Orissa High Court
Kailash Chandra Sahu @ Sahoo And vs Mr. Bijay B. Mishra on 12 March, 2024
Author: R.K. Pattanaik
Bench: R.K. Pattanaik
AFR IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No. 3201 of 2022
Kailash Chandra Sahu @ Sahoo and .... Petitioners
Another
Mr. Rajendra Kumar Pradhan, Advocate
-Versus-
Mr. Bijay B. Mishra, Assistant .... Opposite Party
Director, Enforcement Directorate,
Govt. of India, Bhubaneswar
Mr. P.K. Ray, Senior Advocate &
Mr. Bibekananda Nayak, Advocate for ED
CORAM:
JUSTICE R.K. PATTANAIK
DATE OF JUDGMENT:12.03.2023
1.Instant miscellaneous petition in I.A. 2812 of 2022 is filed by the opposite party for recall of the final order dated 15th November, 2022 disposing it of with a direction to the petitioners to appear before the court of the learned District and Sessions Judge, Khurda at Bhubaneswar-cum-Special Judge, PMLA Act, 2002 (in short 'the Special Court') in connection with Criminal Misc.(PMLA) Case No.55 of 2019 for being released on bail on such terms and conditions while denying the request for dispensing with their personal attendance in terms of Section 205 Cr.P.C. on the ground that the same is legally not tenable.
2. In fact, after the final order dated 15th November, 2022, this Court, entertaining the request of the opposite party, directed the same to be kept in abeyance by order dated 2nd December, 2022 in I.A. 2812 of 2022 in order to facilitate a hearing since such release of petitioners on bail later to their appearance before the Special Court was claimed to be against the spirit of law and in particular, with reference to Section 45 of the Prevention of CRLMC No.3201 of 2022 Page 1 of 17 Money Laundering Act, 2002 (hereinafter referred to as 'the PMLA').
3. Heard Mr. Ray, learned Senior Advocate and Mr. Nayak, learned counsel for appearing for the Enforcement Directorate (ED) and Mr. Pradhan, learned counsel for the petitioners.
4. Bereft of unnecessary details, the case in brief is that the complaint in Criminal Misc.(PMLA) Case No.55 of 2019 under Section 45 of PMLA was filed against the petitioners for having committed offence defined under Section 3 of the PMLA and punishable under Section 4 thereof emerging out of a disproportionate assets case registered against them under the Prevention of Corruption Act. In so far as, the predicate offence is concerned, Vigilance PS Case 40 of 2010 was registered which corresponds to G.R. Case No.08 of 2010 pending in the Court of learned C.J.M, Cuttack under Section 13(2) read with Section 13(1)(e) of the Prevention of Corruption Act, wherein, petitioner No.1 stands chargesheeted for being in possession of assets to the tune of Rs.53,16,083/- disproportionate to his known source of income to which he failed to account for satisfactorily. Later to the Vigilance case, ED filed the complaint under the PMLA. In the said complaint, the learned Special Court took cognizance of the offence under Section 3 of the PMLA and summoned the petitioners to appear before it on 7th January, 2021. Upon receiving summons, the petitioners appeared through their engaged counsel and on 9th August, 2021, moved an application before the learned court below, seeking exemption from personal attendance in terms of Section 205 Cr.P.C. on such other grounds besides the following that both of them have already been released on bail in the Vigilance case and as to petitioner No.1, he is a retired Government servant and a permanent resident of CRLMC No.3201 of 2022 Page 2 of 17 Bhubaneswar and also suffering from old age ailment. The learned Special Court after issuance of summons (Annexure-1) and receiving the application under Section 205 Cr.P.C. (Annexure-2) and upon hearing the parties, by order dated 30th August, 2022 (Annexure-3), rejected such a request for exemption on the ground that Section 45 of the PMLA is restrictive in nature and that apart, for the offence being serious in nature. Such rejection of the application under Section 205 Cr.P.C. was challenged, which led to the decision dated 15th November, 2022, later put on hold by order dated 2nd December, 2022 in the IA.
