IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.1270 of 2011 RAJESHWAR THAKUR, SON OF SIDESHWAR THAKUR, RESIDENT OF 305 SARAN VIHAR APARTMENT, G.D. MISHRA PATH, NEW PATLIPUTRA COLONY, P.S. - PATLIPUTRA, DISTRICT – PATNA, AT PRESENTLY RESIDING AT 204, RAM HARI APARTMENT BIRSHIVAJEE PATH, NORTH SRIKRISHNAPURI, BORING ROAD, PATNA-13, P.S. - SHRIKRISHNAPURI, DISTRICT – PATNA. ------- PETITIONER VERSUS 1. STATE OF BIHAR 2. DILIP KUMAR MISHRA, SON OF SRI VISHNUDEO MISHRA, RESIDENT OF MOHALLA- HARRAKH, P.S. - TOWN, DISTRICT – BEGUSARAI. ----- COMPLAINANT ---- OPPOSITE PARTIES. *** For the petitioner: Mr. Kamal Kishore Jha, Adv. Mr. Jay Prakash Jha, Adv. For the State: Mrs. Shaheen Begum, A.P.P. *** 5 16 /5/2011 Heard Sri Jay Prakash Jha, learned senior counsel appearing on behalf of the petitioner and Mrs. Shaheen Begum, learned Addl. Public Prosecutor. The present petition which has been filed under Section 482 of the Code of Criminal Procedure in the garb of making a prayer for modification of order dated 2nd November, 2010 passed in Cr. Misc. No. 8768 of 2007 has virtually been filed for review of order passed by this Court. The petitioner had earlier filed Cr. Misc. No. 8768 of 2007 under Section 482 of the Code of Criminal Procedure with a prayer to quash an order dated 20.05.2006 passed by Smt. Anjana Kumari Lal, learned J.M. Ist Class, Begusarai, in 2 Complaint Case No. 551(C) of 2006, whereby, the learned Magistrate had taken cognizance of offences under Sections 327, 406, 420 & 504/34 of the Indian Penal Code. The said quashing application was firstly taken up on 30.03.2007, and on the date, this court had passed an order for issuance of notice to Opposite Party No. 2. Subsequently, on 28.08.2007, when the matter was taken up by a bench of this Court, it was submitted that one Cr. Misc. Case arising out of the same Complaint Case was pending before a different bench, in which, stay was also granted. Accordingly, it was directed to list the case before the same bench. On 04.01.2008, at the time of hearing of the Cr. Misc. No. 8768 of 2007, it was submitted on behalf of the petitioner that case of this petitioner was on identical footing with that of one Santosh Kumar, who had filed an application against the impugned order of cognizance. Accordingly in view of order dated 23.04.2007 passed in Cr. Misc. No. 36524 of 2006 the petition i.e. Cr. Misc. No. 8768 of 2007 was admitted for final hearing. In the meanwhile, it was directed that further proceeding of Complaint Case No. 551(C) of 2006 pending in the court of Smt. A.K. Lal, J.M. Ist Class, Begusarai, shall also remain stayed so far this petitioner was concerned. After the case was 3 admitted and it was listed under the heading “For Hearing” before this Court and when the case was called out on 29.10.2010 for hearing, none appeared on behalf of the petitioner either to press the petition or to make a prayer for adjournment. The case was however adjourned for the day with an indication that no further adjournment shall be granted. While adjourning, it was also noticed, that in the case interim order of stay was continuing since 04.01.2008. Again, on 02.11.2010, none appeared on behalf of the petitioner. However, after perusal of the complaint petition as well as the impugned order, the Miscellaneous Case No. i.e. Cr. Misc. No. 8768 of 2007 was rejected. It would be appropriate to quote the order dated 02.11.2010 which is as follows: “Today again, on call none appeared on behalf of the petitioner either to press this petition or to make a prayer for adjournment. However, Sri Kumar Priya Ranjan, learned Addl. Public Prosecutor appearing on behalf of the State is present. On 29.10.2010 also none appeared on behalf of the petitioner. However, the case was adjourned for the delay with an indication that no further adjournment shall be granted. While adjourning the case, it was noticed that in this case, interim order of 4 stay was continuing since 04.01.2008. 2. The sole petitioner, while invoking inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure, has prayed for quashing of an order dated 20.5.2006 passed by Smt. Anjana Kumari Lal, learned Judicial Magistrate, 1st Class, Begusarai in Complaint Case No. 551(C) of 2006. By the said order, the learned Magistrate has taken cognizance of offences under Sections 327, 406, 420, 504/34 of the Indian Penal Code. 3. I have perused the complaint petition as well as the impugned order. I do not find any defect in the order of cognizance. Accordingly, the petition stands rejected. 