Orissa High Court
Smt. Nisharani vs Rajeev Lochan Das .... Opposite Party on 10 April, 2026
Author: Mruganka Sekhar Sahoo
Bench: Mruganka Sekhar Sahoo
IN THE HIGH COURT OF ORISSA AT CUTTACK
I.A. No. 1099 of 2025
(Arising out of BLAPL No. 6107 of 2023 disposed of on 5.10.2023)
Smt. Nisharani .... Petitioner
Mahapatra
Mr. J. Katikia, Advocate
-versus-
Rajeev Lochan Das .... Opposite Party
Mr. S.K.Dwivedy on behalf of
Mr. A.K.Acharya, Advocate
ASC for State
CORAM:
JUSTICE MRUGANKA SEKHAR SAHOO
ORDER
10.04.2026 Order No. (Hybrid Mode)
8.
1. The present I.A. is considered along with I.A. No. 19 of 2025(Prajana Prakash Nayak v. Sonia Tripathy) (Arising out of BLAPL No. 7177 of 2024 disposed of on 22.11.2024).
The present I.A. has been filed on 17.11.2025 purportedly under the provision of Section 340 of the Code of Criminal Procedure 1973, corresponding to section 379 of BNSS,2023 read with Chapter-VI, Rule- 27(A) of the Orissa High Court Rules, 1948 by the 'informant' in the case out of which the BLAPL No. 6107 of 2023 arose.
Page 1 of 18The BLAPL No. 6107 of 2023 and I.A. No.1045 of 2023 assigning therefrom were disposed of by this bench by separate orders dated 05.10.2023.
2. Mr. S.K.Dwivedy, on behalf of Mr. A.K.Acharya, learned counsel submitted that he is appearing for the petitioner in the disposed of bail application.
3. Though the subject matter is not in the determination of this Bench, the I.A. has been listed for consideration purportedly for the reason that the earlier BLAPL No. 6107 of 2023 and I.A. No. 1045 of 2023 arising therefrom were disposed of by this Bench.
4. The BLAPL No. 6107 of 2023 and I.A. No.1045 of 2023 arising out of the said BLAPL disposed of by orders dated 05.10.2023 which are reproduced herein :
"BLAPL No.6107 of 20231. It is submitted by the learned counsel for the petitioner that charge-sheet has been submitted on 26.08.2023.
2. In view of changed circumstances of filing of the Final Police Report, this Court is not inclined to pass any order in the present petition.
3. Learned counsel for the petitioner seeks to withdraw the petition to move the learned court in seisin of the matter.
4. The BLAPL is disposed of accordingly."
5. The I.A. No. 1045 of 2023 was filed with the following prayer:
"It is therefore prayed that in view of the fact and circumstance as mentioned above the petitioner may be allowed to be released on interim bail for the surgery of her wife as advised by the Asst.Professor, SCB,Medical Page 2 of 18 College, Cuttack for the greater interest of justice."
The I.A. No. 1045 of 2023 was disposed of by the following order dated 05.10.2023 by this Bench :
I.A. No.1045 of 20231. I.A. No.1045 of 2023 came to be filed on 02.08.2023 by one Smt. Sonia Tripathy stating her medical condition that requires medical treatment and intervention. The filing of the said I.A. was with a prayer to release the accused who is the husband of Smt. Tripathy on interim bail for surgery wherein she is advised by Assistant Professor, Department of Gynaecology, SCB Medical College and Hospital, Cuttack.
2. On 04.08.2023, a coordinate Bench of this Court passed the following order:
"1. Appearance memo filed by the learned counsel, Mr. D. Panda for the petitioner is taken on record. 2 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the informant.
3. It is submitted by the learned counsel for the informant that the petitioner has criminal antecedent of similar nature.
4. Learned counsel for the State is called upon to verify the same and file an affidavit regarding the criminal antecedent of the petitioner.
5. List this matter on 25.08.2023."
Thereafter, the matter was adjourned for obtaining the case diary on 25.08.2023, 26.09.2023 and again on 3.10.2023 at the instances of the learned counsel for the petitioner.
