Allahabad High Court
Surajpal vs State Of U.P. And Another on 16 November, 2018
Equivalent citations: AIRONLINE 2018 ALL 5317
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved Court No. - 53 A.F.R. Case :- APPLICATION U/S 482 No. - 25765 of 2018 Applicant :- Surajpal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Mukhtar Alam,Arvind Srivastava Counsel for Opposite Party :- G.A.,Ashok Kumar Singh,Sudhir Mehrotra Hon'ble J.J. Munir,J.
1. This Application under Section 482 Cr.P.C. seeks the following material reliefs:
(A) Quash the orders dated 26.6.2018 and 29.6.2018 passed by Additional Sessions Judge Court No.2 Bareilly in Criminal Misc. Case No.5 of 2017: Smt. Katori Devi Versus Kunwar Pankaj Sub-Divisional Magistrate, Faridpur District Bareilly, arising out of proceedings u/s 145/146 Cr.P.C.
(B) direct the Sub-Divisional Magistrate Pargana and Tehsil Nawabganj, District Bareilly to take the possession of the land in dispute from the opposite party no.2 and hand it over to supurdgar. ........."
2. Heard Sri Mukhtar Alam, learned counsel appearing on behalf of applicant, Sri Sudhir Mehrotra, learned Special Counsel appearing for the High Court, Sri Prabhakar Singh, on behalf of opposite party no. 2, and, Sri M.P. Singh Gaur, learned A.G.A. along with Sri Avanish Shukla, on behalf of State.
3. A counter affidavit has been filed on behalf of opposite party no.2, and, a rejoinder affidavit in reply to the same, on behalf of the applicant. No return has been filed on behalf of the State, despite time being granted for the purpose vide order dated 31.07.2018.
4. The dispute in the present application under Section 482 Cr.P.C. relates to Khasra plot nos.14, 201, 565, 1300, 686 and 892, situate in Village Saripur, P.S. Faridpur, District Bareilly. The said land is an agricultural holding, and, hereinafter referred to as the property in dispute. According to the applicant, he is the recorded bhumidhar in possession of the property in dispute. It is asserted that the name of the applicant's grandfather, Todi, was recorded in the basic year Khatauni, relating to the property in dispute.
5. Shorn of unnecessary detail, it would suffice to say that a conflicting claim to title and possession was raised before the Consolidation Authorities by the husband of the second opposite party, that is still pending there. The applicant claims to be in cultivatory possession of the property in dispute, whereas that claim is disputed by the second opposite party.
6. It appears that the Station House Officer, P.S. Faridpur, Bareilly sponsored proceedings to be drawn under Section 145 Cr.P.C., recommending attachment pending proceedings, on ground of emergency to the Magistrate vide his report dated 17.08.2016. On the basis of the said report, the Sub-Divisional Magistrate, Faridpur, Bareilly, proceeded to issue a preliminary order dated 01.12.2016 in Case no. T-2016 121311033335/2016, addressed to the first party on one hand, and, to the second party comprising five men, all sons of late Sewa Ram. By the preliminary order aforesaid, both parties were required to appear and put in their written statements on 14.12.2016. By a separate order also dated 01.12.2016, saying that it was a case of an emergency, ordered attachment of the property in dispute and directed the S.H.O., P.S. Faridpur, to proceed to the spot, attach the property in dispute, and, give the same into the custody of a non-partisan Supurdgar, who would maintain accounts relating to income and expenditure relating to it. In compliance with the order of attachment dated 01.12.2016 passed by the Sub-Divisional Magistrate, the property in dispute was attached by the police and given into the custody of the Village Pradhan vide a memorandum of attachment (and Supurdagi), dated 17.12.2016.
