Chhangur Maurya and Another vs State of U.P. and Others

G.S.N. Tripathi, J.—The only point urged before me is that the learned Magistrate concerned could not have reviewed his own order as the bar u/s 362, Code of Criminal Procedure operates against the same.

Section 362, Code of Criminal Procedure reads as follows:

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.

The words of importance are ''judgment or final order. It means that Section 362, Code of Criminal Procedure covers only the case of final order. When such a final order has been passed; the same may be got set aside by the appellate or revisional court or by the same court. There is no dispute to the fact that once a final order has been passed, the same could not be set aside. The case is covered by the pronouncement of the Hon''ble Supreme Court in the case of Sankatha Singh Vs. State of U.P., , paragraph 7 of the judgment runs as follows:

A criminal appeal cannot be dismissed for the default of the Appellants or their counsel. The Court has either to adjourn the hearing of the appeal to enable them to appear, or should consider the appeal on merits and pass the final order. Sri Tej Pal Singh was aware of this as his order itself indicates. He did not dismiss the appeal for default. He himself perused the judgment of the Magistrate and the record and did consider the merits, as he says in his order; ''I find no ground for any Interference''. The mere fact that he had not expressed his reasons for coming to that opinion does not mean that he had not considered the material on record before coming to the conclusion that there was no case for Interference. His omission to write a detailed judgment in the circumstances, may not be in compliance with the provisions of Section 367 of the Code and may be liable to be set aside by a superior Court, but will not give him any power to set It aside himself, and re-hear the appeal. Section 369, read with. Section 424 of the Code, makes it clear that the appellate court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error.

Thus, It is clear that the bar u/s 362, Code of Criminal Procedure operates only in case of final order in disposing of the matter and not to an interim order.

The present case is, admittedly, a case of interim order passed by the learned Magistrate concerned u/s 133, Code of Criminal Procedure At that time, he did not hear the opposite party. He realised the mistake when an application for setting aside the ex parte order was made and, accordingly he set aside the same.

I think the order passed by the learned Magistrate is perfectly right. The revision has no force.

The revision is dismissed. Let the record be sent to the learned trial court, who shall decide the case according to law.