5. Mr. Ray, learned Senior Advocate and Mr. Nayak, learned counsel for ED would submit that the Court could not have ignored Section 45 of the PMLA and allowed the petitioners to go on bail since restrictions have been imposed under law with an exercise to be undertaken providing the Prosecution an opportunity of hearing. So to say, according to Mr. Ray, learned Senior Advocate, the Court ought not to have exercised the jurisdiction under Section 482 Cr.P.C. allowing the petitioners to appear and be released on bail overlooking the restrictions stipulated in Section 45 of the PMLA as the same is required to be statutorily complied with. Referring to the decision in Vijay Madanlal Choudhury & others Vrs. Union of India & others 2022 SCC ONLINE SC 929, Mr. Ray contends that jurisdiction under Section 482 Cr.P.C. could not have been exercised in the present case overlooking Section 45 of the PMLA. It is contended that in the aforesaid decision, the Apex Court held that Section 45 of the PMLA and conditions mentioned therein govern the subject on bail and even the Constitutional Courts should be loath to ignore the express mandate of the statute which imposes stringent conditions of bail vis-à-vis a person accused of an offence under the PMLA. Again referring to a case law in Hema Mishra Vrs. State CRLMC No.3201 of 2022 Page 3 of 17 of UP and others (2014) 4 SCC 453 discussed in Vijay Madanlal Choudhury (supra), the further contention is that bail should not have been allowed vis-à-vis the petitioners. Essentially the argument of Mr. Ray and Mr. Nayak, learned counsel for ED is that the twin conditions of Section 45 of the PMLA are applicable which cannot be disregarded by the Court as in view of the decision in Vijay Madanlal Choudhury (supra), it has been held that the conditions are equally applicable to the Court. In fact, the challenge before the Apex Court in the aforesaid decision was to the constitutionality of some of the provisions of the PMLA and the procedure followed by the ED which was upheld and referring to the rigour of law discussed therein and the conditions stipulated in Section 45 PMLA. It is submitted that the exemption of the petitioners from personal attendance since impermissible, for that matter, their release on bail as it has been directed by order dated 15th November, 2022 is not legally tenable, hence, therefore, the order dated 2nd December, 2022 in I.A No.2812 of 2022 shall have to be made absolute leaving it open for the petitioners to work out the remedy before the Special Court. The further argument is that the learned Special Court has issued non- bailable warrants of arrest against the petitioners, hence, therefore, exemption under Section 205 Cr.P.C. is no more entertainable and furthermore, not to be invoked, when it relates to a warrant triable case. Lastly, referring to the decision of the Apex Court S. Nagaraj & others Vrs. State of Karnataka & another 1993(3) SCALE 548, it is contended that correction of an order stems from the fundamental rule of justice, which is necessary to prevent abuse of process of law, hence, in the present case, the Court is not precluded from recalling its order dated 15th November, 2022. Finally, the contention is that the petitioners since did not turn up despite repeated summons and in the CRLMC No.3201 of 2022 Page 4 of 17 meantime, non-bailable warrants of arrest stand issued and for the fact that no case for exemption under Section 205 Cr.P.C. to have been made out, any such direction for release on bail which is against the tenor of Section 45 of the PMLA, it would be just and proper to review and recall the final order and to confirm the order dated 2nd December, 2022 in the IA to facilitate due process of law to be followed with the liberty for the petitioners to avail the remedy before the learned Special Court.
