Karnataka High Court
Seenappa Shetty vs Bhujanga Shetty on 9 August, 1991
Equivalent citations: ILR1991KAR3854, 1991(4)KARLJ716
ORDER R. Ramakrishna, J.
1. The learned Counsel for the petitioners Smt. Suman Hegde has filed the above noted applications (i.e., I.A.III in Cr.R.P. No. 477/89 and I.A.III in Cr.R.P. No. 468/1989) on behalf of the respective petitioners praying that the Judgment dated 7-3-1991 passed in Cr.R.P. No. 477/1989 and Cr.R.P. No. 468/1989 passed by this Court may kindly be recalled and petitioners be permitted to urge their arguments on merits.
2. Before considering the applications for recalling the earlier Judgment of this Court, it is necessary to make a brief advertence to the facts.
3. in Cr.R.P. No. 477/1989, the petitioner was the 4th accused and in Cr.R.P. No. 468/1989, the petitioner was the 5th accused in C.C. No. 93/1989. The common respondent K. Bhujanga Shetty has flied a complaint under Section 200 of the Code of Criminal Procedure (shortly called as 'the Code') against 9 accused persons in the Court of JMFC I Court, Hubli, for the offences punishable under Sections 120-B, 540, 506 read with Section 34 of the Indian Penal Code, The trial Court after taking cognizance of the complaint, the same was registered in P.C. No. 26 of 1989. The sworn statement of the complainant and two other witnesses were recorded on 30-9-1989 and 3-10-1989 respectively. On the basis of the sworn statement, the trial Court found that the complainant has made a prima facie case to proceed against the accused and ordered issue of summons to all the accused under Section 204 of the Code, it appears, that a paper publication was also made in respect of the Court taking cognizance of the complaint, fifed by Bhujanga Shetty, and further proceedings that was held before that Court.
4. However, the learned Counsel has not filed any application for recalling the Judgment of this Court in respect of A.1, A.2, A.3, A.7 and A.9 who have also flied a separate Criminal Petition No. 489/1990 which was dubbed with Cr.R.P. No. 477/1989 and Cr.R.P. No. 468/1989 and a common order was passed by this Court as the facts alleged in all the petitions were similar. Since the prayer made in I.A.III in both the Cr.R.Ps. are one and the same, a common order is passed.
5. These petitions, however, came up for consideration before different Benches of this Court. The petitions were admitted and further proceedings in C.C. No. 937/1989 were ordered to be stayed only in respect of the concerned petitioners and the notice was ordered to be issued for the respondent. After appearance of the respondent the petitions were posted for hearing. On 7-3-1391, the petitions were decided in the absence of the learned Counsel for the petitioners and a considered Judgment was passed by this Court after taking into consideration the materials available in the respective case files. A common order has been passed in view of the prayer of different petitioners were one and the same. This Court also noted in the order sheet that after having awaited for the appearance of the learned Counsel for the petitioners and the respondent has proceeded to pass an Order on merits at about 4-15 P.M.
6. The above facts are narrated only to show that the orders were passed on merits. At the conclusion of the dictation of the Order, the learned Counsel for the respondent in each of the petitions appeared and the same was noted in the Order.
7. Now the question that arises for consideration is:
"Whether an application for recalling the order passed on merits exercising the jurisdiction of the Revisional Powers by this Court, amounts to review of the order prohibited under Section 362 of the Code of Criminal Procedure?"
8. The learned Counsel Smt. Suman Hegde has submitted that due to non-receipt of the cause list, she was unable to attend the Court on that day and she has materials that would enable this Court to re-consider the order made earlier. In other words, the submission amounts to review of the order passed by this Court on merits. If an order of dismissal was made ex-parte, without considering the materials available on record, there is no bar for the concerned party to make an application for recalling the order for giving necessary opportunity to urge the points in his favour to enable the Court to pass an order on merits. The learned Counsel, it appears, under the guise of recalling, is virtually asking this Court to review its earlier order passed on merits.
9. Once this Court holds that the prayer made by the petitioners amounts to review of the order, there is legal bar for this Court to review its own order except to correct a clerical or arithmetical error.
10. Under Section 403 of the Code, when a party having no right of being heard personally or by a pleader in Revision, it cannot be said that this Court having called for the Records committed any error by proceeding to pass the order on merits in the absence of the applicant or his Counsel. The criteria is to decide whether a particular order was made on its merits?