3. Thereafter, learned counsel for the State was directed to obtain instruction in response to the I.A. In obedience to the order of this Court, learned Standing Counsel produces a letter issued by the Deputy Superintendent of Police, EOW, Bhubaneswar by D.R. No.3917/EOW dated 25.09.2023. The verification of the medical reports Page 3 of 18 produced by the applicant annexed to the I.A. leads to a matter of concern as it is stated in the said report. Relevant portion of the report is quoted herein for reference:
"The Registrar (Administration), S.C.B.M.C.H., Cuttack submitted the report vide Memo No.20598 dt.14.09.2023, which revealed that Mrs. Sonia Tripathy, W/o- Rajeev Lochan Das, Bhubaneswar has not attended OG OPD on 25.07.2023 & 29.07.2023. Moreover, signature of the Assistant Professor in the OPD Card does not match with the signature of any of the Assistant Professor of O & G Department. Hence, the petitioner has furnished the forged medical documents in the name of his wife Sonia Tripathy to get relief. Hence, the petitioner has deliberately played fraud before the Hon'ble Court. As the petitioner has not approached the Hon'ble Court with clean hands, the petitioner is not entitled to any relief. Moreover, it appears that Sonia Tripathy, the wife of the petitioner has sworn in the affidavit before the Hon'ble Court. Hence, she has filed false affidavit and the affidavit has described as the brother of the petitioner. Hence, Sonia Tripathy is also squarely liable for forgery and false statements."
4. Learned Standing Counsel referring to the report submits that such practice amounts to interference with the process of the Court and is to be dealt with sternly to send a message to such person.
5. Learned Sr. Counsel for the informant refers to certain other earlier events when allegedly false/forged documents have been filed by the petitioner (accused) for getting bail that has led to some proceeding before the Orissa State Bar Council.
6. Learned counsel for the petitioner in I.A. No.1045/2023 is also the learned counsel in the Page 4 of 18 bail application. He submits that the petitioner therein does not want to pursue the I.A. and the same is to be withdrawn by the petitioner.
7. Having heard learned counsel for the petitioner- applicant, learned Standing Counsel for the State and learned Sr. Advocate for the informant, this Court is of the considered opinion that though it is a matter of concern but considering the age of the applicant, she being the wife of the petitioner (accused) in the BLAPL, who is in custody, a lenient view is to be taken and the matter is to be set at rest as of now.
8. The report of the Dy. Superintendent of Police, EOW, Bhubaneswar dated 25.08.2023 shall be kept in sealed cover by the Registrar (Judicial) for reference.
The Registrar (Judicial) shall do the needful.
9. The I.A. stands dismissed as withdrawn."
6. The prayer made in the I.A. No. 1099 of 2025 is reproduced herein :
"Therefore Opp. Party No:-2/informant prays that Your Lordships may graciously be pleased to consider the facts stated in the petition, allow the same and direct to file a complaint through the office of the Hon'ble Court against the petitioner and the deponent of lA No:-l045/2023 in connection with /arising out of BLAPL No:-6107/2023 in term of Section-340 of the Criminal Procedure Code, 1973 corresponding to 379 BNSS for the offence committed U/S:-193/195/199/200 of the Indian Penal Code for the interest of Justice"
7. Shri Balaram Nayak, learned counsel filed Vakalatnama (executed on 8.6.2023 by the informant) before this Court on 9.6.2023. Shri D. Nayak, learned Sr. Advocate was engaged to argue the matter on behalf of informant. Learned counsel Shri Balaram Nayak Page 5 of 18 thereafter has given consent for engagement of any other counsel on 22.3.2026. Shri J. Katikia, learned counsel has appeared filing Vakalatnama on 26.3.2026.
8. Learned counsel Shri Katikia is heard at length. Shri S.K.Dwivedy, learned counsel being present and submits that he has instruction to appear on behalf of the person who was applicant in the disposed of BLAPL.
