bsb IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL CRIMINAL CRIMINAL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CRI. CRI. CRI. APPLICATION NO. 233 OF 2008 APPLICATION NO. 233 OF 2008 APPLICATION NO. 233 OF 2008 IN IN IN CRI. CRI. CRI. APPLICATION NO. 794 OF 2008 APPLICATION NO. 794 OF 2008 APPLICATION NO. 794 OF 2008 Creative Garments Pvt. Ltd. ... Applicant (Ori.Accused No.4) V/S The State of Maharashtra & ors. ... Respondents (Resp.No.2, Ori complanant, Resp.Nos.3 to 5 Ori.applicants) Mr.Subhash Jha i/by Divya Sanghvi for the applicant. Mr.Y.M.Nakhwa, A.P.P. for the Resp. No.1 State. Mr.Zal Andhyarjuna i/by Vivek M. Sharma for Resp.No.2. ALONGWITH ALONGWITH ALONGWITH CRI. CRI. CRI. APPLICATION NO. 234 OF 2008 APPLICATION NO. 234 OF 2008 APPLICATION NO. 234 OF 2008 IN IN IN CRI. CRI. CRI. APPLICATION NO. 794 OF 2008 APPLICATION NO. 794 OF 2008 APPLICATION NO. 794 OF 2008 Vijay Kumar Agarwal & ors. ... Applicants (Ori.Accused) v/s The State of Maharashtra & ors. ... Respondents (Resp.No.2 Ori.complainant, Resp.Nos.3, new added accused) Mr.Abad Ponda i/by G.B.Kedia for the applicant. Mr.A.A.Mane, A.P.P. for the Resp. No.1 State. Mr.Zal Andhyarjuna i/by Vivek M. Sharma for Resp.No.2. CORAM: CORAM: CORAM: SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. SMT.NISHITA MHATRE, J. DATED: DATED: DATED: 23RD APRIL, 2008 23RD APRIL, 2008 23RD APRIL, 2008 P.C. P.C. P.C.: 2 1. The applications have been filed for clarification of my order dated 31.3.2008. According to the applicants, the order dated 22.2.2008 passed by the Metropolitan Magistrate, 48th Court, Girgaum, Mumbai has been set aside only to the extent that it separates the trial of accused No.4 from the trial of accused Nos.1, 2 and 3, which needs to be clarified and, therefore, the order requires rectification. 2. The learned counsel for the complainant i.e. respondent No.2 submits that this Court has no jurisdiction to entertain the contentions raised in the application. He submits that the Supreme Court in the case of Smt.Sooraj Devi v/s Pyare Lal & anr., reported Smt.Sooraj Devi v/s Pyare Lal & anr., reported Smt.Sooraj Devi v/s Pyare Lal & anr., reported in in in A.I.R. 1981 SC 736, A.I.R. 1981 SC 736, A.I.R. 1981 SC 736, has held that the powers of the High Court under Section 482 of the Code of Criminal Procedure are circumscribed by the powers which the Court can exercise under Section 362. It is submitted that this Court can merely correct an arithmetical or clerical error occasioned by an accidental slip or omission by the Court. It is also submitted by the learned counsel for the complainant that in the cases of Simrikhia Simrikhia Simrikhia v/s Dolley Mukherjee, reported in A.I.R. 1990 v/s Dolley Mukherjee, reported in A.I.R. 1990 v/s Dolley Mukherjee, reported in A.I.R. 1990 SC SC SC 1605; (2) State of Kerala v/s M.M.Manikantan Nair, 1605; (2) State of Kerala v/s M.M.Manikantan Nair, 1605; (2) State of Kerala v/s M.M.Manikantan Nair, reported reported reported in (2001) 4 SCC 752; and (3) Hari Singh Mann in (2001) 4 SCC 752; and (3) Hari Singh Mann in (2001) 4 SCC 752; and (3) Hari Singh Mann v/s v/s v/s Harbhajan Singh Bajwa & ors., reported in (2001) Harbhajan Singh Bajwa & ors., reported in (2001) Harbhajan Singh Bajwa & ors., reported in (2001) 3 SCCC SCCC SCCC 169, 169, 169, the Supreme Court has reiterated its view that the High Court should not entertain such matters as it become functus officio the moment the official order disposing of the matter is signed. The learned counsel then submits that any rectification as sought by the applicants would in effect change the scope of the order. He points out