7. Though, the second opposite party was not a party to the proceedings under Section 145 Cr.P.C., her sons being the second party to those proceedings, she preferred Criminal Revision no.2 of 2017 from the order dated 01.12.2016 passed by the Sub-Divisional Magistrate, Faridpur to the Sessions Judge, Bareilly. The revision, on assignment, came up for determination before the learned Additional Sessions Judge, Court no.2, Bareilly, who allowed the same by his order dated 04.02.2017, insofar as it related to the order of attachment dated 01.12.2016 passed under Section 146(1) Cr.P.C., setting aside the said order with a direction to the parties to appear before the Magistrate, and, participate in further proceedings.
8. It appears that the second party to the proceedings under Section 145 Cr.P.C., that is to say, the five sons of the late Sewa Ram, approached this Court by means of Application u/s 428 No.1174 of 2017 against the order of attachment dated 01.12.2016, wherein this Court issued notice to the applicant, and, passed an interim order dated 13.01.2017, directing that till next date of listing, no coercive action shall be taken against the applicant. It further appears that it was not brought to the notice of the learned Additional Sessions Judge when he allowed Criminal Revision no.2 of 2017 vide his order dated 04.02.2017, setting aside the attachment order dated 01.12.2016, under Section 146(1) Cr.P.C., that against the same order, the proper party to those proceedings, that is to say, the second party, had already preferred Application u/s 482 No.1174 of 2017, wherein this Court had issued notice, and, passed an interim order as above detailed. Thus, when the learned Additional Sessions Judge, at the instance of opposite party no.2, allowed Criminal Revision no.2 of 2017 by his order dated 04.02.2017, the said order was put to challenge by the applicant before this Court by means of Criminal Revision no.693 of 2017, amongst others, on ground that the second opposite party being not a party to the proceedings under Section 145 Cr.P.C., did not have locus standi to maintain the revision. This Court, at the stage of motion hearing, vide order dated 09.03.2017 disposed of Criminal Revision no.693 of 2017, setting aside the order dated 04.02.2017 passed by the learned Additional Sessions Judge, Court no.2, Bareilly in Criminal Revision no.2 of 2017 with a remit of the matter to the Additional Sessions Judge, directing him to decide the revision afresh, after hearing the concerned parties, within time specified.
9. Post remand by this Court vide order dated 09.03.2017 passed in Criminal Revision no.693 of 2017, preferred by the applicant, the learned Additional Sessions Judge, Court no.2, Bareilly, decided the said revision afresh vide order dated 03.08.2017, filed by opposite party no.2, on occasion, partly allowing the same, in the terms that the Magistrate shall not give effect to the orders dated 01.12.2016 passed under Sections 145(1) and 146(1) Cr.P.C. The revisionist before the Additional Sessions Judge, who is the second opposite party here (but not party to the proceedings under Section 145 Cr.P.C.), was required to file an appropriate application in the pending proceedings before the Magistrate, supported by affidavit, and, a copy of the extract of Khatauni, seeking to be made a party to those proceedings. The Magistrate was ordered to hear the parties, including opposite party no.2, on the aforesaid application to be preferred by the second opposite party, under orders of the learned Additional Sessions Judge, with a direction to pass appropriate orders on the said application. It was ordered that thereafter, appropriate orders would be passed by the Magistrate, in relation to the possession of land in dispute, where opposite party no.2 is a co-sharer. It was further ordered that till the Magistrate took proceedings as above directed and passed appropriate orders, the order dated 01.12.2016 passed by the Sub-Divisional Magistrate shall remain inoperative, and, no further effect would be given to it. Parties were directed to appear before the Magistrate on 17.08.2017.
10. Aggrieved by the order dated 03.08.2017, the applicant approached this Court again through Criminal Revision no.2793 of 2017, where this Court by an order dated 29.08.2017 issued notice to opposite parties nos. 2 to 7, as also the State, requiring them to file a return, and, by an interim order directed that until further orders, the parties to the proceedings shall maintain status quo over the property in dispute. It has been brought to the notice of this Court that the order dated 29.08.2017 above referred, passed in Criminal Revision no.2793 of 2017 is still in force, and, those proceedings pending before this Court.
