Kirti Prakash and Others vs State of U.P.

N.K. Mehrotra, J.—This is a petition u/s 482 Cr.P.C. for recalling the judgment, and order dated 25-4-2003 passed in criminal Revision No. 160 of 1999 Kirti Prakash and others v. State of U.P.

Criminal Revision No. 160/1999 was listed for hearing on 25-4-2003. It was a revision against the order dated 9-6-1999 passed in Criminal Appeal No. 7 of 1999 upholding the order of conviction and sentence u/s 323/34 and 325/34 IPC. Both the Courts below had come to the conclusion that the accused persons are guilty under the aforesaid section. The revisionist did not appear to argue the revision. The revision was dismissed on merit after hearing the State Counsel. The present petition u/s 428 Cr.P.C. has been filed to recall the aforesaid order on the ground that the applicant had engaged Shri Rajat Krishna Advocate to argue the revision and Shri Rajat Krishna was on sanctioned leave since 2-1-2003 to 30-6-2003. The fact is that in the cause list the name of two counsel namely Shri S.K. Mishra and Shri Rajat Krishna were published as the counsel for the revisionist and Shri S.K. Mishra was not permitted to withdraw the authority on behalf of the applicants.

After hearing the learned counsel for the applicant, I find that the petition u/s 482 Cr.P.C. is legally not. maintainable. The learned counsel for the applicants has relied on Full Bench decision of Rajasthan High Court in Habu Vs. State of Rajasthan, , in which it has been held that the power u/s 482 Cr.P.C. can be and should be exercised by the Court for recalling the judgment in a case in which the hearing is not given to the accused but in view of the judgment of the Supreme Court in Hari Singh Mann Vs. Harbhajan Singh Bajwa and Others, , the aforesaid decision of the Rajasthan High Court is not a good law. It has been held by the Supreme Court, ''that there is no provision in the Code of Criminal Procedure authorizing the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power can not be exercised with the aid or under the cloak of Section 482. Section 362 of the Code mandates that no Court, when it has signed it''s judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error.

Further I find that, the Supreme Court has taken the same view in earlier decisions in Sankatha Singh Vs. State of U.P., , Smt. Sooraj Devi Vs. Pyare Lal and Another, and Manohar Nathurao Samarth Vs. Marotrao and Others, . In these cases, certain principles have been laid down, which can be summarized as follows:--

"1. That the powers to deal with the case must: flow from the statute.

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 altering or reviewing the judgment or the final order and as such principle of functus officio has been accepted.

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.

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 legal proposition, the instant Petition u/s 482 Cr.P.C. for recall of the judgment and order dated 25-4-2003 passed in Criminal Revision No. 160 of 1999 is dismissed.