that the applicants had challenged the entire order as seen from the prayers in the Criminal Application No.794 of 2008. This Court, according to the learned counsel, has set aside the entire order passed by the Additional Chief Metropolitan Magistrate and, therefore, the prayer has been dealt with while passing the order dated 31.3.2008, setting aside the order in relation to the application filed by the accused No.4 as well. 3. The learned counsel for the applicants has submitted that this Court can always rectify its own orders and he places reliance on the judgment of the Supreme Court in the case of Ram Bali v/s State of U.P., reported in 2004 Ram Bali v/s State of U.P., reported in 2004 Ram Bali v/s State of U.P., reported in 2004 SCC SCC SCC (Cri) 2045, (Cri) 2045, (Cri) 2045, where the Supreme Court has observed that, the statement regarding what transpired at the hearing as recorded in the judgment of the Court, is conclusive of the facts so stated and no one can contradict such statement on affidavit or by other evidence. However, it is incumbent on the party to 4 approach the same Judge while the matter is still fresh in the mind of the Judge if it thinks that the record needs to be corrected. 4. The learned counsel for accused No.4 has relied on the judgments in the cases of Shashikant Singh v/s Shashikant Singh v/s Shashikant Singh v/s Tarkeshwar Tarkeshwar Tarkeshwar Singh & anr., reported in (2002) 5 SCC 738 Singh & anr., reported in (2002) 5 SCC 738 Singh & anr., reported in (2002) 5 SCC 738 and Didigam Bikshapathi & anr. v/s State of A.P., Didigam Bikshapathi & anr. v/s State of A.P., Didigam Bikshapathi & anr. v/s State of A.P., reported reported reported in A.I.R. 2008 SC 527 in A.I.R. 2008 SC 527 in A.I.R. 2008 SC 527 and the judgment of the Division Bench of this Court in the case of Kiran Kiran Kiran Gokuldas Gokuldas Gokuldas Kalantry & ors. v/s Dr.Prithi Paul Singh Kalantry & ors. v/s Dr.Prithi Paul Singh Kalantry & ors. v/s Dr.Prithi Paul Singh Sethi, Sethi, Sethi, delivered in Criminal Application No.40 of 2008 delivered in Criminal Application No.40 of 2008 delivered in Criminal Application No.40 of 2008, which reiterates the same view. 5. Taking a conspectus of the judgments cited at the bar, in my opinion, the Supreme Court has laid down that the rectification can always be made while the matter is still fresh in the mind of the Judge as long as it deals with an arithmetical or clerical error on the happenings in the Court are not properly recorded. What is an arithmetical or clerical error has been considered and defined in Sooraj Devi’s Sooraj Devi’s Sooraj Devi’s case (supra), as follows: "A clerical or arithmetical error is an error occasioned by an accidental slip or omission of the Court. It represents that which the 5 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. Master Construction Co. (P) Ltd. v. State of Orissa (1966) 3 SCR 99 : (A.I.R. 1966 SC 1047)." 6. In this view of the matter, the power of rectification of an accidental slip is vested in this Court. The only rectification required in the order dated 31.3.2008 is that the impugned order dated 22.2.2008 is set aside to the extent that it directs separation of the trials of accused No.4 from the trial of accused No.1, 2 and 3 as arguments were advanced only on this issue when Criminal Application No. 794 of 2008 was heard. 7. The first sentence of para 2 of the order dated 31.3.2008 shall read as follows:- "In these circumstances, the impugned order would have to be set aside to the extent that it directs the separation of the case against 6 accused No.4." 8. Applications disposed of accordingly.