11. At this juncture, it is submission of the learned counsel for the applicant, that the learned Additional Sessions Judge, ought not to have proceeded with and decided Criminal Revision no.2 of 2017 vide order dated 03.08.2017, inasmuch as, the order under challenge in the said revision is subject matter of challenge before this Court in Application u/s 482 no.1174 of 2017, wherein an interim order directing that no coercive action be taken against the applicant, has been passed. It is also submitted that notwithstanding the orders subsequently passed by this Court in Criminal Revision no.693 of 2017 dated 09.03.2017, requiring the Additional Sessions Judge to decide Criminal Revision no.2 of 2017 afresh, after setting aside his order dated 04.02.2017, earlier made in the said revision, the learned Additional Sessions Judge ought not to have decided afresh as it was against propriety, if not illegal, once the order under challenge in Criminal Revision no.2 of 2017 before him and that under challenge before this Court in Application u/s 482 no.1174 of 2017, was the same order, passed by the Sub-Divisional Magistrate, that is to say, the order dated 01.12.2016 ordering attachment under Section 146(1) Cr.P.C. The learned counsel appearing for the second opposite party, has strictly contested this proposition of law on foot of the order dated 09.03.2017, passed in Criminal Revision no.693 of 2017 by this Court, requiring the learned Additional Sessions Judge to decide Criminal Revision no.2 of 2017 afresh, after hearing the parties concerned. He submits that faced with a positive direction to decide Criminal Revision no.2 of 2017 afresh, passed by this Court in Criminal Revision no.693 of 2017 vide order dated 09.03.2017, the mere pendency of the Application u/s 482 under reference, from the same order of the Sub-Divisional Magistrate, before this Court as the one under challenge before the learned Additional Session Judge, would not relieve the learned Additional Sessions Judge of his obligation to abide by the final orders dated 09.03.2017, made by this Court in the Criminal Revision under reference, that are a command to him, whereas the mere pendency of the 482 Application, last mentioned from the same order impugned, at best, gives rise to an issue of propriety in the exercise of jurisdiction.
12. This Court is not concerned about the jurisdiction, validity or propriety of the learned Additional Sessions Judge, in passing the order dated 03.08.2017, or the order of the Sub-Divisional Magistrate dated 01.12.2016, that are sub-judice in Criminal Revision no.2793 of 2017 and Application u/s 482 no.1174 of 2017, respectively. Here, this Court is confronted with orders passed by the learned Additional Sessions Judge, apparently in exercise of powers to punish for contempt, on an application made by opposite party no.2, complaining willful disobedience of the order dated 03.08.2017 passed by the learned Additional Sessions Judge in Criminal Revision no.2 of 2017 by Kunwar Pankaj, the Sub-Divisional Magistrate, Faridpur, Bareilly, by his act in refusing to release from attachment, the property in dispute, in terms of the order dated 03.08.2017 aforesaid, passed by the learned Additional Sessions Judge.
13. These proceedings, post decision, by the learned Additional Sessions Judge in Criminal Revision no.2 of 2017 vide order dated 03.08.2017, had a prelude to them in an application dated 08.08.2017, that was filed by opposite party no.2 before the Sub-Divisional Magistrate, Faridpur, Bareilly in Case no. T-2016 121311033335/2016, under Section 145(1)/146(1) Cr.P.C., where the prayer is that in compliance with the order dated 03.08.2017 passed by the learned Additional Sessions Judge, Court no.2, Bareilly, the S.H.O., Faridpur be directed to withdraw attachment and the appointed Supurdgar in possession of the property in dispute, and, to hand over the same to the second opposite party. A perusal of the record shows that on the said application, the Sub-Divisional Magistrate made an endorsement, 'KOF sd/ illegible 10.8.17'. Finding, the Sub-Divisional Magistrate disinclined to withdraw attachment, which opposite party no.2 thought was the lawful course to be adopted in compliance with the order of the learned Additional Sessions Judge dated 03.08.2017, she filed an application for contempt before the Additional Sessions Judge, Court no.2, Bareilly dated 22.08.2017, amongst others, stating that the SDM told her that the order passed by the Additional Sessions Judge was bad and contrary to law, and, that, therefore, after seeking necessary legal advice, the SDM would think about complying with the order passed by the learned Additional Sessions Judge.
