J. Ganesh Pandi vs HDFC Bank Ltd. and Others

S. Vaidyanathan, J.—This petition under Section 482 Cr.P.C. has been preferred by the petitioner, praying to recall the order dated 16.6.2014, passed in Crl. O.P. No. 20355 of 2013, in and by which, while modifying the conditions 1 to 6 imposed by the learned Judicial Magistrate, Theni at the time of ordering return of the vehicle, accorded permission to the first respondent herein, to sell the vehicle in order realise the money due to it.

The brief facts, necessary for disposal of the present petition, are that the first respondent herein is the financier of the vehicles, viz., Toyota Innova Car bearing Registration No. TN-07/BD 9559 and TATA LPK 1618 TC FBV Regd. model Tipper bearing Registration No. TN60 T 6181, which were seized by the second respondent pursuant to the registration of a criminal case in Cr. No. 55 of 2010 under Sections 406, 409, 420 r/w 34 IPC and Section 16(a) of Tamil Nadu Pan Brokers Act. A petition in Crl. M.P. No. 3789 of 2013 under Section 451 Cr.P.C. was moved before the learned Judicial Magistrate, Theni, by the first respondent, praying for return of the above said vehicles, which came to be allowed by the Magistrate, by order, dated 30.5.2013 with certain conditions, such as, executing a bond for Rs. 10,00,000/-, to produce R.C. book, shall not alter or sell or change physical structure of the vehicles, etc. Thereafter, the first respondent, approached this Court by way of filing a petition in Crl. O.P. No. 20355 of 2013, under Section 482 Cr.P.C., praying to set aside the conditions imposed by the learned Judicial Magistrate at the time ordering return of the vehicles and to grant permission to sell the said vehicles in order to realise the money. By order, dated 16.6.2014, this Court, while following the decision of this Court reported in 2011 (1) MLJ (Crl.) 191, allowed the petition setting aside the conditions and according the permission as sought for.

While that be so, the present petition has been moved by the petitioner who claims to the owner of the above said vehicles, under Section 482 Cr.P.C., praying to recall the above said order, dated 16.6.2014.

According to the learned counsel for the petitioner, pursuant to the orders of the Court below in Crl. M.P. No. 3789 of 2013, the first respondent did not take possession of the vehicles till 11.11.2013 and the petitioner moved a petition before the learned Magistrate in Cr. M.P. No. 1441 of 2014, seeking interim custody of the vehicles, which came to be allowed by order, dated 24.2.2014 by the learned Magistrate ordering interim custody of the vehicles to the petitioner, subject to the conditions mentioned therein and therefore, when the subsequent order, dated 24.2.2014 granting interim custody of the vehicles by the learned Magistrate is in force, without placing the said order before this Court, the first respondent got the present order, which amounts to wilful misrepresentation and hence, it amounts to playing fraud on the Court. Therefore, the learned counsel would contend that this Court has powers to recall the order since the order obtained by the first respondent by suppressing the material fact and playing fraud on the Court. In support of his contentions, the learned counsel relied upon the decisions, reported in "R. Rajeshwari versus H.N. Jagadish" (2008) 4 SCC, wherein, it has been held in para 15 as under:

"15. In view of the aforementioned specific bar created in regard to exercise of the jurisdiction of the High Court to review its own order, we are of the opinion that ordinarily exercise of jurisdiction under Section 482 of the Code of Criminal Procedure would be unwarranted. We assume that in some rare cases, the High Court may do so where a judgment has been obtained from it by practising fraud but it does not appear that such a case has been made out....."

In Deepa Gourang Murdeshwar Katre Vs. The Principal, V.A.V. College of Arts. and Others, ", wherein, the Hon''ble Supreme Court has held as under:

"33. It is well settled by a catena of decisions of this Court that if a case of fraud or misrepresentation of such a dimension is discovered that the very basis of the order passed by a court of law is affected, the court can recall its order. The power to recall an order founded upon fraud and misrepresentation is an inherent power of the court."