6. On the contrary, Mr. Pradhan, learned counsel for the petitioners would submit that not only the final order is legally tenable but also nothing prevents the Court from passing such order directing release of the petitioners highlighting upon the powers exercisable under Section 482 Cr.P.C. keeping in view the law laid down in R.P. Kapur Vrs. State of Punjab, AIR 1960 SC 866 and ratio of the decision of the Apex Court in the case of State of Haryana & others Vrs. Bhajan Lal & others 1992 Supp (1) SCC 335. It has been contended by Mr. Pradhan that the Court though declined to allow exemption rightly directed the petitioners to appear before the learned Special Court with their release on bail subject to conditions. The decision in M/s Bhaskar Industries Limited Vrs. M/s Bhiwani Denim and Apparels Ltd. & others AIR 2001 SC 3625 is also placed reliance on by Mr. Pradhan to satisfy the Court that even in a case under the PMLA, applying the same principles, exemption in terms of Section 205 Cr.P.C. may be allowed. It is contended that the Apex Court in M/s Bhaskar Industries Limited (supra) held that in circumstances where the accused is in actual hardship due to ailment etc., his personal attendance before the Magistrate should be exempted and in case, it is proved that such insistence to appear in person would inflict enormous suffering or tribulation on him. Furthermore, Mr. Pradhan referring to the Apex Court decision in CRLMC No.3201 of 2022 Page 5 of 17 Vijay Madanlal Choudhury (supra) contends that the special powers of the Court regarding grant of bail is not affected by Section 45 of the PMLA. It is also contended that the petitioners are otherwise eligible for bail since the amount of money involved is less than one crore rupees which is in view of 1st proviso to Section 45 of the PMLA, if such exemption from personal attendance is not considered. The contention of Mr. Pradhan, learned counsel for the petitioners is that notwithstanding a special statute with powers conferred and Section 45 of the PMLA, the Court is not denuded of its authority to deal with exemption under Section 205 Cr.P.C. or to pass any such orders in exercise of its inherent jurisdiction under Section 482 Cr.P.C. Hence, it is contended that the exemption of the petitioners since not allowed, still order dated 15th November, 2022 is to be given effect to. In other words, Mr. Pradhan submits that the order dated 15th November, 2022 is not to be recalled as the Court rightly in the facts and circumstances of the case directed the petitioners to appear and to go on bail before the learned Special Court though declined to allow exemption from appearance in person. In reply and response to the contention of the ED, Mr. Pradhan, learned counsel for the petitioners justifies the order of release which has been directed while exercising inherent jurisdiction citing the decision in Bhajan Lal (supra). It is submitted that Section 205 Cr.P.C. equally applies to a PMLA case and hence, learned Special Court has the jurisdiction to consider it and likewise, release of person accused of a money-laundering offence is not barred despite Section 45 of the PMLA. It is contended that there is no bar to invoke and direct exemption under Section 205 Cr.P.C. in a warrant triable case or in view of Section 45 of the PMLA with the twin conditions in place for any person while seeking release on bail.
CRLMC No.3201 of 2022 Page 6 of 177. In so far as, Section 45 of the PMLA is concerned, it is stipulated therein that no person accused of an offence under the said Act shall be released on bail or on his own bond unless the Public Prosecutor has been provided an opportunity to oppose the same and where it is objected, the Court is to satisfy itself that there are reasonable grounds for believing him not guilty of such offence and that he is not likely to commit any offence while on bail with a proviso that the Special Court may direct release if he is under sixteen years age, or a woman, or is a sick or infirm, or an accused either on his own or along with other co-accused of money-laundering a sum of less than Rs.1 crore. It also deals with provision regarding the Special Court to take cognizance of offence punishable under Section 4 of the PMLA except upon a complaint in writing made by the Director or any officer so authorized by the Govt. As per sub-section (1-A) of Section 45 of the PMLA, there shall be no police investigation into an offence under the Act unless specially authorized in that regard. Sub- section(s) (1) and (1-A) of Section 45 begin with non-obstante clause which shall have overriding effect vis-à-vis the provisions of the Code of Criminal Procedure 1973. As per sub-section (2) thereof, the limitation on granting bail specified in sub-section (1) shall be in addition to the provisions of the Cr. P.C. or any other law for the time being in force. Referring to the twin conditions of Section 45(1) of the PMLA, it is contended by Mr. Ray, learned Senior Advocate for ED that the petitioners cannot claim exemption from personal appearance under Section 205 Cr.P.C. and furthermore, not to be released on bail. Such release by the Court, as further submitted, in exercise of powers under Section 482 Cr.P.C. is not permissible as there is apparently a prohibition against exemption as well as release on bail except on fulfillment CRLMC No.3201 of 2022 Page 7 of 17 of conditions stipulated therein and in cases falling in any of the categories described in 1st proviso to Section 45(1) of the PMLA.