14. The learned Additional Sessions Judge, registered the said application dated 22.08.2017, labeled as it is as a contempt application, as Criminal Misc. Case no.5/2017, titled 'Smt. Katori Devi vs. Kunwar Pankaj', Sub-Divisional Magistrate, Faridpur. He ordered issue of notice to the opposite party fixing 11.09.2017 for objections and disposal. It appears that on 30.08.2017, the Sub-Divisional Magistrate passed an order addressed to the S.H.O., P.S. Kotwali Faridpur, to the effect that the S.H.O. had been directed to ensure compliance and submit a report in the matter, that he had not done. It is indeed striking that the S.D.M. has not mentioned the date of his order, by which he had directed the S.H.O. to comply with the order of the learned Additional Sessions Judge. But, that is not much the issue. It is further said in the order passed by the S.D.M. last mentioned, that the learned counsel for the applicant had brought to his notice through an application dated 30.08.2017, that against the order of the learned Additional Sessions Judge dated 03.08.2017, the applicant had filed Criminal Revision no.2793 of 2017, wherein this Court had issued notice and stayed proceedings. The S.D.M. further said in his order that awaiting availability of a certified copy of this Court's order, of which even a internet downloaded copy was not available by then, the S.D.M.'s earlier direction dated 23.08.2017, would remain in abeyance with a further direction that the S.H.O. should ensure maintenance of status quo and peace on the spot. An objection dated 08.03.2018 was filed by the Sub-Divisional Magistrate, Faridpur in Criminal Misc. Application no.5/2017, or the proceedings for contempt, initiated by the Additional Sessions Judge, saying amongst other things in paragraph 10 thereof, that in Criminal Revision no.2793 of 2017, this Court on 29.08.2017 had passed an interim order directing status quo to be maintained, enclosing a copy of the said order.
15. The learned Additional Sessions Judge, Court no.2, Bareilly by his order dated 18.04.2018, took due cognizance of the order passed by this Court, dated 29.08.2017, in Criminal Revision no.2793 of 2017 against his order dated 03.08.2017. He, however, did not lay his hands off the matter. He ordered that since this Court had directed maintenance of status quo, the S.H.O., P.S. Faridpur and the S.D.M., Faridpur, shall disclose in writing by 08.05.2018, as to what was then the prevailing status (of possession) about the property in dispute.
16. It appears that the learned Additional Sessions Judge passed orders on 31.05.2018 and 13.06.2018 seeking to enforce his order dated 03.08.2017, that to his knowledge was obliterated by an order of this Court dated 29.08.2017 directing parties to maintain status quo. To the above end, he had required personal presence of SI Rajiv Kumar Singh of P.S. Faridpur, who did not appear on 20.06.2018. Finding him absent, he issued a non-bailable warrant for his arrest returnable on 26.06.2018, but again the Sub-Inspector did not appear. Here, this Court is constrained to remark that whatever be the legality or otherwise of the orders passed by the learned Additional Sessions Judge, the Sub-Inspector or whoever else was summoned to appear, should have appeared before the Court or else challenged the order requiring him to appear invoking revisional/ appellate procedures. He could not have ignored summons much less non-bailable warrants, unless he approached a court of superior jurisdiction and secured relief. A process of court, lawful or unlawful, cannot be chosen to be ignored by anyone by judging it to be illegal in his assessment and enforcing that opinion of his, by dint of the public office held by him, and, choosing to ignore or evade a coercive process of the court. That, however, does not mean that proceedings taken by the leaned Additional Sessions Judge, meet with any kind of approval of this Court, as would be presently indicated.