9. Now, this Court while considering the present petition is conscious of the judgment rendered by the Hon'ble Apex Court and the principles laid therein i.e. Tamil Nadu Electricity Board and another v. N. Raju Reddair and another1 : (1997) 9 SCC 736; wherein dealing with the question whether review application can be filed after dismissal of the appeal/Special Leave Petition by another counsel who was not on record and who was not heard while dealing with the appeal/Special Leave Petition it was held, "When an appeal/special leave petition is dismissed, except in rare cases where error of law or fact is apparent on the record, no review can be filed, that too by the Advocate on Record who neither appeared nor was party in the main case. It is salutary to note that the court spends valuable time in deciding a case. Review petition is not, and should not be, an attempt for hearing the matter again on merits. Unfortunately, it has become, in recent time, a practice to file such review petitions as a routine, that too, with change of counsel, without obtaining consent of the Advocate on Record at earlier stage."
1(1997) 9 SCC 736 Page 6 of 18
10. Learned counsel Shri Katikia refers to the paragraphs 3 to 7 of the order passed in the I.A. No. 1045 of 2023 disposed of by order dated 5.10.2023. I.A. was filed seeking interference of this Court under section 340 CrPC (since repealed and substituted by pari materia provision contained in BNSS, 2023). In the BLAPL No. 6197 of 2023 order of disposal was passed as it was withdrawn.
To consider the prayer made in the I.A. this Court has to revisit and reconsider its order passed in I.A. No.1045 of 2023 that was disposed of with the following observation at paragraph-7 which is reproduced herein :
"Having heard learned counsel for the petitioner- applicant, learned Standing Counsel for the State and learned Sr. Advocate for the informant, this Court is of the considered opinion that though it is a matter of concern but considering the age of the applicant, she being the wife of the petitioner (accused) in the BLAPL, who is in custody, a lenient view is to be taken and the matter is to be set at rest as of now."
11. Section 362 of Code of Criminal Procedure, 1973 (since repealed and substituted by pari materia provision contained in section 403 of BNSS, 2023) provides 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."Page 7 of 18
The principle of law contained in S.362 CrPC/S.403 of BNSS, 2023 as would be also applicable to High Court has been elaborately dealt with by the Hon'ble Supreme Court in State of Punjab v Davinder Pal Singh Bhullar and others2 "III. Bar to review/alter judgment
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] .) 2 (2011)14 SCC 770 Page 8 of 18 xxx xxx xxx
47. This Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in criminal law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code itself. (Vide State v. K.V. Rajendran [(2008) 8 SCC 673 : (2008) 3 SCC (Cri) 600 : AIR 2009 SC 46] .)
48. In Sooraj Devi v. Pyare Lal [(1981) 1 SCC 500 : 1981 SCC (Cri) 188 : AIR 1981 SC 736] this Court held that the prohibition in Section 362 CrPC against the Court altering or reviewing its judgment, is subject to what is "otherwise provided by this Code or by any other law for the time being in force". Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 CrPC and, therefore, the attempt to invoke that power can be of no avail.
49. Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio.
Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law.
xxx xxx xxx
56. In Popular Muthiah v. State [(2006) 7 SCC 296 : (2006) 3 SCC (Cri) 245] explaining the scope Page 9 of 18 of Section 482 CrPC, this Court held : (SCC p. 316, para 48) "48. ... [The High Court] cannot issue directions to investigate the case from a particular angle or by a particular agency."
(emphasis added) Thus, in case the High Court in exercise of its inherent powers issues directions contravening the statutory provisions laying down the procedure of investigation, it would be unwarranted in law.
xxx xxx xxx
58. This Court has consistently emphasised that Judges must enforce laws whatever they may be and decide the cases strictly in accordance with the law. "The laws are not always just and the lights are not always luminous. Nor, again, are judicial methods always adequate to secure justice". But the courts "are bound by the Penal Code and the Criminal Procedure Code" by the very "oath" of the office.
