Gangadhar (in Jail) vs State of U.P.

N.K. Mehrotra, J.—This is an application for recall of the order dated 27.5.1999 passed by this Court.

Heard the learned Counsel for the applicant and the learned Additional Government Advocate.

It appears that the Criminal Revision No. 202 of 1984 was filed against the judgment and order dated 5.4.1984, passed by the Vth Additional Sessions Judge, Hardoi, convicting and sentencing the revisionist to undergo a sentence of eight months R.I. and a fine of Rs. 1,000 by confirming the judgment and order of the Judicial Magistrate, Sadar, district Hardoi. This revision was dismissed by order dated 27.5.1999 by Hon''ble Naseemuddin, J., who has now retired. Therefore, this application for recall has been listed for hearing before this Bench.

The application for recall has been moved on 2.7.2003. It is accompanied by an affidavit. In para 2 of the affidavit, it is stated that the revision has been dismissed in default. This fact is incorrect. The revision was dismissed after discussing the merits of the case. No doubt, the revisionist was not heard. The grounds for recalling the order are alleged in paras 3 and 4 of the affidavit. The alleged ground is that on 27.5.1999 Shri A. R. Masoodi, advocate engaged by the revisionist sent an illness slip to the Bench Secretary making a request to adjourn the case but some how the illness slip could not be placed before the Hon''ble Court. These two paragraphs have been verified on the basis of personal knowledge. This version is not correct because the revisionist was not present in the Court and he cannot have personal knowledge. Shri A. R. Masoodi has not come forward to file the affidavit or to represent this revisionist and submit before this Court that his illness slip was not presented before this Court at the time of hearing. In para 5 of the affidavit it has been stated that the applicant revisionist came to know about the dismissal of the revision on 22.6.2003 when the police personnel reached the house of the deponent with warrant issued by the Chief Judicial Magistrate, Hardoi. It is shocking that the C.J.M. executed the order of this Court dated 27.5.1999 after a period of more than four years. These state of things cannot be tolerable by this Court. It is another shocking event that the police of the area is in collusion with the revisionist by giving him a liberty to remain enlarge by avoiding the orders of this Court for which the S.S.P., Hardoi, will take suitable action against the police of that particular area.

This application for recall has been filed on 2.7.2003. It is gross misuse of the judicial process. There can be no end for moving the application for recall even after a decade if, such applications are allowed.

Now, I come to the point as to whether this application for recall is legally maintainable or not. The learned Counsel for the applicant has referred the judgment of this Court in Badloo v. State, 1990 (3) ACrR 2727 (LB). This judgment has been discussed in Criminal Misc. Application No. 5626 of 2002 and other connected applications arising out of Criminal Revision No. 27 of 1993 decided on 1st April, 2000 and I have already given a judgment that this judgment is not conclusive. The facts of the case in which this order was passed in Badloo v. State (supra), are not similar to the facts of this case. The Hon''ble single Judge in Badloo v. State (supra), relied on two Full Bench decisions of Rajasthan High Court and Allahabad High Court in Habu Vs. State of Rajasthan, and Raj Narain v. State AIR 1989 All 315 and Makkapati Nagaswara Sastri Vs. S.S. Satyanarayan, and held that it would be unfair to punish the revisionist for the illness of his counsel and justice demands that the ex parte order dated 25.9.1997 should be recalled and the revisionist should be given an opportunity of hearing in revision. In Badloo v. State (supra), the revision was dismissed in default and first restoration application was also dismissed in default and the absence of the counsel was explained which facts are not available here.

Further a perusal of the judgment of the Hon''ble Supreme Court in Makkapati Nageshwara Shastri v. S. S. Satya Narain (supra) goes to show that the High Court had observed that:

This is a revision case where the Respondent is not entitled to be heard as of right and having regard to the facts of the case, I do not think any review of the order, already passed, is necessary.

In appeal against the aforesaid order, the Hon''ble Supreme Court took the view that view taken by the High Court is manifestly contrary to audi alteram partem rule of natural justice which was applicable to the proceeding before the High Court. A perusal of this judgment goes to show that the Hon''ble Supreme Court has not decided the legal question whether an application for recall of the order passed in revision can be entertained in spite of the bar u/s 362, Cr. P.C.

Section 362, Cr. P.C. is as follows:

Court not to alter judgment.-Save as otherwise provided by this Court 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.

Thus, it appears that the Hon''ble single Judge of this Court in Badloo v. State (supra) has mainly relied on the two Full Bench judgments of Allahabad High Court and Rajasthan High Court in Raj Narain v. State (supra) and Habu v. State of Rajasthan (supra).

After perusal of the judgment of the learned single Judge in Badloo v. State, I find that the following cases were not cited at the Bar before this Court:

(i) Sankatha Singh Vs. State of U.P., ;

(ii) Smt. Sooraj Devi Vs. Pyare Lal and Another, ;

(iii) Manohar Nathurao Samarth Vs. Marotrao and Others, .

In the aforesaid cases, the principles enumerated by the Hon''ble Supreme Court can be summarized as follows:

(1) That the powers to deal with the case must flow from the statute.

(2) That the powers given u/s 362, Cr. P.C. (Section 369, Cr. P.C. old) given to the Court for reviewing or altering is limited only for correcting an arithmetical or clerical error and specifically prohibits Courts from touching the judgment by taking away the powers of altering or reviewing the judgment or the final order and as such, principle of functus officio has been accepted.

(3) That the prohibition contained in Section 362, Cr. P.C. (Section 369, Cr. P.C. old) is not only restricted to the trial court but also extends to appellate court or the revisional court.

(4) That the inherent powers of the Court cannot be invoked where there is an express prohibition and in other words, Section 482, Cr. P.C. cannot be invoked.

In view of the aforesaid principles laid down by the Hon''ble Supreme Court, I am of the opinion that the judgment of this Court in Badloo v. State (supra), cannot be said to be conclusive on the point.

In view of the above, I find that firstly the application for recall of the order after the period of four years is gross misuse of judicial process and the merit also does not permit to recall the order dated 27.5.1999. Further this application for recall is not maintainable after a period of 4-1/2 years.

In result Criminal Misc. Application No. 3005 of 2003 is rejected.

Let a copy of this judgment be sent to the C.J.M., Hardoi, and the Senior Superintendent of Police, Hardoi, for taking appropriate steps for these faults as indicated above.