17. In the background of these orders passed by the Additional Sessions Judge, in the assumed jurisdiction to proceed for contempt, or for the enforcement of his orders, the learned Judge passed an order dated 26.06.2018, one of the orders impugned in the present application, whereby he ordered issue of letters regarding the conduct of S.I. Rajiv Kumar Singh to the I.G. Bareilly Zone, S.S.P., Bareilly and S.H.O., P.S. Faridpur, Bareilly by registered post and ordered withholding of the Sub-Inspector's salary with a copy of the order forwarded to the Chief Treasury Officer, Bareilly. It was further ordered that since possession of the property in dispute was not delivered to opposite party no.2, as per her assertion, the I.G. Bareilly, Zone, Bareilly, the S.S.P., Bareilly and the S.H.O., P.S. Faridpur, Bareilly, were directed that by the next date fixed, the police officials aforesaid, shall cause possession of the property in dispute to be delivered to opposite party no.2, and, submit a report in this regard in Court, posting the case to 29.06.2018.
18. It appears from a perusal of a certified copy of a police report dated 29.06.2018, that in compliance with the impugned order dated 26.06.2018, the S.H.O., P.S. Faridpur, District Bareilly, delivered possession of the property in dispute to opposite party no.2 on 28.06.2018, regarding which there is a memo of possession dated 28.06.2018, signed by both sides to the proceedings under Section 145 Cr.P.C., including opposite party no.2. There is also an entry to that effect in the G.D. of Police Station Faridpur, bearing no.043 dated 28.06.2018 made at 19:01 hours, indicating transfer of possession of the property in dispute to opposite party no.2. On 29.06.2018, the learned Second Additional Sessions Judge, Bareilly passed a further order in Criminal Misc. Case no.5 of 2017 to the effect that parties were present and the applicant's counsel, that is to say, the counsel representing opposite party no.2 here, stated before the court that she had been given possession of the property in dispute on 28.06.2018. The learned Judge ordered, that in the circumstances, the S.D.M. shall pay a sum of Rs.3000/- as cost of the case and damages, and, file the receipt in court, ordering the case to be, thus, disposed of.
19. When this matter came up for admission on 31.07.2018, this Court required the learned Additional Sessions Judge concerned to explain his position as to how he assumed jurisdiction to proceed in contempt, and, passed the orders impugned dated 26.06.2018 and 29.06.2018, besides the earlier order dated 18.04.2018, through which he had assumed jurisdiction over the matter, that was a decided criminal case, so far as he was concerned. He was asked to explain his authority under the law to proceed in contempt, when under the law subordinate courts cannot take such proceedings themselves, or pass orders in exercise of that jurisdiction. All that a subordinate court can do, finding its order willfully disobeyed, apart from specific statutory provisions authorizing enforcement, to refer the act of willful disobedience found to be contumacious, to this Court under Section 10 of the Contempt of Courts Act, 1971, to be dealt with in accordance with law.
20. In compliance with the order dated 31.07.2018, the learned Additional Sessions Judge concerned, Sri Ravi Nath, has submitted his explanation/ response dated 07.08.2018 through the Registrar General. A perusal of the response from the Additional Sessions Judge shows, that on facts, there is not much quarrel. He has, however, submitted that he has not proceeded in exercise of jurisdiction to punish for contempt and, in fact, has not awarded, as he submits, any punishment. He has sought to enforce his order dated 03.08.2017, and, no more. Sri Sudhir Mehrotra, who has appeared on behalf of the Additional Sessions Judge concerned, does not much defend the validity of the orders impugned, but submits that the same were not passed in the exercise of jurisdiction to punish for contempt. Learned counsel appearing for opposite party no.2, however, defends the orders passed and submits that possession was rightly ordered to be delivered to the said opposite party, by the learned Additional Sessions Judge.
