Binu Paul vs Baburaj and Another

Hon''ble Mrs. Justice D. Sreedevi

By order dated 20.7.2000, this court disposed of the above Crl.M.C. directing the learned Judicial First Class Magistrate, Muvattupuzha to give custody of the vehicle bearing registration No. KBF 6163 to the petitioner. The first respondent filed the above Crl.M.P. u/s 482 Cr.P.C. to recall the above order and to dispose of the matter afresh, as according to him, the above order was passed without jurisdiction as no Crl.M.C. is maintainable against an order passed u/s 452 Cr.P.C.

The petitioner Babu Raj filed Crl.M.C. No. 2839/99 for custody of the bus bearing registration No. KBF 6163. The first respondent filed a complaint before the Judicial First Class Magistrate alleging that Baburaj and one Rajesh committed robbery of the bus from the limits of Muvattupuzha Police Station. Crime No. 82/96 was registered against them u/s 392 IPC. The bus was taken custody by the police from Baburaj. Later the police submitted a refer report. The court dismissed the case and the bus was ordered to be released to the registered owner and not to the accused. Hence, Babu Raj filed Crl.M.C. 2839/99 for release of the vehicle to him u/s 452 Cr.P.C. This court allowed the Crl.M.C. by the impugned order. Hence the above petition has been filed by the respondent.

The question that arises for consideration is whether criminal M.C. is maintainable against the order passed u/s 452 Cr.P.C. Mr. Ramakumar, learned counsel for the respondent, who is the petitioner herein, submitted that Section 454 Cr.P.C. provides for appeal against orders u/s 452 and hence the Crl.M.C. filed by the petitioner is incompetent and as such the order passed thereon is illegal and hence he prays for recalling the said order and to pass fresh orders. It is true that Section 454 provides for appeal against the orders passed u/s 452. The order dated 4.12.1998 passed by the Magistrate shows that it was an order passed on an application u/s 452 Cr.P.C.

Mr. Bechu Kurian Thomas, learned counsel for the petitioner in Crl.M.C, submitted that the petition to rehear the Crl.M.C. is not maintainable u/s 362 Cr.P.C. Section 362 Cr.P.C. provides:

Save as otherwise provided by this code or 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.

He has also submitted that eventhough the order mentions Section 452 Cr.P.C, the said order cannot be said to be an order u/s 452 Cr.P.C

When there has been no inquiry or trial in criminal court, Section 452 is not applicable and no order can be made under it. In order that Section 452 may apply one of the conditions is that there must have been an inquiry or trial in any criminal court and that such inquiry or trial must have been concluded. An inquiry or trial must have commenced before they are concluded. Hence where the offence is compounded before the inquiry or trial commenced, Section 452 will have no application. The mere fact that the FIR was lodged suspecting some person cannot entitle a Magistrate to pass an order of disposal of properties u/s 452 Cr.P.C. In this case, based on the refer report, the court disposed of the case and properties. Therefore, eventhough it is mentioned in the order that it is an order u/s 452 Cr.P.C, it cannot be an order u/s 452 Cr.P.C Therefore, Section 482 can be invoked and as such Crl.M.C. is maintainable in this court.

Mr. Ramakumar submitted that in the decision reported in Raj Narain and Others Vs. The State, the court held that the High Court has power to revoke, review, recall or alter its own earlier decision in a criminal revision and rehear the same. But, in the decision reported in Sankatha Singh Vs. State of U.P., the apex court held that a High Court has no power to review or restore an appeal which has been disposed of. It also held that inherent powers cannot be exercised to do what the Code specifically prohibits the court from doing.

In the decision reported in Dasappa and another v. State of Mysore (AIR 1965 Mys 224) the court held that the case of the petitioners did not come under any of the provisions of the Cr.P.C. and the review petition was misconceived. Such a review would be clearly against the principle of finality of orders of dismissal passed by the High Court and that the petitioners were to blame themselves for not having apprised their Advocate of all material facts. The Allahabad High Court in the decision reported in Rajul and Another Vs. State of Uttar Pradesh, held that the application for recall of judgment could not be granted in view of Section 362 Cr.P.C. The application cannot be granted even by invoking inherent powers of court u/s 482 Cr.P.C. The Supreme Court in the decision reported in State of Orissa Vs. Ram Chander Agarwala and Others, held that the High Court has no power to alter or review its own judgment. Reading of Section 369 (present Section 362) discloses that the section prohibits all courts when it has signed its judgment to alter or review the same except to correct a clerical or arithmetical error. So far as the High Court is concerned, the prohibition against alteration and the review of the judgment will be subject to Letters Patent on the High Court. What is clerical and arithmetical error mentioned in Section 362 has been dealt with by the Supreme Court in the decision reported in Smt. Sooraj Devi v. Pyare Lal and another ((1981) SCC 500). The Supreme Court held that a clerical or arithmetical error is an error occasioned by an accidental slip or omission of the court. It represents that which the 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.

In view of my above discussion, Crl.M.P. is dismissed and the order dated 20.7.2000 is confirmed.