The learned counsel also contended that since the present order itself was obtained by suppressing the material facts and playing fraud upon the Court, the said order cannot be termed as either final order or a judgment and therefore, Section 362 Cr.P.C. is not a bar to review or alter the same. In support of his contention, the learned counsel relied upon a decision of the High Court of Allahabad reported in Raghuvera and Others Vs. State of U.P., " wherein, it has been held as under:

"The term "Judgment" has not been defined in the Criminal Procedure Code, but a judgment means the expression of the opinion of the Court arrived at after due consideration of the entire material on record, including the arguments, if any, advanced at bar, a final order or judgment can only be passed in a criminal Court when court applies its mind to the merit of the case. In case the order is passed in a criminal proceeding and the application for revision is dismissed for default as not pressed, the said order cannot be taken as either final order or a judgment. This Section 362 Cr.P.C. is no bar to review or alter the order dated 14th March 1990. The order in question was passed without going into the merit of the case and is without jurisdiction and as such it has to be set aside."

The learned counsel also contended that since granting interim custody of the vehicles by proceedings under Section 451 Cr.PC. is in civil in nature as no adjudication of criminal liability was made, hence, Section 362 Cr.P.C. cannot have any application and thereby, there would be no bar for reviewing the order and this Court is fully competent to do the same. In support of his contention, he relied upon a decision of Kunhimohammed Vs. Nafeesa, , wherein, the High Court of Kerala has held as under:

"The order to be passed by the Court in proceedings under Section 125 Cr.P.C. is neither an order of acquittal nor a conviction. It is not an order of discharge too. The proceedings under Section 125 in Chapter X stands in a different footing than the order proceedings contemplated by the other provisions of the code. It is more civil in nature rather than a criminal trial as contemplated by the code. Hence, the argument advanced by the learned counsel for the respondents that order is not reviewable under Section 362 of the code cannot be accepted. Section 362 cannot have any application in respect of orders passed on proceedings under Chapter X of the Code. As Section 362 is not a bar for reviewing the order, this court is fully competent to review its earlier order."

He also contended that this Court can review or recall the order by invoking inherent powers in the event of subsequent events are not placed before it and if the litigant is not represented by his counsel effectively. In support of his contentions, he relied upon the decisions, reported in Simrikhia Vs. Dolley Mukherjee and Chhabi Mukherjee and Another, " and Habu Vs. State of Rajasthan, " and Asit Kumar Kar Vs. State of West Bengal and Others, .

In "Simrikhia''s case, the Hon''ble Supreme Court has held as under:

"If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court...."

With these contentions, the learned counsel for the petitioner prayed this Court to recall the order.

On the other hand, the learned counsel appearing for the first respondent would contend that first respondent has not suppressed any material before this Court as contended by the petitioner and being the financier of the vehicles, the first respondent is entitled to the custody of the vehicles and sell away the same in order to realise the money and accordingly, the first respondent moved the learned Judicial Magistrate and on obtained interim custody and thereafter, since the first respondent is unable to sell away the vehicle because of the conditions imposed, the first respondent filed the present Crl. O.P. No. 20355 of 2013 and obtained the order, which does not require to be reviewed or recalled. He would contend that inherent power of the court under Section 482 Cr.P.C. cannot be exercised for doing that which is specifically prohibited by the Code such as under Section 362 Cr.P.C. He pointed out that Section 362 Cr.P.C. in clear terms lays down that the Court cannot alter its own judgment after the same has been signed except to correct clerical or arithmetical errors that being the position this Court has no jurisdiction under Section 482 Cr.P.C. to alter its order since admittedly, no clerical or arithmetical errors were found in the order and the petitioner under the guise of non-consideration of relevant material, attempted to re-argue the matter for reconsideration by way of review, which cannot be entertained. In support of his contentions, the learned counsel relied upon the decisions, viz., State of Orissa Vs. Ram Chander Agarwala and Others, ; Smt. Sooraj Devi Vs. Pyare Lal and Another, "; Moti Lal Vs. State of Madhya Pradesh, ; State of Kerala Vs. M.M. Manikantan Nair, ; Hari Singh Mann Vs. Harbhajan Singh Bajwa and Others, .

In all the above decisions, it has been highlighted that the High Court has no jurisdiction to alter or review its own judgment or order except to the extent of correcting any clerical or arithmetical error. Practice of filing criminal miscellaneous petition after disposal of the main case and issuance of fresh directions in such petition is unwarranted and amounts to abuse of process of court and once a matter is finally disposed of, the Court, in the absence of a specific statutory provision, becomes functus officio in respect of that matter. The inherent power of the court under Section 482 cannot be exercised for doing that which is specifically prohibited by the Code such as under Section 362.