(See Joseph Peter v. State of Goa, Daman and Diu [(1977) 3 SCC 280 : 1977 SCC (Cri) 486 : AIR 1977 SC 1812] .) xxx xxx xxx
65. The court is "not to yield to spasmodic sentiments, to vague and unregulated benevolence". The court "is to exercise discretion informed by tradition, methodised by analogy, disciplined by system". This Court in State of Rajasthan v. Prakash Chand [(1998) 1 SCC 1 :
AIR 1998 SC 1344] observed as under : (SCC pp. 38-39, para 58) "58. ... Judicial authoritarianism is what the proceedings in the instant case smack of. It Page 10 of 18 cannot be permitted under any guise. Judges must be circumspect and self-disciplined in the discharge of their judicial functions. ... It needs no emphasis to say that all actions of a Judge must be judicious in character. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is the greatest threat to the independence of the judiciary. Eternal vigilance by the Judges to guard against any such latent internal danger is, therefore, necessary, lest we 'suffer from self-inflicted mortal wounds'. We must remember that the Constitution does not give unlimited powers to anyone including the Judge of all levels. The societal perception of Judges as being detached and impartial referees is the greatest strength of the judiciary and every member of the judiciary must ensure that this perception does not receive a setback consciously or unconsciously. Authenticity of the judicial process rests on public confidence and public confidence rests on legitimacy of judicial process.
Sources of legitimacy are in the impersonal application by the Judge of recognised objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices. It is most unfortunate that the order under appeal founders on this touchstone and is wholly unsustainable."
xxx xxx xxx
115. The error in the impugned orders of the High Court transgresses judicious discretion. The process adopted by the High Court led to greater injustice than securing the ends of justice. The path charted by the High Court inevitably reflects a biased approach. It was a misplaced sympathy for a cause that can be termed as being inconsistent to the legal framework. Law is an Page 11 of 18 endless process of testing and re-testing as said by Justice Cardozo in his conclusion of the Judicial Process, ending in a constant rejection of the dross and retention of whatever is pure and sound. The multi-dimensional defective legal process adopted by the court below cannot be justified on any rational legal principle. The High Court was swayed away by the considerations that are legally impermissible and unsustainable."
12. Whether a party can relitigate a question of law or issue which has already been decided though the other party may not satisfy the strict rule of res judicata or the requirement of issue estoppel, was dealt with by the Hon'ble Supreme Court in K.K.Modi v. K.N.Modi3, wherein, the Hon'ble Court quoted with approval the decisions rendered in Greenhalgh v. Mallard4 and Mcllkenny v. Chief Constable of West Midlands Police Force5, at paragraphs 45 & 46(of SCC print). The said paragraphs are reproduced herein :
"45. In the case of Greenhalgh v. Mallard [(1947) 2 All ER 255] the Court had to consider different proceedings on the same cause of action for conspiracy, but supported by different averments. The Court held that if the plaintiff has chosen to put his case in one way, he cannot thereafter bring the same transaction before the Court, put his case in another way and say that he is relying on a new cause of action. In such circumstances he can be met with the plea of res judicata or the statement or plaint may be struck out on the ground that the action is frivolous and vexatious and an abuse of the process of the court.3
(1998) 3 SCC 573 4 [(1947) 2 All ER 255] 5 [(1980) 2 All ER 227] Page 12 of 18
46. In Mcllkenny v. Chief Constable of West Midlands Police Force [(1980) 2 All ER 227] the court of appeal in England struck out the pleading on the ground that the action was an abuse of the process of the court since it raised an issue identical to that which had been finally determined at the plaintiffs' earlier criminal trial. The Court said even when it is not possible to strike out the plaint on the ground of issue estoppel, the action can be struck out as an abuse of the process of the court because it is an abuse for a party to relitigate a question or issue which has already been decided against him even though the other party cannot satisfy the strict rule of res judicata or the requirement of issue estoppel."
13. Learned counsel for the opposite party petitioner in the disposed of bail application submits that similar I.A. Nos. 1588 of 2024 and 80 of 2025 filed by the informant-Prajna Prakash Nayak in Airfield FIR No. 265 of 2021 for initiation of proceeding under section 340 of CrPC against petitioner in BLAPL No. 3078 of 2024 (Rajeev Lochan Das v. State) has been considered by a coordinate Bench of this Court and has been dismissed by an elaborate order.