21. Relying on the explanation submitted by the learned Additional Sessions Judge dated 07.08.2018, Sri Sudhir Mehrotra, learned Special Standing Counsel for the High Court, appearing on behalf of the learned Judge, submits that the application filed by the second opposite party, is no doubt labeled as a contempt application, but the same has not been dealt with as one. He submits that the learned Judge has registered the case, so far as his court is concerned, as a Criminal Misc. Application and not as a Contempt Application. He has further urged that the misnomer about the application being a contempt application, is attributable to the authorship of the learned counsel appearing for opposite party no.2 in the court below, who appears to be scantily acquainted with the law relating to contempt of court. Sri Mehrotra, however, submits that the office of the learned Judge, or the Judge, by a judicial order ought to have directed the second opposite party to appropriately amend the description of proceedings, by omitting the word 'contempt' from the cause title, which was not done due to oversight, or some slackness. The learned counsel for the applicant on the other hand disputes the said position and submits that a perusal of the application giving rise to Criminal Misc. Case no.5/2017, clearly shows it to be an application invoking jurisdiction of the court to punish for contempt. He has invited the attention of the Court to the order dated 18.04.2018, where the learned Judge has used the words 'Uprokt vaad prarthini ke dwara avmaannana prarthana patra prastut karne par yojit kiya gaya, jisme kaha gaya hai ki vipakshi ko talab kar samuchit aadesh paarit kiya jaaye'. According to the learned counsel for the applicant, these words are decisive of the nature of the jurisdiction exercised by the learned Additional Sessions Judge, while passing the orders impugned.
22. No doubt the opening words of the order dated 18.04.2018, hint at the jurisdiction exercised being one of contempt, the contents of the said order shows that after elaborately noticing the contentions on both sides, including the order of this Court dated 29.08.2017, the learned Additional Sessions Judge has required the S.H.O., P.S. Faridpur and the Chowki Incharge, Devarania to state in writing by 08.05.2018 as to which of the party was in possession. This expression of judicial opinion shows that, in fact, the learned Additional Sessions Judge wanted to know, for the purpose of enforcing his order, as to which party was in possession. Also, the explanation of the learned Additional Sessions Judge, where he has said that in none of his orders passed, has he issued a show cause notice as regards a proposed imposition of punishment, reinforce the stand that proceedings initiated by the Additional Sessions Judge were not taken in the exercise of jurisdiction to punish for contempt. It is true, that the impugned orders passed for different reasons, as would be shortly seen, howsoever bad they might be, do not indicate steps such as issue of a show cause notice as to why contempt proceedings be not drawn, a notice to show cause why the opposite party be not punished for contempt, the framing of a charge, that is generally characteristic of all contempt proceedings, those being quasi-criminal in nature, and, the typical terminus of all contempt proceedings, resulting in either discharge of notice or conviction, followed by punishment by way of imprisonment or fine, with or without opportunity to purge the contempt. The orders passed including the orders impugned do not carry any of these characteristic trappings of an order passed in the exercise of jurisdiction to punish for contempt. As such, the explanation dated 07.08.2018 tendered by Sri Ravi Nath, Additional Sessions Judge, Bareilly, so far as the orders impugned and the other orders being not passed in assumption of jurisdiction to punish for contempt, is accepted.
23. Now, assuming that the orders impugned, and, other orders passed in proceedings that have commenced on the application of opposite party no.2 dated 08.08.2017, have been passed in exercise of jurisdiction to enforce the order dated 03.08.2017, in the considered opinion of this Court, are absolutely without jurisdiction, manifestly illegal, a nullity, besides being an abuse of process of court. This view of the Court, is founded on two premises, viz:
(1) A criminal court after delivering a judgment or final order becomes functus officio and cannot pass any further order in the decided proceedings;
(2) The impugned orders dated 26.06.2018 and 29.06.2018, passed to enforce or give effect to the order of the Revisional Court dated 03.08.2018 are a nullity, as the same are in violation of this Court's interim order dated 29.08.2017, passed in Criminal Revision no.2793 of 2017.
