction in any manner prescribed by law. The court becomes functus officio the moment of official order disposing off a case is signed and such an order cannot be altered except to the extent of correcting clerical or arithmetical error.
In the present revision it has been found that after two years of the judgment and order dated 22.9.1998, the revisionist filed Criminal Revision No.15 of 2000 which was dismissed on the ground of its being barred by limitation and thus the revisionist availed the remedy of revision against the said order in the year 2000. The revisionist then filed Criminal Misc. Writ Petition No.4662 of 2001 (Ram Sewak Rai Vs. State of U.P. and others) for quashing the judgment and order dated 22.9.1998 passed by Sub Divisional Magistrate but no relief was granted by writ court on the ground that the writ court could not go into the factual dispute of the parties. The revisionist then moved an application in the same court for recall of the order dated 22.9.1998 but the same was also dismissed on technical ground that the criminal court could not recall or review its own order in view of section 362 Cr.P.C. and thus the revisionist availed all remedies under law against the order dated 22.9.1998. It has also been found that both the parties filed O.S. No. 644 of 1999 and 757 of 1999 before Civil Judge (J.D.), Mau about the disputed property, which could not be decided by the said court so far. The learned Sub Divisional Magistrate did not commit any illegality or irregularity in passing the impugned order. The court below did not have any jurisdiction to review or recall its own order in view of section 362 Cr.P.C. as discussed above.
Consequently, this revision lacks merit and is dismissed. Both the parties may agitate their rights in above civil suits pending before the Civil Judge (J.D.), Mau.
Order Date :- 23.7.2010 RU