IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R State of Rajasthan vs. Prem Raj & Ors. S.B.Criminal Reference No.1 of 2007 under Section 395 (2) of the Criminal Procedure Code. Date of the Order ::: January 3, 2008 Present HON'BLE MR.JUSTICE G.S.SARRAF Mr.Jainendra Jain, P.P. Mr.S.K.Gupta present to assist the Court. None present for the appellants in criminal appeal No.32/2004 pending in the court of Additional District and Sessions Judge, Hindaun City. Reportable By the Court:- Heard learned P.P. and Mr. S.K.Gupta, Advocate. During the course of hearing of Criminal Appeal No. 32/2004 Prem Raj and others vs. State of Rajasthan, Additional District & Sessions Judge Hindaun City found himself confronted with two questions which he has referred to this Court under Section 395(2) Cr.P.C. The questions referred when translated into english read as under:- 1.Whether the judgments passed earlier in two out of three appeals filed by different sets of accused against a common judgment passed in a criminal matter on identical charges, holding the charges under Sections 148 and 149 IPC not proved against the accused and, therefore, acquitting them, would be legally binding on the successor in office hearing the pending third appeal for the charges under Sections 148 and 149 IPC ? 2.Whether, if in the remaining third appeal the court convicts the accused under Sections 148 and 149 IPC, would it not amount to review of the earlier order on the point and whether, in that situation the court has the jurisdiction to reach an independent conclusion and pass an order accordingly ? The background in which the controversy has arisen may be sammarised thus. On the written complaint submitted by the complainant Arvind Kumar on 24.10.1994 a criminal case No.109/2004 was registered under Sections 307, 324, 323, 147,148 and 149 IPC on the same day by the police station Shrimahaveerji, district Karauli. After investigation, a charge-sheet was filed against nine accused persons namely; Rewati, Sajan, Ramesh, Rai Singh, Pradhan, Hansraj, Gajraj, Ram Charan and Prem Raj under Sections 307, 326, 324, 323, 147, 148 and 149 IPC in the court of Judicial Magistrate No.1 Hindaun City. The case was then committed to the Court of Sessions under section 209 Cr.P.C. who by order dated 4.9.2001(Sessions Case No.49/2000) discharged the accused from the charge under Section 307 IPC and transferred the case for trial in the court of Additional Chief Judicial Magistrate, Hindaun City. Learned Additional Chief Judicial Magistrate, Hindaun City vide its judgment dated 3.9.2004 convicted all the nine accused persons under Sections 148, 323, 324/149, 325/149 and 326/149 IPC and sentenced them to various terms of imprisonment and fine. Three different appeals were filed against the judgment dated 3.9.2004. The accused Rewati filed appeal No.30/2004. The accused Sajan, Rai Singh, Ram Charan, Ramesh and Pradhan filed appeal No.31/2004 and the accused Prem Raj, Hansraj and Gajraj filed appeal No.32/2004 in which the present controversy has arisen. In all these three appeals, execution of sentence was suspended by a common order dated 20.9.2004. The above three appeals, which should have remained connected, were detached by the office as a result of which all the three appeals came up for hearing at different point of time. This was a serious mistake committed by the clerk concerned and was not noticed by the Presiding Officer also. The criminal appeal No.30/2004 was decided on 11.10.2004 and the accused Rewati was acquitted of all the charges levelled against him. The Criminal appeal No.31/2004 was decided on 3.12.2004 and the three accused namely; Ram Charan, Rai Singh and Ramesh were acquitted from all the charges levelled against them including the charges under Sections 148 and 149 IPC whereas the accused Sajan was convicted under Sections 323, 324 and 325 IPC and the accused Pradhan was convicted under Section 323 IPC but these two accused were also acquitted from the charges under Sections 148 and 149 IPC. Thus, one accused in criminal appeal No.30/2004 and five accused in criminal appeal No.31/2004 were acquitted of the charges under Sections 148 and 149 IPC. It is thus clear that when the third appeal No.32/2004 came up for hearing before the Additional District and Sessions Judge, Hindaun City, six out of nine accused had already been acquitted of the charges under Sections 148 and 149 IPC. The predicament of learned Additional District and Sessions Judge, Hindaun City is reflectd in the above quoted two questions and which are interconnected which may be answered as under:- Section 362 Cr.P.C prohibits the court from altering or revising any judgment or final order disposing of a case after it has been signed except for the purpose of correction of clerical or arithmetical error. This section embodies the principle of functus officio and as such a Court has no jurisdiction to review or alter its judgment or final order passed on merits. Therefore, the earlier judgments passed in criminal appeals Nos. 30/2004 and 31/2004 have become final and cannot be reviewed. Since six out of the total nine accused charged jointly for the offence under Sections 148 and 149 IPC, have been acquitted by the judgments passed in criminal appeals Nos.30/2004 and 31/2004, the remaining three accused cannot be convicted under Sections 148 and 149 IPC as the accused appellants are now only three in number and there is no question of their forming an unlawful assembly within the meaning of Section 141 IPC. It is not the prosecution case that apart from the said nine accused persons there were other persons who were involved in the crime. Therefore, on the acquittal of six accused persons, the remaining three accused persons (appellants in crimnal appeal No.32/2004) cannot be convicted under Section 148 or Section 149 IPC because the first condition to be fulfilled in designating an assembly an `unlawful assembly' is that such assembly must be of five or more persons as required under Section 141 IPC. I am therefore, of the opinion that learned Additional Sessions Judge, Hindaun City is left with no option except to return a verdict of acquittal in favour of the remaining three accused appellants in criminal appeal No.32/2004 as far as the offence under Sections 148 and 149 IPC is concerned. Reference stands answered as above. Before I part with, I thank Mr.S.K.Gupta, Advocate for the invaluable assistance rendered by him. (G.S.Sarraf),J. Bairwa