1. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR S.B. CRIMINAL MISC. APPLICATION NO.970/2009 IN S.B. CRIMINAL MISC. PETITION NO.1331/2007 Jitendra Kumar & Ors. vs. State of Rajasthan & Anr. Date of Order: 13/10/2009 HON'BLE MR. JUSTICE RAGHUVENDRA S. RATHORE Reportable Mr. Aslam Khan, for the applicants. Mr. Javed Choudhary, Public Prosecutor. By the Court (Oral):- This criminal miscellaneous application has been filed by the applicants with the prayer that the order dated 11.08.2009 passed by this Court may be recalled in the interest of justice and the criminal miscellaneous petition No. (1331/2007) may be revived. 2. A Criminal Miscellaneous Petitition (1331/2007) was was filed by the petitioners with the prayer that First Information Report (36/2001) dated 02.02.2001 registered at Police Station Kotwali Tonk, District Tonk may be quashed. It was also prayed by way of interim relief that further investigation pursuant to the impugned FIR be stayed. On 28.09.2007, case diary of the matter was called for. Thereafter on 31.10.2007, notices were issued to respondent No.2 returnable by four weeks. It was also ordered that one set of paper book be supplied to the learned Public Prosecutor. Meanwhile, further investigation in FIR No.36/2001 registered at Police Station Kotwali Tonk, District Tonk was to 2. remain stayed till further orders. When the miscellaneous petition came up for consideration on 11.08.2009, learned Public Prosecutor informed that the investigation is complete and charge-sheet (143/2007) had been filed on 13.01.2008. In such view of the matter, it was ordered by this Court that nothing remains to be adjudicated in the miscellaneous petition and therefore, it was dismissed as infructuous. 3. In the present miscellaneous application, the petitioners have stated that after passing of the order on 11.08.2009, they had obtained the certified copies of the order- sheets dated 15.07.2009 of the learned Court below, in respect of criminal case relating to FIR No.36/2001, wherein it was mentioned that the case was ordered to be posted on 18.08.2009 awaiting result of the investigation (Annexure-A/1). Thereafter, the petitioners had also moved an application before the concerning SHO for obtaining information with regard to status of the charge sheet in the impugned First Information Report, whereupon he informed by letter dated 27.08.2009, that as per the record charge-sheet had been filed and accordingly, information was sent to the learned Public Prosecutor. But after due verification it was revealed that no charge-sheet has been filed in the instant case. It was also mentioned that the rectified information was sent to the learned Public Prosecutor on 13.08.2009 but as the criminal miscellaneous petition 1331/2007 had already stood dismissed on 11.08.2009, information could not be placed before the High Court (Annexure-A/2). 3. 4. Therefore, in view of the aforesaid facts revealed from the record and the communication received from the concerning police station, the present application for recalling the order dated 11.08.2009 passed in the criminal miscellaneous petition (1331/2007) has been filed. 5. When the matter came up before this Court on 09.09.2009, the learned Public Prosecutor was directed to call for the officer concerned, who had sent the factual report on 09.08.2009. Thereafter on 14.09.2009, the officer concerned was directed to file an affidavit in response to the averments made in the present miscellaneous application. Subsequently, an explanation with regard to the averments made in the application was submitted by the SHO, Police Station Kotwali Tonk, on 30.09.2009. The relevant documents from the record of the police station were also filed alongwith the explanation. It was stated in the explanation given by the SHO, which has been supported by his affidavit, that the entries in the register maintained at the police station were erroneously made. It was on 12.08.2009 that the Court Munshi Constable Raja Ram had informed that challan had not been filed in Criminal Case No.36/2001. As per the Jurayam Register, challan was filed by constable Sitaram. But constable Sitaram informed that after the challan was given to him for filing in court that he came to know about the stay order of the High Court. Therefore, the challan was not filed in the Court. Soon thereafter, the SHO had, vide his 4. letter dated 7173 dated 13.08.2009, informed the Government Advocate Office at the High Court, Jaipur. But the said report could not be filed before the Court as the matter had already been decided on 11.08.2009. Therefore, it was stated that on account of erroneous entry in the Jurayam Register at the time of giving the challan to the then Munshi that aforesaid misunderstanding was created in regard to filing of challan and there had been no malafide intention on the part of the SHO. It was also stated that the mistake was not deliberate and he apologised for the same. 6. Taking into consideration the aforesaid facts and circumstances, revealed after filing of this application, the question which come up for consideration is as to whether the prayer made by the applicants for recalling the order dated 11.08.2009 could be accepted. This question gains significance in view of the provision of Section 362 Cr.P.C. which creates a bar on the Court that it shall not alter or review its judgments or final order disposing of the case when the same has been signed except to correct a clerical or arithmetical error. It is also a settled principle of law that after passing of the judgment and a decision having been given in a matter, the Court cannot review the same. This question of law had come up for consideration earlier, from time to time and it had been laid down that an order can be recalled in certain circumstances. Ultimately a reference on the question was made by an Hon'ble Single Judge of the High Court in the case of Habu vs. State of Rajasthan, 5. 