Learned counsel produces the copy of order dated 07.03.2026 passed the coordinate Bench that dismissed the I.As. He relies on paragraphs 4, 6 & 7 of the order which are reproduced herein :
"4. This Court before dwelling upon the issue on merit considers it proper to reiterate the language of Sec.340 of CrPC which reads as under:-
"Sec.340(1)- When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred Page 13 of 18 to in clause (b) of Sub-Section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary;
(a) record a finding to that effect;
(b) make a complaint thereof in writing;
(c) send it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance for the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate." xx xx xx xx xx xx xx.
A careful reading of the language as laid down in Sec.340 of CrPC, it appears to the Court that when the Court feels it expedient in the interest of justice to initiate a proceeding, it can initiate such proceeding in the nature of Sec.340 of CrPC against the persons prima facie liable for the offences referred to Sec.195(1)(b) of the CrPC, but it is not mandatory for the Court to proceed against the aforesaid persons, inasmuch as the language that has been used in Sec.340 of CrPC confers discretion to initiate proceeding, if in the opinion of the Court that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause
(b) of Sub-Section (1) of Sec.195 of the CrPC. In this present case, the petitioner-Rajeev Lochan Das and his wife Sonia Tripathy are admittedly in custody, but the bail application of Rajeev Lochan Das has already been disposed of with rejection of bail to him. Further, this Court considers it profitable to refer to paragraph- 23 of the decision in Iqbal Singh Marwah & Another vs. Meenakshi Marwah & Another; (2005) 4 SCC 370 ; wherein a Constitutional Bench of Page 14 of 18 five Judges of our Apex Court has held there as under:-
"23. In view of the language used in Section 340 CrPC the court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the section is conditioned by the words "court is of opinion that it is expedient in the interests of justice". This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(1)(b). This expediency will normally be judged by the court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice. It is possible that such forged document or forgery may cause a very serious or substantial injury to a person in the sense that it may deprive him of a very valuable property or status or the like, but such document may be just a piece of evidence produced or given in evidence in court, where voluminous evidence may have been adduced and the effect of such piece of evidence on the broad concept of administration of justice may be minimal. In such circumstances, the court may not consider it expedient in the interest of justice to make a complaint. The broad view of clause
(b)(ii), as canvassed by learned counsel for the appellants, would render the victim of such forgery or forged document remediless. Any interpretation which leads to a situation where a Page 15 of 18 victim of a crime is rendered remediless, has to be discarded."
xxx xxx xxx
6. Be that as it may, the petitioner-Rajeev Lochan Das is in custody since 10.11.2023 and he is still there in custody, but the informant wants to prosecute him for further in a proceeding in the nature of Sec.340 of CrPC by filing application before this Court, but this Court does not consider it to be expedient in the interest of justice to initiate a proceeding in the nature of Sec.340 of CrPC against the petitioner-Rajeev Lochan Das and his wife-Sonia Tripathy since they are in custody and their liberty has been curtailed. Besides, the allegation against the petitioner for initiation of the proceeding in the nature of Sec.340 of CrPC is for furnishing false address, but as to how the informant was prejudiced for furnishing such incorrect address by the petitioner and his wife has not been substantiated by the informant. Besides, the informant does not want to proceed against the deponent (Advocate Clerk), advocate and the corporator in I.A. No. 80 of 2025.
7. In the aforesaid facts and situation and considering the requirement before initiating a proceeding in the nature of Sec. 340 of CrPC. and the language used therein, this Court does not consider it proper to proceed against the petitioner and his wife by directing initiation of proceeding U/S.340 of CrPC or filing any complaint against them."
14. In view of the above discussions, in considered opinion of this Court, the petition is not entertainable as it would amount to alter/review final order disposing of the I.A. No. 1045 of 2023 by order dated 05.10.2023 (along with BLAPL No. 6107 of 2023 out of which the I.A. arose) without there being any arithmetical or clerical error sought to be corrected.
Page 16 of 1815. I.A. being devoid of merit has to be and is dismissed accordingly.
(Mruganka Sekhar Sahoo) Judge dutta Signature Not Verified Digitally Signed Signed by: AJIT KUMAR DUTTA Reason: Authentication Location: ohc Date: 23-Apr-2026 22:34:55 Page 17 of 18