11. Few Reported Judgments relied on by the Respondents on this point would make this position clear:
In WALHARI BHAVARAO KULKARNI v. STATE OF KARNATAKA, ILR (Karnataka) 1976, 1452 a similar question arose in a different context, in this case, the High Court disposed of the Criminal Revision Petition on merits in the absence of the Counsel for one of the parties, after hearing the other side. The party who was absent, filed an application under Section 482 of the Code of Criminal Procedure for review of the order. This application was made two days after deciding the Revision Petition on merits. The only ground taken by the learned Counsel in that application is similar to the submissions made by the teamed Advocate in the present petition, that certain important points arose in the case were not considered by the Court and for proper appreciation, re-hearing must be given to the accused. The learned Judge of this Court held:
"In view of Section 362 of the Code of Criminal Procedure, once the Judgment is pronounced the same Court cannot alter or review it except to correct a clerical or arithmetical error. This is a prohibition contained in the Code itself. The question is whether the inherent powers of the Court can be exercised to enable review or correction of the Judgment in direct negation of Section 362 of the Code. In Sankatha Singh v. State of Uttar Pradesh , the learned Judges were considering the inherent powers which could be exercised by the Court. The observation made was that inherent powers cannot be exercised to do what the Code specifically prohibits from doing. Taking the ratio of that case, it can be held that the power of review should not be exercised in the present case as it would go against the provision of Section 362 of the Code. Moreover, the decision was given on merit and it is not a case of that description where some ex-parte order is made in the absence of the Counsel. This Court considered the entire evidence and after deep perusal of the two Judgments pronounced by the Courts below and after hearing the learned State Counsel arrived at a definite finding. Therefore, there is hardly a case for review, even in exercise of inherent powers. The (earned Counsel for the State also relied on Raj Narain v. State ."
12. In KENCHA v. STATE OF KARNATAKA, this Court reiterated the position of law under Section 362 of the Code and held:
"Placing reliance on Raj Kapoor and Ors. v. State (Delhi Administration) the learned Counsel for the applicant in I.A.II submitted that exercising its inherent powers under Section 482 Cr.P.C. the Court may, in the circumstances of the case and in view of the fact that his client had not been heard, may recall that order. The ratio in Raj Kapoor's case will not govern this case. What the Supreme Court observes in that case is that the High Court can in an appropriate case revise an order of a Court subordinate to it exercising its inherent powers under Section 482, even if its revisional power under Section 397 overlaps. It is one thing to say that exercising its inherent powers this Court can interfere with a finding, an order or a sentence of a Court subordinate to it. But it is entirely a different matter to urge that that power is available to this Court to review or recall its own Judgment or final order without there being a specific provision in the Code itself for doing so. The inherent powers of the Court cannot be used to circumvent a specific mandate of the Code itself."
13. In MOSST. SIMRIKHIA v. SMT. DOLLEY MUKHERJEE ALIAS SMT. CHABBI MUKHERJEE AND ANR., AIR 1960 SC 1605 the exercise of inherent power under Section 482 to review its own Judgment came up for consideration before the Hon'ble Supreme Court. In this case, in a private complaint for the offence under Section 422 and 323 of the Indian Penal Code, the Magistrate by exercising his power under Section 192(2) of the Code transferred the case for enquiry under Section 202 of the Code. The Court of II Class Magistrate after examining the witnesses, issued processes to the two accused. This order was challenged by the respondents under Section 482 before the High Court. The main ground of challenge was that, the Magistrate has not taken cognizance before transferring the case. This petition was dismissed on 20-8-1988 after holding that there was no illegality. The respondents again made a petition under Section 482 of the Code before the High Court alleging, inter alia, that the recording of the proceedings, a close scrutiny of the same would indicate that the case had not been taken cognizance before the transfer. The learned single Judge accepted the case and quashed the proceedings. In the circumstances, the learned Judge of the Supreme Court held:
"The Court is not empowered to review its own decision under the purported exercise of inherent power. The inherent power under Section 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. Section 362 of the Code expressly provides 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 save as otherwise provided by the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of Justice or to prevent the abuse of the process of the Court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362."