4. In view of rejection of the present petition, interim order of stay dated 4.1.2008 stands automatically vacated. Let a copy of this order be sent to the court below forthwith.” After the aforesaid order was passed and Cr. Misc. No. 8768 of 2007 was rejected, on 11.01.2011, the present petition was filed. The petitioner has virtually made a prayer for review of the order. However, in the prayer portion it has been prayed to modify/recall the order. While pressing the present petition Sri Jay Prakash 5 Jha, learned Senior Counsel has even tried to give an impression that this Court had committed an error while dismissing the petition filed by the petitioner in absence of learned counsel for the petitioner. Sri Jha has placed heavy reliance on a recent judgment of Hon‟ble Apex Court reported in 2011 Cri. L.J. 1690 (Md. Sukur Ali Vs State of Assam). In the light of judgment of the Hon‟ble Apex Court in Md. Sukur Ali‟s Case (Supra), it was submitted by Mr. Jha, that since it was a criminal matter this Court was not justified in dismissing the petition on merit without hearing learned counsel for the petitioner. On the question put by the Court as to whether this Court can review its own order or not, learned senior counsel for the petitioner submitted that under Section 482 of the Code of Criminal Procedure this Court has got ample jurisdiction to review its own order. In support of his argument Sri Jha has referred to 1988 P.L.J.R. 1130 (Kashi Nath Singh & Ors. Vs. State of Bihar & Ors.), 2009(3) J.L.J.R. 16 (Basant Kumar Jhawar Vs State of Jharkhand & Ors.) & A.I.R. 2006 S.C. 1937 (Minu Kumari & Anr. Vs State of Bihar & Ors.). Learned senior counsel for the petitioner has also cited A.I.R. 6 1987 Rajasthan 83 (Habu Vs State of Rajasthan) & A.I.R. 2007 S.C. 1481 (Madhumilan Syntex Ltd. & Ors. Vs Union of India & Anr.). Sri Jha while referring to Minu Kumari‟s Case (Supra) has argued that Hon‟ble Supreme Court has even approved the order passed by a Magistrate who had recalled its own order. It has been pleaded that while admitting Cr. Misc. No. 8768 of 2007 it was directed that this petition shall be heard alongwith Cr. Misc. No. 36524 of 2006. On the date when quashing application of this petitioner was heard and dismissed, the Cr. Misc. No. 36524 of 2006 which was filed by co-accused was pending. Learned counsel for the petitioner further on the basis of supplementary affidavit filed in the present case has argued that the case which was to be heard alongwith the quashing application of this petitioner was finally allowed by a bench of this court on 15.04.2011. While allowing Cr. Misc. No. 36524 of 2006 other petitions filed by other accused persons were also allowed. The order passed by this court in other quashing application has been brought on record by annexing as 'Annexure-1/B' to the supplementary affidavit. 7 The petitioner has pleaded that initially the present case was being conducted by some other Advocates. However, at subsequent stage the case was handed over to Sri Kamal Kishore Jha and Sri Rajiv Kumar Singh, learned Advocates, who were attached with Sri Jay Prakash Jha, learned senior Advocate. Sri Kamal Kishore Jha and Sri Rajiv Kumar Singh had signed „Vakalatnama‟ on behalf of the petitioner and same was filed but since year of the case number was incorrectly mentioned in the „Vakalatnama‟ their names did not appear on the daily cause list, and as such, the case went unnoticed. In the supplementary affidavit, to emphasize, that on the daily cause list name of Sri Kamal Kishore Jha and Sri Rajiv Kumar Singh, learned Advocates, was not appearing, the petitioner has enclosed a photo copy of the relevant page of the daily cause list of 2nd November, 2010. In the daily cause list name of learned counsel on behalf of the petitioner was mentioned as Sri Sambhu Nath Choubey, Sri Arun Kumar Lal, Sri Manoranjan Kumar Mishra and Sri Saroj Kumar Choubey. It has further been pleaded that despite the fact that in the „Vakalatnama‟ year of the case was wrongly mentioned the Office of the High Court had not returned the same to learned counsel. 8 In the aforesaid facts and circumstances, it was prayed to recall/modify the order dated 02.11.2010 passed in Cr. Misc. No. 8768 of 2007. Besides hearing Sri Jay Prakash Jha, learned senior counsel for the petitioner, I have again perused the materials available on record in Cr. Misc. No. 8768 of 2007 and also examined the pleadings in the present modification petition. From the record of Cr. Misc. No. 8768 of 2007, it is evident, that „Vakalatnama‟ was filed by four Advocates whose names were appearing on the daily cause list. Except one „Vakalatnama‟ there is no separate „Vakalatnama‟. The plea of learned counsel for the petitioner that petitioner had authorized other Advocates for conducting the case and „Vakalatnama‟ was also filed but mentioning of the year of the case incorrectly, has simply got no substance and such pleas are required to be noticed only for its rejection. Fact remains that on two consecutive dates none appeared on behalf of the petitioner and finally after perusing the materials available on record this court had rejected the petition on merit. Once a petition is rejected on merit the court becomes functus officio, and as such, the present petition can not be noticed and is required to be rejected in limine. The court is also of the 9 opinion that the present petition is misconceived and was filed only with a view to waste the precious time of the court. Even in the present petition learned senior counsel has consumed considerable time of the Court. Under