24. Dealing with the first of the two premises above delineated, it is a firmly established principle that a criminal court ceases to have jurisdiction over a particular proceeding after it pronounces judgment. It becomes functus officio. This principle has been laid down in the context of exercise of the power of review by consistent judicial authority that forbids a criminal court from altering, changing, modifying or reviewing its judgment or final order except to the extent of correction of clerical or arithmetical errors, that are specifically authorized by the terms of Section 362 Cr.P.C. In this context, the decision of the Hon'ble Supreme Court in Sunita Jain vs. Pawan Kumar Jain, (2008) 2 SCC 705, may be quoted with profit:
"30. To us, the learned counsel for the appellant is right that in substance and in reality, the High Court has exercised power of review not conferred by the Code on a criminal court. Section 362 of the Code does not empower a criminal court to alter its judgment. It reads thus:
"362. Court not to alter judgment.--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 of a case, shall alter or review the same except to correct a clerical or arithmetical error."
(emphasis supplied)
31. The section makes it clear that a court cannot 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.
32. No doubt, the section starts with the words "save as otherwise provided by this Code". Thus, if the Code provides for alteration, such power can be exercised. For instance, sub-section (2) of Section 127. But in absence of express power, alteration or modification of judgment or order is not permissible.
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 Arjunsinghji [(1971) 3 SCC 844] .) No power of review has been conferred by the Code on a criminal court and it cannot review an order passed or judgment pronounced.
34. In Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169 : 2001 SCC (Cri) 113] this Court held that a High Court has no jurisdiction to alter or review its own judgment or order except to the extent of correcting any clerical or arithmetical error. It deprecated the practice of filing criminal miscellaneous petitions after disposal of main matters and issuance of fresh directions in such petitions. The Court said: (SCC p. 175, para 10) "10. Section 362 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 an 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 relief 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 an arithmetical error."
25. The aforesaid proposition is echoed again in State of Punjab vs. Davinder Pal Singh Bhullar and others, (2011)14 SCC 770, where it is held:
"44. There is no power of review with the criminal court after the judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 CrPC 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 is disentitled to entertain a fresh prayer for any relief 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 order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (See Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169 : 2001 SCC (Cri) 113] and Chhanni v. State of U.P. [(2006) 5 SCC 396 : (2006) 2 SCC (Cri) 466])
45. Moreover, the prohibition contained in Section 362 CrPC is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 CrPC has no authority or jurisdiction to alter/review the same. (See Moti Lal v. State of M.P. [(2012) 11 SCC 427 : AIR 1994 SC 1544], Hari Singh Mann[(2001) 1 SCC 169 : 2001 SCC (Cri) 113] and State of Kerala v. M.M. Manikantan Nair [(2001) 4 SCC 752 : 2001 SCC (Cri) 808] .)"
26. In a very recent decision, in the context of the exercise of the power of review under Section 362 Cr.P.C., their Lordships of the Supreme Court have firmly restated the above position of law in Mohammed Zakir vs. Shabana and others, 2018 SCC OnLine 819.
27. The question is that regarding the criminal court as functus officio after it has passed a judgment or final order, that has no further authority or jurisdiction in the proceedings, being a principle enunciated in the context of Section 362 Cr.P.C., where the Court is asked to alter, review, or modify a judgment or final order already made, does it extend to prohibit a criminal court from giving effect to or implementing a final judgment passed by it, where non-compliance is complained?
28. The basic principle that is enshrined in Section 362 Cr.P.C. is that a criminal court after delivering judgment, is functus officio, properly so called, and, except for the statutorily permitted jurisdiction to correct clerical or arithmetical error, looses seisen of the case. There are some exceptions like that of an order passed without hearing a party, where the power to recall, has been judicially recognized, but that all in no manner clothe a criminal court with authority to issue further directions in a decided cause. In case, some orders are required to implement a violated direction in a judgment passed by a criminal court, or some orders are required to give effect to it, the person aggrieved, may invoke the jurisdiction of this Court under Section 482 Cr.P.C., that amongst others, invests this Courts with jurisdiction "to make such orders as may be necessary to give effect to any order under this Code". In the aforesaid premise, it would be an option, and, lawfully so, for the party claiming violation of the directions of the Additional Sessions Judge made in his order dated 03.08.2017 passed in Criminal Revision no.2 of 2017 by the Sub-Divisional Magistrate, to have approached this Court under Section 482 Cr.P.C., seeking appropriate directions to give effect to the said order; the order dated 03.08.2017 being after all an order passed under the Code. The enforceability on merits, of course, would have to be established. But, the learned Additional Sessions Judge, who was approached by the second opposite party, was certainly not the forum to apply for enforcement, or to give effect to his order dated 03.08.2017, once he had decided the Criminal Revision and parted with matter. If at all, the learned Additional Sessions Judge felt on a perusal of the application filed before him, labeled as a contempt application, that indeed contempt was committed by the Sub-Divisional Magistrate by an act of willful disobedience to his order, he could refer the matter to this Court, under Section 10 of the Contempt of Courts Act, 1971, or other appropriate provisions of the said Act. Thus, in no jurisdiction of his, the learned Additional Sessions Judge could proceed to pass the orders impugned for enforcement of his order dated 03.08.2017.