14. The Decision in ANJANAMMA v. STATE OF KARNATAKA, is a case where an interlocutory application was made under Section 482 of the Code of Criminal Procedure to recall the final order dated 8-1-1988 and to restore the Revision for re-hearing on merits. This is also a case where the applicant has made a ground that, although the Advocate was engaged, he could not file the vakalat as the same was mislaid in his office and the applicant was shown as un-represented and he had no opportunity of being heard in the matter. The matter relates to the return of the property to the complainant/petitioner. A learned Single Judge of this Court held:
"It has been held that the provisions of Section 362 do not restrict the prohibition to the trial Court alone and the provisions in Section 362 are general in application and prohibit all Courts from altering or reviewing its Judgment when once it has been signed and the provisions of Section 482 cannot be invoked for exercise of a power which is specifically prohibited by the Code...In view of the specific prohibition contained in Section 382 Cr.P.C. on the principles of natural justice also it is not possible for the Court either to recall the order or give re-hearing to the parties...Having regard to the provisions of Section 403 Cr.P.C. a party having no such right of being heard either personally or by a pleader in revision, it cannot be said the High Court, having called for the records, had committed any error by proceeding to the Judgment in the absence of the applicant or his Counsel."
15. However, the learned Advocate Smt. Suman Hegde, placed reliance on a Decision of this Court in GIRIDHARILAL v. PRATAP RAI MEHTA, to show that this Court had power to recall its order on the application filed under Section 482 of the Code.
16. The facts of this case were, a complaint was lodged before the Metropolitan Magistrate, Bangalore, against five persons alleging various offences. Two prayers were made in the complaint, one to refer to the police for investigation and alternatively to take cognizance of the offence by the Magistrate and to deal with it in accordance with law. The complaint was referred to the jurisdictional police for investigation and Report under Section 156(3) of the Code. The police have submitted a 'B' Summary Report. After receipt of the 'B' Summary Final Report, a protest petition was filed by the complainant that the police have not investigated the case properly and he will substantiate the offence. The learned Magistrate thereafter, took cognizance and recorded the sworn statement of the complainant and his witnesses. After taking into consideration the complaint averments and the sworn statement, the Court found that there was no sufficient ground for proceeding and therefore, dismissed the complaint under Section 203 of the Code.
17. The complainant having dissatisfied with the order, filed a Criminal Revision Petition in this Court under Sections 397 and 401 of the Code. At the time of admission, this Court heard the learned Counsel for the complainant and allowed the Criminal Revision Petition by setting aside the order of dismissal. The matter was remitted to the learned Magistrate with a direction to make further enquiry and dispose of the complaint in accordance with law.
18. My learned Brother Judge Navadgi, J., placing reliance on a Full Court Judgment of Rajasthan between ABU v. STATE, has allowed the petition holding that there is vital and significant difference between the words, alter, review and recall-Section 362 puts the plaint bar for altering or reviewing of a Judgment or final order on merits and the only power given to the Court is that, it can correct a clerical or arithmetical error. The said Section does not impose any prohibition for recalling an order.
19. I gave my anxious thoughts to the Rajasthan case, and I am not inclined to accept the view expressed by Their Lordships of Rajasthan High Court. The reason is that, this Court exercising its revisional jurisdiction as contemplated under Sections 401 and 403 of the Code of Criminal Procedure would decide the cases even in the absence of the petitioner or his Counsel. While deciding such cases, this Court would give due regard to the facts and circumstances placed before the Court below, the ground of Revision and the law that is applicable on such circumstances. Even if we recall the order on the application made by the petitioner, it virtually amounts to cancelling or abrogating the well reasoned order passed by this Court after giving due regard to the facts and circumstances. There is no statutory provision for recalling the order passed on merits by the same Court unless the said order is annulled by a Superior Court. This obviously means there should be a finality for Judicial orders and this is so reflected under Section 403 of the Code.
20. Now we have two divergent opinions on a single issue:
In Malhari Bhava Rao Kulkarni's case ILR (Karnataka) 1976, 1452, Kencha v. State of Karnataka, and Anjanamma v. State of Karnataka, this Court has consistently held that a review or a recall of the Judgment passed on merits, in the absence of an Advocate, exercising the Revisional Jurisdiction, is barred under Sections 382 and 403 of the Code of Criminal Procedure J respectfully concur with the views expressed in the above Decisions and dismiss these applications.
The above said Decisions are not cited in Giridharilal's case rendered by my learned brother Navadgi, J.
In view of this position, these applications fail and the same are hereby rejected.