the Code of Criminal Procedure there is specific bar on review of an order which has been prescribed under Section 362 of the Code of Criminal Procedure. This position has further been clarified by the Hon‟ble Apex Court in number of cases. Before referring to case law it would be appropriate to quote Section 362 of the Code of Criminal Procedure which is as follows: “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.” On perusal of aforesaid provision there is no ambiguity that once a judgment or order is signed it can not be recalled/modified/reviewed save and except making correction of clerical or arithmetical error. In (2001) 4 S.C.C. 752 (State of Kerala Vs M.M. Manikantan Nair) three Judges‟ bench of Hon‟ble Supreme 10 Court has reiterated that High Court can only make correction of clerical or arithmetical error in an order/judgment. It would be appropriate to quote paragraph no. 6 of the judgment which is as follows: “The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the court after it has signed its judgment or final order disposing of a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed. By the first order dated 31-5-2000, the High Court rejected the prayer of the respondent for quashing the criminal proceeding. This order attained its finality. By the impugned order, the High Court reversed its earlier order and quashed the criminal proceeding for want of proper sanction. By no stretch of imagination can it be said that by the impugned order the High Court only corrected any clerical or arithmetical error. In fact the impugned order is an order of review, as the earlier order was 11 reversed, which could not have been done as there is no such provision under the Code of Criminal Procedure, but there is an interdict against it.” Hon‟ble Supreme Court in M.M. Manikantan Nair‟s Case (Supra) has reiterated the judgment reported in (2001)1 S.C.C.-169 (Hari Singh Mann Vs Harbhajan Singh Bajwa). In Hari Singh Mann‟s Case (Supra), it was considered that Section 362 of the Code of Criminal Procedure was drafted in view of recommendation of „41st Report‟ of the „Law Commission‟ which has extended the bar of review not only to the judgment but also to the final orders other than the judgment. It is appropriate to quote paragraph no. 10 of the judgment passed in Hari Singh Mann's Case (Supra) which is as follows: “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 12 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. The reliance of the respondent on Talab Haji Hussain case is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561-A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7-1-1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment.” The Hon‟ble Apex Court has also deprecated filing 13 of miscellaneous cases after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court. It would be appropriate to quote relevant portion of paragraph nos. 8 & 9 of the judgment passed in Hari Singh Mann's Case (Supra) which is as follows: “8. ......The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the court. 9. There is no provision in the Code of Criminal Procedure authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.....” While applying bar on review of an order the Hon‟ble Apex Court in a case reported in (2001) 7 S.C.C. 673 (State of M.P. Vs Kajad) has held that without any change in the circumstance even a bail petition can not be entertained 14 and without change in the circumstances second bail application would be deemed to seeking review of the earlier judgment which is not permissible under the criminal law. In view of provisions contained in Section 362 of the Code of Criminal Procedure, 1973 coupled with the law clarified by the Hon‟ble Apex Court in aforesaid cases this Court is of the opinion that allowing the present petition would amount to reviewing earlier order which is impermissible. So far as Minu Kumari‟s Case (Supra) is concerned the said case was purely on different footing. In the said case, an F.I.R. was lodged against number of accused persons, and after investigation, Police submitted charge sheet only against two accused persons and female accused persons were exonerated by the Investigating Officer. So, on record, there was no charge sheet against female accused which include Minu Kumari and others. After submission of the charge sheet, the learned Chief Judicial Magistrate took cognizance of the offences and also ordered for issuance of summons and made over the case to the Court of Judicial Magistrate, Ist Class for its disposal. Thereafter, petition was filed by Minu Kumari and others in the Court of Chief Judicial Magistrate, praying therein, that due to clerical error the names of the appellants 15 had also been mentioned in the order of cognizance. Thereafter, the learned Chief Judicial Magistrate, called for the record from the Court of Magistrate and ordered to strike off their names. The said order was assailed before the Addl. Sessions Judge and learned Addl. Sessions Judge in view of Section 362 of the Code of Criminal Procedure