8. With humility and respect, the view of the Court is that in so far as Section 205 Cr.P.C. is concerned, exemption from personal attendance may be demanded even by a person prosecuted under the PMLA notwithstanding the restrictions in Section 45 thereof and hence, to claim that there is a ban so to say against exemption in case under the PMLA would not be a correct approach. The exercise of discretion seeking dispensing with personal appearance in terms of Section 205 Cr.P.C. is distinct from demanding release on bail which attracts Section 45(1) of the PMLA. In other words, release of the person accused of an offence under the PMLA shall be subject to Section 45. But before release on bail, such person accused of an offence under the PMLA has every right to knock the doors of the Special Court seeking exemption under 205 Cr.P.C. even when warrant of arrest is issued against him and pending execution. Both the aforesaid provisions operate in distinct and different fields one is before demanding bail and seeking exemption and the consideration of the other at the time of dealing with the request for bail with the satisfaction of the Special Court to arrive at. Similarly, to hold that in a warrant triable case, Section 205 Cr.P.C. is not to be invoked is again incorrect to exclaim. Section 205 Cr.P.C. does not relate to a summons case only. Rather such provision stipulates that a Magistrate at the time of issuance of summons in a given case may for reasons dispense with personal attendance of the accused and permit him to appear through his pleader. To contend that Section 205 Cr.P.C. is exclusively meant for summons triable case or not applicable or invocable in a warrant case, as it has been contended, is wholly misconceived. It would again be a fallacy to contend that Section 205 Cr.P.C.
CRLMC No.3201 of 2022 Page 8 of 17would apply to a Magistrate and not to a Special Court. In the humble view of the Court, notwithstanding Section 45(1) of the PMLA, which of course puts restrictions towards release on bail subject to satisfaction of the twin conditions does not create a bar for a person to demand exemption from personal appearance, which is to be examined on the criteria as specified and in terms of Section 205 Cr.P.C. Any court even a Magistrate or a Special Court shall have the jurisdiction to entertain a request for such exemption under Section 205 Cr.P.C. and to claim that it is absolutely prohibited on account of Section 45 of the PMLA would again be a wrong view and in so far as, release of bail is concerned, the same without doubt is to be considered by the Special Court under the PMLA taking into account the rigour of law. Hence, irrespective of such a provision in the PMLA which is considered at the time of release of a person on bail, exemption in terms of Section 205 Cr.P.C. may still be requested before the Special Court. So, the contention of Mr. Ray, learned Senior Advocate appearing for the ED that there is a ban against seeking exemption from personal attendance or not to consider it in view of Section 45 of the PMLA and furthermore, such discretionary power cannot be exercised by a Special Court but only meant for a Magistrate and not applicable to a warrant triable case is out rightly misplaced and hence, liable to be rejected.