With these contentions, the learned counsel sought for dismissal of the petition.

Heard the learned counsel on either side and perused the entire materials available on record.

It is not in dispute that at earliest point of time, the first respondent moved the petition in Cr. M.P. No. 3789 of 2013 under Section 451 Cr.P.C. before the learned Judicial Magistrate, Theni for grant of interim custody of the seized vehicles, which was also ordered by the learned Magistrate on 30.05.2013 with certain conditions, after observing that after notice, the petitioner herein, owner of the vehicle, was not turned to claim the property. Thereafter, while the earlier order was in force, the petitioner moved a similar petition in Cr. M.P. No. 1441 of 2014 before the same learned Judicial Magistrate, Theni, praying for grant of interim custody in respect of the same vehicles. It is quite shocking and surprising to note that the learned Magistrate, without noticing the earlier order, once again ordered interim custody of the very same vehicles in favour of the petitioner herein. In the subsequent order, dated 24.2.2014, it has not been mentioned whether the first respondent herein, was served notice. The petitioner has canvassed in this petition that the first respondent has suppressed the subsequent order of the Court below which is in his favour and obtained the order for sale of the vehicle, which amounts to fraud played on the Court. In such circumstances, the petitioner prayed to recall the order, by invoking inherent powers of this Court under Section 482 Cr.P.C.

It is relevant to delve into the scope and ambit of Section 482 Cr.P.C. vis-�-vis the jurisdiction of this Court under this Section, which reads as follows:-

"482. Saving of inherent powers of High Court.- Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."

All Courts, whether civil or criminal, in the absence of an express provision, as inherent in their constitution, possess all such powers as are necessary to do the right and to undo a wrong in the course of administration of justice on the principle ''quando lex aliquid alicui concedit, concedere videtur id sine quo res ipsa esse non potest'' (when the law gives a person anything it gives him that without which it cannot exist). Section 482 Cr.P.C. thus, does not confer a new jurisdiction or power on the High Court. It merely safeguards all existing inherent powers possessed by it necessary to secure the ends of justice. These powers by this provision have been preserved lest it be considered that the only powers possessed by it are those which are expressly conferred by the Code and that no inherent power had survived with the passing of the Code. This Section was added so that the High Courts may not feel hesitant to exercise their inherent powers even in cases where injustice was palpable and apparent in its absence. It is a sort of reminder to the High Courts that they are not merely Courts of law but also Courts of justice and possess inherent powers to prevent and remove injustice.

The inherent power of the High Court is an inalienable attribute of the position it holds with respect to the Courts subordinate to it. The inherent jurisdiction of the High Court preserved under this Section is vested in it by "law" within the meaning of Article 21 of the Constitution.

The inherent jurisdiction possessed by the High Courts and as envisaged under Section 482 Cr.P.C. can be exercised in three circumstances, viz.,

(i) to give effect to an order under the Code;

(ii) to prevent abuse of the process of any Court; and

(iii) to otherwise secure the ends of justice.

The powers of the High Court under this Section are extraordinary in their nature and exercised ex debito justitiae, that is to say, for the purpose of doing real and substantial justice, for the administration of which the Courts of law exist. But this does not mean that these inherent powers are to be exercised where such powers have been expressly taken away by legislation and also cannot be invoked which are directly covered by the specific provisions of the legislation. If a remedy is specifically available under the Statute, High Court cannot, in such situations, invoke inherent jurisdiction. These powers are to be exercised only when there is no specific provision in the Code to meet a particular situation and only when no other remedy is available to the litigant. Inherent jurisdiction cannot be exercised against the provisions of law but needs to be exercised only in cases where substantial justice is required to be done and that too, where any one or more of the three circumstances, as mentioned in Section 482 Cr.P.C., exist.

It is a well established and recognized principle of legal jurisprudence that an act of the Court shall not harm any party, which means total and complete justice shall be done in the case by the Court. Relief will not be granted to a party whose hands are dirty with crime and misadventure or where it has not approached the Court bona-fide or with a mala-fide intention with an effort to mislead the Court especially when the facts are misrepresented or deliberately suppressed. It can conversely be said that when it comes to the knowledge of the Court that an order has been obtained by these means, the Court would exercise its inherent powers to see that justice is not made a causality by recalling or setting aside such order as the case may require.