set aside the order passed by the learned Chief Judicial Magistrate. The order of learned Addl. Sessions Judge was questioned before the High Court (Patna High Court). However, same was also rejected. Accordingly, from the fact of the aforesaid case, it is evident that due to error and by mistake even those persons were summoned who were not forwarded by the Police in its charge sheet. In the said case order of learned Addl. Sessions Judge was not doubted. Accordingly, it is evident that the case of Minu Kumari (Supra) relied upon by Sri Jay Prakash Jha, learned senior counsel for the petitioner has got no application in the facts and circumstances of the present case. Similarly, Kashi Nath Singh‟s Case (Supra) has got no application in the facts and circumstances of the present case. In Kashi Nath Singh‟s case, name of learned counsel 16 for the petitioner in the daily cause list was incorrectly mentioned due to that reason learned counsel could not appear before the Court. Moreover, in the said case, Criminal Revision petition was rejected by this Court and the order was to be modified/recalled in view of Section 401(2) of the Code of Criminal Procedure and also on the ground of incorrectly mentioning the name of learned counsel for the petitioner in the daily cause list. So far as Basant Kumar Jhawar‟s Case (Supra) which was decided by a single bench of Hon‟ble Jharkhand High Court is concerned, same was also for recall of an order passed in a Criminal Revision petition and one of the reason for recall of the order was provision contained in Section 401(2) of the Code of Criminal Procedure, which is as follows: “No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.” Accordingly, the petitioner can not get any help from Basant Kumar Jhawar‟s Case (Supra). So far as argument advanced by learned counsel for the petitioner that without hearing learned counsel for the 17 petitioner this Court was not required to dismiss the petition on merit is concerned, the Court is of the opinion that such argument is not available to learned counsel for the petitioner before the same bench. An order passed by a Court can not be assailed before the same Court. This amounts to contempt particularly in view of availability of remedy to assail the order. Reliance of Sri Jha, learned senior counsel for the petitioner on Md. Sukur Ali‟s Case (Supra) on the point that this Court was not required to dismiss the case on merit in absence of learned counsel for the petitioner makes it clear that learned senior counsel was virtually assailing the order passed by a Court before the same bench which is impermissible. So far as judgment passed in case of co-accused i.e. order dated 15th April, 2011 (Annexure-1/B to the supplementary affidavit) is concerned, the same can not be noticed by this Court merely on the ground that said judgment was passed subsequent to dismissal of the quashing application of this petitioner. Before concluding, I must deprecate that in the petition for modification/recall, the petitioner has made some 18 incorrect statements, particularly, in paragraph no. 5 of the petition which is quoted below: “That one of the co-accused filed another quashing application arising out of the same order of cognizance and was heard by Hon'ble Mr. Justice Subash Chandra Jha in which stay was granted and therefore this matter was also ordered to be placed alongwith Cr. Misc. No. 36524 of 2006 and after hearing this Hon'ble Court finally found that the case of this petitioner also is on identical footing and therefore this case was also admitted for final hearing alongwith this said Cr. Misc. No. 36524/2006 and further proceeding in the Court below was stayed against the petitioner also.” While admitting Cr. Misc. No. 8768 of 2007 on 04.01.2008, in specific word it was never said, that Cr. Misc. No. 8768 of 2007 will be heard alongwith Cr. Misc. No. 36524 of 2006. After noticing the submission of learned counsel for the petitioner the order was passed. For better appreciation, it is appropriate to quote order dated 04.01.2008 which is as follows: “Learned counsel for the petitioner submits that the case of this petitioner is on identical footing with that of 19 Santosh Kumar who has filed an application against the impugned order of cognizance and vide order dated 23.4.2007 passed by a Bench of this Court in Cr. Misc. No. 36524 of 2006, the same has been admitted for final hearing. In the facts and circumstances, this Cr. Misc. No. 8768 of 2007 filed on behalf of the petitioner Rajeshwar Thakur is also admitted for final hearing. In the meantime, further proceedings of Complaint Case No. 551C of 2006, pending in the court of Smt. A.K. Lal, J.M. Ist Class, Begusarai, shall also remain stayed so far this petitioner is concerned.” In view of the facts and circumstances as indicated above and also on the proposition of law, the Court is of the opinion, that present petition is totally misconceived, and accordingly, same is liable to be rejected and same is hereby rejected with a cost of Rs. 1,000/-. Praful (Rakesh Kumar, J.)