9. Of course, in Lily Begum Vrs. Joy Chandra Nagbanshi 1994(2) SCC39, it has been held and observed by the Apex Court that personal attendance of an accused invoking powers under Section 205 Cr.P.C. in offences of serious nature is not to be exercised as in such cases confidence in the administration of justice would be lost. It has been held therein that in extreme and exceptional circumstances, the court may consider the request for dispensing with the personal attendance of an accused and may pass CRLMC No.3201 of 2022 Page 9 of 17 appropriate orders in that regard. The aforesaid decision has been referred to by Mr. Ray, learned Senior Advocate to contend that the case of the petitioners since relates to an offence under the PMLA with serious allegation, exemption under Section 205 Cr.P.C. is not permitted. As it has been concluded by the Court that there is no absolute bar to exempt personal appearance of accused under Section 205 Cr.P.C. even in respect of a case under the PMLA, it is supplemented by observing that the said Act is not to affect or fetter the powers of the Special Court to deal with such a request for exemption or in any way is debarred from allowing it. So, it is reiterated that the restrictions as made to appear from Section 45 of the PMLA are confined to considering release on bail of the person accused of an offence under the said Act and upon satisfaction of the Special Court that there are reasonable grounds to believe that he is not accused of such an offence and not likely to commit any offence while on bail subject to the exceptions and may by taking judicial notice of the twin conditions or severity of the allegations refuse his exemption from personal appearance. There is no denial to the proposition of law that while exercising jurisdiction by a Constitutional court, the underlying principles and rigour of Section 45 of the PMLA Act shall apply.
10. In the instant case, exemption under Section 205 Cr.P.C. was claimed by the petitioners, which was denied by the learned Special Court on the ground that the offence is a serious one and furthermore, Section 45 of the PMLA is restrictive in nature. The Court, though was not inclined to exempt personal appearance of the petitioners, by order dated 15th November, 2022 directed them to appear before the learned Special Court for being released on bail subject to conditions. The petitioners are residents of Bhubaneswar and hence, the Court in absence of any CRLMC No.3201 of 2022 Page 10 of 17 ground made out considered it not to be proper to allow their exemption but instead having regard to the fact that they are accused of having committed a predicate offence and complaint filed under Section 45 of the PMLA and for having not been arrested during investigation before the filing of such complaint deemed it just to allow their release on bail. Admittedly, the Court's order dated 15th November, 2022 was passed at the stage of admission before response of the ED was received but with the participation of the State. Though an exercise is undertaken in view of Section 45 of the PMLA and the learned Special Court is to reach at a conclusion as to if the petitioners are entitled for bail, notwithstanding their personal exemption denied, the Court is of view that in response to the summons issued by the court below, both are required to respond to it but at the same time, with the conclusion that the inherent jurisdiction may be exercised in a given set of facts, they should be allowed to go on bail on the premise that their arrests have not taken place during investigation in the PMLA case leading to the filling of complaint and that, in any view of the matter, it falls in one of the categories specified in 1st proviso to Section 45 of the PMLA regarding the sum involved in money-laundering to be less that rupees one crore.
11. One of the limbs of argument of Mr. Pradhan, learned counsel for the petitioners is that the IA is maintainable after disposal of the petition under Section 482 Cr.P.C. on merit. It is contended that the matter cannot be reopened or the final order altered, when it has been disposed of after hearing and on merits and when the Court becomes functus officio and furthermore, Section 362 Cr.P.C. expressly bars review except to correct clerical or arithmetical error. It is argued that recall of the order would amount to alteration or review which is not permissible in view CRLMC No.3201 of 2022 Page 11 of 17 of Section 362 Cr.P.C. and in support of such contention, the decision of the Apex Court in the case of State of Madhya Pradesh Vrs. Man Singh 2020 CriLJ 643 (SC) is referred to. It is further contended that a proceeding already disposed of cannot be reopened by means of a miscellaneous application and in support thereof, the following