1987 RLW 69 on 28.05.1986, wherein he had framed following question, “Whether the judgment given in absence of the appellant or his counsel but the case decided on merits, can be re-called by the Court in its inherent powers under Section 482 Cr.P.C.” The Larger Bench of the High Court had thoroughly considered the question after taking into consideration a number of case law relevant to the point since the year 1925 in the case of Muhammed Sadiq s. The Crown, AIR 1925 Lahore 355. The learned Larger Bench had answered the question in the following term:- (i) That the power of recall is different than the power of altering or reviewing the judgment, (ii) That the powers under Section 482 Cr.P.C. can be and should be exercised by this Court for recalling the judgment in case the hearing is not given to the accused and the case falls within one of the three conditions laid down under Section 482 Cr.P.C. 7. In a recent judgment passed by the Hon'ble Supreme Court in the case of Minu Kumari & Anr. vs. State of Bihar & Ors., 2006 (1) WLC (SC) Criminal 586, similar question was considered in a case where a Magistrate had erroneously issued process against two persons, other than those against whom challan was filed by the investigation agency. Thereafter, the learned Magistrate had rectified his mistake and ordered to strike out the name of the two extra persons who had not been named by the police in the challan and the process had been issued against them. The said order was assailed before the learned Sessions Judge who had set aside the order of the learned 6. Magistrate. Thereafter, the High Court had also dismissed the petition under Section 482 Cr.P.C. on the ground that the learned Magistrate could not recall its own order in view of Section 362 Cr.P.C. on the pretext that it was a correction in clerical or arithmetical errors. However, the Hon'ble Apex Court after considering the factual scenario in the background of legal principles, had held that the High Court was not justified in rejecting the application in terms of Section 482 Cr.P.C. Further, it held that, this is a case when the cognizance was taken, summons were issued by mistake and the names of the appellants were also mentioned in the order. Since the police had not found any material against the appellants therein, learned Magistrate without follwing the procedure under law could not have directed for issuance of summons so far as they were concerned. There was no indication that learned Magistrate disagreed with the opinion of the investigation agency. The learned Magistrate had noted that it was a mistake and thereafter he had ordered to strike of the name of the appellants. For the said reasons, the Hon'ble Apext Court, after allowing the appeal, had set aside the order of the High Court and the names of the appellants therein were ordered to be struck of from the array of the accused persons. 8. A similar situation to that of the present one had arose before the High Court in the case Pooran Singh vs. Udaiveer Singh & Anr., 2006(2) R.C.C. 1127, where a criminal miscellaneous petition was filed seeking recalling of an 7. order which was passed on the statements that a compromise had reached between the parties, whereas no compromise was reached. In such a situation, it was held by the Court that the material before it shows that compromise had not been arrived at between the parties and the order which was obtained on a false statement was not sustainable. Therefore, the earlier order passed by the High Court was recalled. 9. In a recent case of R. Rajeshwari vs. H.N. Jagadish, (2008) 4 SCC 82, the Hon'ble Supreme Court had reiterated the aforesaid principle and observed in para 15, as under:- “In view of the aforementioned specific bar created in regard to exercise of the jurisdiction of the High Court to review its own order, we are of the opinion that ordinarily exercise of jurisdiction under Section 482 of the Code of Criminal Procedure would be unwarranted. We assume that in some rare cases, High Court may do so where a judgment had been obtained from it by practising fraud but it does not appear that such a case has been made out.....” 10. Looking to the facts and circumstances of the present case where it is revealed from the material on record, particularly the explanation given by the SHO of the police station as to how by mistake an erroneous entry had been made in a Jurayam Register which was subsequently pointed out by another constable and soon thereafter on 13.08.2009 letter was sent to the office of Government Advocate, Jaipur and the aforesaid principle of law, I am of the considered opinion that the 8. instant case is a rare case where the application filed by the applicants deserves to be allowed. 11. In the result, the criminal miscellaneous application No. (970/2009) is allowed. The order passed by this Court on 11.08.2009 is recalled. Consequent to the recalling of the order, the criminal miscellaneous petition No. (1331/2007) stands revived from the stage when the order dated 11.08.2009 was passed and the same is to be proceeded further for consideration. Office is directed to place criminal miscellaneous petition No.1331/2007 for consideration, before the appropriate Bench. (RAGHUVENDRA S. RATHORE),J. tikam/-Jr.P.A. Item no.s-4