Karnataka High Court
Anjanamma vs State Of Karnataka on 11 August, 1988
Equivalent citations: ILR1988KAR3340
ORDER Patil, J.
1. By this interlocutory application made under Section 482 of the Code of Criminal Procedure, the applicant respondent-2 in Cr.R.P.No. 690/87, finally disposed of by the order dated 8-1-1988, has sought to recall the said order, to restore the revision & to rehear on merits.
2. The application is pressed on the ground that although the applicant had engaged a Counsel, but by mistake of the office the power was mislaid in the office and he was shown as unrepresented and had no opportunity of being heard in the matter. The application is stoutly opposed by the otherside, who had filed the revision and has succeeded in getting reversed the order made in favour of the applicant.
3. The order under challenge in the revision was regarding disposal of property (gold ingot said to be now worth Rs.24,000/-) in a criminal case which had ended in acquittal. The Magistrate had directed to return the same to the applicant and the Sessions Judge had confirmed that order and by the order dated 8th January, 1988, in reversal of the orders of the Courts below, it has been permitted to be returned to the complainant-petitioner in Cr.R.P. No. 690/87.
4. While Mr. Nagesh, learned Counsel for the applicant-respondent No. 2, submitted that in the given facts and circumstances of the case, for no fault on the part of the applicant he having been denied of the opportunity of being heard, to meet the ends of justice, under inherent powers of the High Court under Section 482 Cr.P.C. it is permissible and proper to recall the order and give an opportunity of being heard the applicant, Mr. Ponnappa, learned Counsel appearing on the other side, as also Mr. Jadhav, learned High Court Government Pleader appearing for the State, submitted that in view of the provisions contained in Section 362 Cr.P.C., there being bar against review of such final order disposing of a case, the remedy of the applicant was elsewhere and not in this Court. Number of authorities have been cited on both sides. There is a conflict of opinions on the point in different High Courts. In the earlier decision brought to my notice in the case of SANKATHA SINGH v. STATE OF U.P., rendered by a Bench of. three Judges, their Lordships of the Supreme Court considering analogous provisions of Section 369 and Section 560(1)(a) of old Cr.P.C., held that such inherent powers cannot be exercised in view of the specific prohibition against altering and reviewing of the order of the Court and inherent powers cannot be exercised to do what the Code specifically prohibits the Courts from doing. In case of SWARTH MAHT v. DHERMADEO, AIR 1972 SC 879 in somewhat similar situation, where appeal against acquittal was admitted in the Patna High Court and the notice was issued to the accused, although the accused appeared, but by mistake the names of the accused or their advocate was not shown in the cause list and the case was heard in their absence; the accused were convicted and the application made for rehearing of the appeal was dismissed holding no opportunity was denied to them of being heard. When the matter was taken to the Supreme Court their Lordships of the Supreme Court held that if the name of the Advocate who appeared in the case was not shown, that would be a good reason to them that they had no notice of the case being posted for hearing and therefore when application is made by the party who were not heard, it would be an exercise of sound discretion if an opportunity is given to the party who is not heard and since no such opportunity was given, the conviction was set aside and the matter was remitted to the High Court to hear the appeal afresh. No such contention as now raised were either raised or considered in the said case. The question as now posed arose for decision in the case of STATE OF ORISSA v. RAM CHANDER AGARWAL, . After considering analogous and equivalent provisions of Sections 369 & 561-A of the Old Cr.P.C. their Lordships of the Supreme Court have ruled that once a Judgment has been pronounced by an High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that Judgment as there is no provision in the Code which would enable the High Court to review the same or to exercise revisional jurisdiction. Proceeding further, their Lordships observed that the provisions of Section 369 (now Section 362) do not restrict the prohibition to the trial Court alone and the provisions in Section 369 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 361-A (now Section 482) cannot be invoked for exercise of a power which is specifically prohibited by the Code. This view of law has been reiterated by their Lordships of the Supreme Court in the case of SMT. SOORAJ DEVI v. PYARE LAL, wherein while convicting the accused, the High Court had directed to restore the possession of the house to the complainant; a criminal miscellaneous application was then filed before the High Court under Section 482 Cr.P.C. for clarifying, by making a declaration that it was not binding on the applicant and it did not affect her possession, and the application was opposed and an attempt was made, to bring controversy in the description "clerical or arithmatical error." Considering the provisions of Section 482 Cr.P.C. and after referring to the earlier decision in the case of Sankatha Singh1 their Lordships observed - what was sought is not correction of clerical or arithmetical error, but a declaration that the High Court order did not affect her rights in the property and that direction to restore possession to Pyarelal is confined to that portion only of the house property respecting which the offence of trespass was committed so that she is not evicted from the portion in her possession, and thus in fact asked for adjudication of the right to possession alleged by her remains unaffected by the order of the High Court. Having considered the matter, their Lordships observed -
"We are not satisfied that the controversy can be brought within the description "clerical or arithematical error." A clerical or arithmetical error is an error occasioned by an accidental slip or omission of the Court. It represents that which the Court never intended to say. It is an error apparent on the face of the record and does not depend for its discovery on argument or disputation. An arithmetical error is a mistake of calculation, and a clerical. error is a mistake in writing or typing."
Further, repelling the contention that inherent powers of the High Court could be invoked under Section 482 Cr.P.C. not with standing the prohibition imposed by Section 362 to grant relief, their Lordships emphatically rejected the contention and observed -
"Now it is well settled that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code."
And the decision in the case of Sankatha Singh, was relied. The inherent powers of the Court are not even contemplated by the saving provisions contained in Section 362 and therefore the attempt to invoke that power cannot be availed. Such being the position of law as declared by their Lordships of the Supreme Court and also similar being the view taken by this Court in the case of KENCHA v. STATE OF KARNATAKA, , I do not think that the applicant can avail of the benefit of the provisions of Section 482 Cr.P.C.
5. Mr. Nagesh, learned Counsel for the applicant, submitted the principles of natural justice do call for giving an opportunity of being heard in as much as the applicant was not given an opportunity of being heard. I do not think, in view of specific prohibition contained in Section 362 Cr.P.C., on the principles of natural justice also it is possible for the Court either to recall the order or give re-hearing to the parties. However, there is no doubt as noticed from the records, the applicant was represented by a Counsel, but the power filed by the Counsel was mislaid and the applicant had been denied of that opportunity of being heard. But, having regard to the provisions of Section 403 Cr.P.C., a party having no such right of being heard either personally or by 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. However, the applicant has every right to agitate his right in respect of the property so disposed of irrespective of the order made by this Court before the competent Civil Court.
Therefore, the application I.A.III fails and it is accordingly rejected.