29. Now, turning to the second premise on which the impugned orders are flawed. A look at the sequence of events and the orders passed would show, that after the learned Additional Sessions Judge passed the order dated 03.08.2017, it was challenged by the applicant in Criminal Revision no.2793 of 2017, wherein by a detailed interim order dated 29.08.2017, this Court issued notice to the second opposite party here, besides the other opposite party to that revision, and, directed that until further orders, the parties would maintain status quo over the property in dispute. This order being one passed by this Court on 29.08.2017, the order dated 03.08.2017 passed by the learned Additional Sessions Judge, where against Criminal Revision no.2793 of 2017 was preferred by the applicant, lost its efficacy and could never be enforced during the subsistence of this Court's interim order last mentioned. The impugned orders, therefore, and, all proceedings leading to the said orders passed by the Additional Sessions Judge would be a nullity, being in the teeth of this Court's order dated 29.08.2017. That the impugned orders are in violation of this Court's order dated 29.08.2017, is not in the least doubt, inasmuch as, the impugned orders dated 26.06.2018 and 29.06.2018 have caused delivery of possession of the property in dispute to the second opposite party, after taking it out of the hands of the Supurdgar on 28.06.2018, as the record reveals. Once, this Court had ordered status quo to be maintained over the property in dispute on 29.08.2017, it was not at all lawful for the learned Additional Sessions Judge to enforce delivery of possession of the property in dispute to the second opposite party by means of the orders impugned on 28.06.2018. The impugned orders, and, the resultant delivery of possession of the property in dispute, in violation of this Court's order dated 29.08.2017, are a nullity.
30. The declaration that it a nullity would remain no more than a hollow expression of words, unless status quo ante as prevailing immediately before the impugned orders were enforced on 28.06.2018, is restored. It would, of course, be open to the parties to establish their right to possession, in pending Criminal Revision no.2793 of 2017 and Application u/s 482 no.1174 of 2017, or in any other competent proceedings. But, subject to further orders being passed in those proceedings regarding possession of the property in dispute, the impugned orders cannot be permitted to survive, or possession of the property in dispute, under the orders impugned, permitted to remain with the second opposite party, as that is necessary to give effect to the order dated 29.08.2017 passed by this Court in Criminal Revision 2793 of 2017.
31. Accordingly, this Application succeeds and is allowed. The impugned orders dated 26.06.2018 and 29.06.2018 passed by the Additional Sessions Judge, Court No.2, Bareilly in Criminal Misc. Case no.5 of 2017, Smt. Katori Devi vs. Kunwar Pankaj, Sub-Divisional Magistrate, Faridpur, District Bareilly, and, all proceedings of the said miscellaneous case are hereby quashed. The Sub-Divisional Magistrate, Faridpur, District Bareilly is ordered to place the property back in possession of the Supurdgar, as it was immediately prior to 28.06.2018. However, possession of the property in dispute shall be subject to further orders, that may be passed in Criminal Revision no.2793 of 2017 and Application u/s 482 no.1174 of 2017, or in any other competent proceedings, to which the parties may take recourse, in accordance with law.
Order Date :- 16.11.2018 Anoop