citations in State of U.P. Vrs. Shri Brahm Datt Sharma and another AIR 1987 SC 943 and Sushant Kumar Roy Vrs. Mira Roy and others AIR 2007 ORISSA 26 are placed reliance on. As a counter, Mr. Ray, learned Senior Advocate for the ED referred to the decision in S. Nagaraj (supra) to remind the powers of the Court inherent to correct or rectify the error, which originates from the fundamental rule of justice and when it is necessary to prevent abuse of process of law. In Man Singh (supra), it is reiterated that the Court has no jurisdiction to review its order either under Section 362 or 482 Cr.P.C. as after disposal of a petition on merit, it becomes functus officio and any such recall would result in review, which is barred under law. In Shri Brahm Datt Sharma (supra), the Apex Court held that no miscellaneous application could be filed to revive a proceeding and therein, it was insisted upon on the basis of subsequent events. The aforesaid decision was against the setting of fresh cause of action, which could not have been entertained after disposal of the writ petition. In Sushant Kumar Roy, the Apex Court, following the decision in Shri Brahm Datt Sharma (supra), held such view on the principle that if a certain course is not followed and matters are reopened after disposal on merit, there would be confusion and chaos and the finality of proceedings would cease to have any meaning. There is no tenebrosity in the settled position of law that neither a writ of certiorari nor supervisory jurisdiction of the Court is available to correct errors of facts or of law unless the error appears to be manifest and CRLMC No.3201 of 2022 Page 12 of 17 apparent on the face of record and when such error or wrong is based on clear ignorance or utter disregard of the provisions of law as a result whereof, gross injustice would result. The final order in the case at hand is sought to be recalled on the ground that release of the petitioners could not be directed in view of Section 45 of the PMLA and the decision of the Apex Court in Vijay Madanlal Choudhury (supra). As a reply to such contention, the Court is of the humble view that exercise of powers under Section 482 Cr.P.C. is wide and expansive to deal with a particular situation and to pass orders to do substantial justice. Where exemption is denied but having regard to the facts and circumstances of the case against the setting of having not been arrested by the ED with the complaint filed after completion of investigation for an offence under PMLA, any such order to direct release of the petitioners on appearance before the Special Court cannot be said to be an error of law. The release of a person accused of having committed an offence of money-laundering is to be considered following the procedure prescribed in Section 45 of the PMLA but while dealing with a matter exercising inherent jurisdiction, whether exemption should be permitted or not, any such direction in a particular set of facts is not an error of law needed to be remedied. In Vijay Madanlal Choudhury (supra), what the Apex Court held is that the underlying principles and rigour of Section 45 of the PMLA may apply irrespective of the nature of the proceedings including under Section 438 Cr.P.C. or even upon invoking the jurisdiction of Constitutional Courts. It does not mean that bail cannot be entertained or considered while exercising or invoking inherent jurisdiction but without doubt, any such release shall have to be keeping in view the rigour of Section 45 of the PMLA. There is no quarrel over the procedure followed while dealing with a matter of bail as CRLMC No.3201 of 2022 Page 13 of 17 envisaged in Section 45 of the PMLA but to claim that inherent jurisdiction is not to be exercised under any circumstances is something, which is really not comprehended. Though the Courts' final order dated 15th November, 2022 does not elaborate the reasoning in very many words but such is on account of the admitted facts about a case arising out of a predicate offence and the closure of investigation into the PMLA offence without arrest of the petitioners, who were examined all through and never avoided any such enquiry and all the more when, the amount of money-laundering is of an amount less than one crore rupees which further entitles them to demand bail. Against the aforesaid setting of facts and when jurisdiction is exercised not being oblivious of the rigour of Section 45 of the PMLA, directing release of the petitioners on bail with a hearing and participation of the State, of course while examining correctness and legality of an order of the Special Court refusing exemption from personal attendance, is not to be branded as an error of law or in violation of the principles decided in Vijay Madanlal Choudhury (supra).
