K. Mathiazhagan vs Maladevi and Another

David Annoussamy, J.—This is a petition under S.482, Crl.P.C. by the petitioner seeking some modification in the order passed on

21.7.1986 in Crl. M.P. 9455 of 1985 Reported in 1986 L.W. (Crl.) 301. The circumstance in which the order was passed is as follows:

The first respondent herein filed O.P. 56 of 1981 before the Sub-Court of Salem, for restitution of conjugal rights. That petition was dismissed

on 11.9.1984, by the trial court holding that there was no proof of marriage between the parties. On appeal by the first respondent herein, the

Additional District Judge, Salem, by judgment, dated 18.4.1985 held that there was a valid marriage and accordingly allowed the petition for

restitution of conjugal rights filed by the wife. As against that judgment, the husband preferred C.M.S.A. 32 of 1985 before this Court and it was

admitted. He also filed along with the C.M.S.A. No. 32 of 1985, a petition for stay, which is still pending and in which no interim stay was granted.

While so, the respondent filed before the Judicial Pint Class Magistrate, Salem a petition under S.125, Crl. P.C., claiming maintenance to the tune

of Rs. 800 per mensem for herself and another sum of Rs. 500 per mensem for bet child. The petitioner herein filed Crl. M.P. 9455 of 1985 under

S.482, Crl. P.C., to quash the proceedings, M.C. No. 36 of 1985 instituted by the wife before the Judicial First Class Magistrate of Salem. In that

petition the petitioner urged among other things that if the petition under S.125, Crl. P.C., before the Magistrate was not quashed, the Magistrate

would sit in judgment over the finding given by the District Court, Salem, and adjudicate the same issues. While disposing of Crl. M.P, 9455 of

1985 by order, dated 21.6.1986 it was observed by this Court as follows

Secondly, when the matter has been decided by the civil court holding that there is marriage, the Magistrate will not go into the question of finding

whether there is marriage or not and the parties are precluded from adducing evidence in that matter.

Crl. M.P. 9455 of 1985 was dismissed, since none of the points raised by the husband-petitioner herein was found in his favour.

In this petition the husband prays this Court to modify the order passed in Crl. M.P. 9455 of 1985 by clarifying to the extent that the petitioner

is entitled to all defences available to the petitioner including the question of whether the first respondent is the legally married wife of the petitioner

and thus render justice.

This petition is resisted by the wife on the ground that the petition is not maintainable.

The parties were heard on the point. The plea of the petitioner is that this Court has jurisdiction to review its earlier order and give the relief

prayed for in the petition. In this connection, he placed reliance on the following two decisions. In the first decision, viz., Raj Narain and Others Vs.

The State, , the Allahabad High Court held that by virtue of its inherent power reserved under S.561-A (present S.482) and excluded from its

purview S.369 (present S.362), Crl. P.C., the High Court can revoke, review, recall or alter its own earlier decision in a criminal revision and

rehear the same. The second decision is one in Mohammad Wasi and Another Vs. State, , in which it was held as follows

Where a court discovers that an order has been passed which upon the face of the record is erroneous and unjust, and the defect is of such a

glaring nature that it could be said that having regard to the materials on record, the court had no jurisdiction to pass it or that it failed to exercise a

jurisdiction vested in it by law, the court may, and indeed is bound to, review its own order and modify or set aside, in order to secure the ends of

justice.

The case of the Learned Counsel for the petitioner is that there is one such error in the order passed by this Court Crl.M.P.9455 of 1985 on 21st

July, 1986 and that a review was possible and necessary to rectify that error.

Learned Counsel for the respondents would contend that there was no error in order, that the observation now sought to be removed was

invited by the petitioner himself expressing an apprehension of contradictory findings and that at any rate there was no jurisdict on for this Court to

review its order. He placed reliance for this latter proposition on two decisions of the Supreme Court, viz. State of Orissa v. Ramchander AIR

1976 S.C. 87, and Smt. Sooraj Devi Vs. Pyare Lal and Another, .

Though much has been said by the parties for and against the supposed error in the order, it is not necessary in this petition go into that aspect

since the point to be decided is whether the petition itself is maintainable or not. It is true that the decisions relied upon by the Learned Counsel for

the petitioner gives wide scope for review by this Court of its own decision. But those decisions are no longer good law, in view of the subsequent

decisions of the Supreme Court relied upon by the Learned Counsel for the respondents. From the decisions of the Supreme Court relied on by

the Learned Counsel for the respondents the following propositions can be gathered: (1) there is an express provision under S.362, Crl.P.C,

prohibiting the court from altering or reviewing its judgment when once it has signed it; (2) the provisions of S.362 of the Code is general in its

application and applies to the High Court as well; (3) The prohibition in S.362 against the court altering or reviewing its judgment is subject to what

is ''otherwise provided by this Code or by any other law for the time being in force�; (4) these words refer only to those provisions where the

Court has been expressly authorised by the Code or other law to alter or review its judgment; (5) the inherent power of the Court under S 482 of

the Code is not one contemplated by the savings provisions contained in S.362 Crl P.C (6) the inherent power of the court under S 442, Crl.P.C,

cannot be exercised for doing that which is expressly prohibited by the Code itself; (7) once a judgment or an order has been pronounced by the

High Court either in exercise of its appellate or revision jurisdiction, no review petition can be entertained against that judgment or order except in

the case of a clerical or arithmetical error; and (8) such an order in one occasioned by an accidental slip or omission of the Court and represents

that which the court never intended to say.

In the instant case, there is no such error. The direction sought to be modified was made purposely taking into consideration the special nature

of the proceedings under S.125, Crl.P.C., the apprehension ex pressed by the petitioner himself and in the interests of justice in the circumstances

of the case. It is not therefore an arithmetical or clerical error within the meaning of S.362, Crl. P.C. as explained by the Supreme Court and

susceptible of being rectified Therefore, the petition has necessarily to fail and is accordingly dismissed.