The learned counsel appearing for the first respondent would vehemently contend that by virtue of Section 362 Cr.P.C., this Court does not have the power to recall or set aside its own order. Section 362 Cr.P.C. requires to be analyzed, which reads 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."

A perusal of the above Section leads us to a conclusion that there is a complete bar for altering or reviewing of a judgment or a final order on merits except to correct clerical or arithmetical error in the same. There is a difference between the recalling or setting aside of a judgment or an order and that of altering or reviewing it. What is forbidden is alteration or review of a final judgment or order disposing of a case but it does not prohibit the total abrogation of such judgment or order. There is, thus no specific bar contained in Section 362 Cr.P.C. or any other Section of the Code against the revoking, setting aside or recall of a judgment or an order and inherent powers under Section 482 Cr.P.C. can be resorted to by the High Court in exceptional cases for doing so. However, one or other of the three conditions mentioned in Section 482 Cr.P.C. should be fulfilled i.e. (i) to give effect to any order passed under the Code of Criminal Procedure (ii) to prevent abuse of the process of any Court (iii) otherwise to secure the ends of justice.

The Hon''ble Supreme Court in R. Rajeshwari Vs. H.N. Jagadish, while considering the effect and scope of Section 362 and Section 482 held in para 15 that although a specific bar has been created in regard to exercise of the jurisdiction of the High Court to review its own order and ordinary exercise of jurisdiction under Section 482 of the Code of Criminal Procedure would be unwarranted but in some rare cases, the High Court may do so where a judgment has been obtained from it by practicing fraud on it. In fact, the High Court is a Court of Record and under Article 215 of the Constitution of India, has all powers of such a Court of record including the power to punish contempt of itself. The High Court, as a Court of record, has inherent power to correct the record. It, as a Court of record, has a duty to keep its all records correctly and in accordance with law. In case any apparent error is noticed by the High Court or brought to its notice in respect of any orders passed by it, the High Court has not only the power but a duty to correct it.

Therefore, in rare cases, the High Court can review its own order where the judgment has been obtained from it by playing fraud on it. In the present case, the specific contention of the petitioner is that the first respondent having suppressed the subsequent order, dated 24.2.2014 passed by the learned Magistrate, granting interim custody in favour of the petitioner, the first respondent obtained the present order, which amounts to abuse of process of Court having played fraud on it. This contention, in my considered view, has no considerable force. The first respondent, after getting the interim order of custody of the vehicle, in order to sell the same to adjust the sale proceeds due to it by the petitioner, came forward with a petition to set aside the conditions imposed by the Court below since the same could not be complied with if sale of the vehicles is done. Considering the circumstances and following the decision of this Court, by order, dated 16.6.2014, this Court allowed the petition. It is not brought on record whether the first respondent was served notice regarding the petition in Cr. M.P. No. 1441 of 2014 filed by the petitioner, seeking interim custody of the vehicles. In the order, dated 24.2.2014 passed therein, the learned Magistrate has not mentioned regarding the notice served on the first respondent. In fact, though the petitioner was aware of the proceedings in Cr. M.P. No. 3789 of 2013 since he was served with notice, surprisingly, came forward with a petition in Cr. M.P. No. 1441 of 2014 without mentioning the earlier proceedings moved by the first respondent, for interim custody of the vehicle, which in fact, was already ordered by the learned Magistrate in favour of the first respondent on 30.5.2013. It is to be noted that the earlier order, dated 30.5.2013 granting interim custody of both the vehicles to the first respondent, was not a time bound one, i.e. to say if the conditions are not complied within a time frame, the order will automatically cease to operate. Therefore, the first respondent was at liberty that at any time, it can comply with the conditions and get the interim custody of the vehicles. The Court below, ought not to have ordered subsequent petition filed by the petitioner, while the first order, dated 30.5.2013 was in force. The petitioner cannot have the benefit of the order, dated 24.2.2014 unless the order, dated 30.5.2013 is, either set aside or recalled by the Court below. Therefore, absolutely, there is no fraud as alleged by the petitioner played by the first respondent in obtaining the order, dated 16.6.2014 from this Court, which warrants to recall the order by invoking inherent powers of this Court under Section 482 Cr.P.C.

For the reasons mentioned above, this Miscellaneous Petition stands dismissed.