12. As regards maintainability of the miscellaneous application, there is no dispute over the position of law that the same is not to be entertained when the proceeding sought to be reopened was disposed of on merit as in such a situation it would lead to uncertainty further subjecting the litigants to unending misery. In the present case, there has been challenge to the final order on the premise that error in law has taken place or the decision to be based on ignorance or disregard to the provisions of PMLA but after having entertained the plea and request, keeping it in abeyance, the real object and purpose being to clarify the position, the irresistible conclusion of the Court is that the ground upon which the miscellaneous application is filed and based on is unfounded as the Court is well aware of the rigour of Section 45 CRLMC No.3201 of 2022 Page 14 of 17 of the PLMA and never lost sight of it and hence, reiterates that such decision deserves no revisit. The above exercise is undertaken only to allay the doubts which resonated since the disposal of the matter was at its vey inception ironically without a detailed reasoning.
13. To sum up and to meet the query of the ED, the following conclusion is drawn, which is reproduced herein below in seriatim:
(i) powers exercisable by a Magistrate under Section 205 Cr.P.C. is not confined to summons triable cases but equally applicable to warrant cases and forms a part of the procedure followed on commencement of the proceedings before Magistrates under chapter XVI of the Cr.P.C. and of course exemption shall be subject to fulfillment of the conditions necessary while demanding it;
(ii) the expression 'whenever a Magistrate issues summons' occurring in Section 205 Cr.P.C. is to be read as and with reference to the 'Presiding Judge of the Special Court' trying a case of money-laundering under the PMLA, hence, such a request is entertainable as the provisions of the of the Special statute are to be read in harmony unless it abrogates any such general law and such exclusivity is not to be readily inferred referring to the non-obstante clause appearing in Section 45 of the PMLA;
(iii) exercise of inherent jurisdiction is not fettered by any limitation, of course not to be resorted to stifle or CRLMC No.3201 of 2022 Page 15 of 17 override any provision or ignoring rigour of law but to administer and to do ex debito justitiae;
(iv) Section 45 of the PMLA does relate to a procedure to be followed while dealing with matters of bail keeping in view the twin conditions which cannot be overlooked even while exercising jurisdiction by the Constitutional Courts as held in Vijay Madanlal Choudhury (supra) but it does not by any stretch of imagination prohibits the Special Court from considering exemption under Section 205 Cr.P.C. which in certain cases may be allowed taking into account the severity of the allegations and extent of hardship, it would result in directing the personal attendance;
(v) miscellaneous applications may be entertained by the Court even after disposal of the matter on merit but only to correct errors appear to be manifest and apparent on the face of the record and when such wrong or mistake is based on clear ignorance or utter disregard of the provisions of law leading to gross injustice beyond repair;
(vi) any other view or course of action to restore a proceeding finally disposed of by such means, as rightly held by the Apex Court in Shri Brahm Datt Sharma and Sushant Kumar Roy (supra), would tantamount to review or recall expressly barred under Section 362 Cr.P.C. and would certainly lead to a lot of confusion and chaos without finality of the proceedings thereby severely affecting the litigants and upsetting the judicial discipline and propriety;
CRLMC No.3201 of 2022 Page 16 of 17(vii) the jurisdiction of any kind must have to be based on judicial conscience and it would depend on the facts and circumstances of a particular case unless the exercise of it is clearly forbidden, which, as earlier stated, not to be immediately borrowed or inferred.
14. With the discussion as aforesaid, the conclusion which is deduced therefrom is that no ground is made out for recall of the decision concerning the petitioners, which is justified and best suited to the peculiar facts of the case.
15. Hence, it ordered.
16. In the result, the petition in I.A. 2812 of 2022 stands dismissed with the final order dated 15th November, 2022 being confirmed and as a consequence whereof, the petitioners are directed to appear or surrender, as the case may be, before the learned Special Court in compliance of the directions issued for being released on suitable conditions imposed.
(R.K. Pattanaik) Judge Rojina Signature Not Verified Digitally Signed Signed by: ROJINA SAHOO Designation: Junior Stenographer Reason: Authentication Location: OHC, CTC Date: 12-Mar-2024 17:03:04 CRLMC No.3201 of 2022 Page 17 of 17