Om Prakash Arora and Ors. vs State of U.P.

V.N. Mehrotra, J.—This application has been filed by the applicants for recalling he orders dated 1791991 and 2521991 passed by this Court in Criminal Revision No. 345 of 1989, Om Prakash Arora and two others v. State of Uttar Pradesh.

The facts of the case are that the present applicants filed Criminal Revision in question praying that the order dated 24121988 passed by the Chief Metropolitan Magistrate, Kanpur Nagar, summoning the applicants under Section 420/467/468, I. P. C. be quashed. The revision was admitted by this Court on 831989. It was listed for hearing on 2521991. However on that date the applicants or their Counsels were not present but the Counsel for the opposite parties were present. The revision was directed to be dismissed in default of the Counsel for the applicants. The stay order granted earlier was also vacated.

Subsequently the applicants moved an applications on 1651991 praying that the order dated 2521991 dismissing the revision in default be recalled. It was asserted by the applicants that Shri S.K. Misra, Advocate was their Counsel in the revision, while Sri Rajeshwari Prasad was the Senior Advocate, Sri S. K. Misra had shifted to Delhi for practising at Supreme Court and Sri Rajeshwari Prasad, Senior Advocate was ill and for this reason the applicants or their Counsel could not appear in the Court on the date fixed. It was further asserted that actually Sri D.P. Singh was not engaged by the applicants in this case. He was engaged in another case and for this reason Sri D.P. Singh also did not appear in this case. It was asserted that the applicants were informed by neighbor that there was rumour that the revision has been dismissed in default. That application was opposed by the opposite parties and after hearing the parties on merits I rejected the application by order dated 1791991 holding that no sufficient ground for recalling the order of dismissal had been made out. The applicants have now again moved the present application praying that the order dated 1791991 and also the earlier order dated 2521991 be recalled.

The main ground on which this application has been moved is that this Court could not have dismissed the criminal revision in default once same had been admitted, hence the order passed by this Court was without jurisdiction. It has also been contended that apparently there was mistake by this Court, hence that mistake should be corrected and merely because an earlier application moved by the present applicants has been rejected, this Court is not barred from correcting the mistake committed by recalling the earlier orders.

The learned Counsel for the opposite parties has, however, opposed this application asserting that this Court is barred from recalling the order setting aside its earlier order, in view of the provision of Section 362, Cr. P. C. It has also been argued that there was no mistake of this Court in dismissing the criminal revision in default of the applicants. It has further been argued that the order dated 2521991 was a final order and in any case after the application moved by the applicants for recalling that order was dismissed on 1791991, that order Le. order dated 1791991 was a final order and the same cannot be set aside or recalled by this Court while exercising its inherent power under Section 482, Cr. P. C.

Section 362 of the Cr. P. C. provides that:

"Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed it judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

In view of this provision this Court will cease to have jurisdiction to alter or review its judgment or final order disposing of a case after the same has been signed. Even under the provision of Section 482, Cr. P. C. this Court cannot alter or review such a judgment or final order. The learned Counsel for the applicants have argued that the order dismissing the criminal revision in default cannot be a final order. He has further argued that the order dated 1791991 rejecting the application for recalling the earlier order cannot also be said to be a final order and, hence the provisions of Section 362, Cr. P. C. cannot bar the inherent powers of this Court to correct its own mistake. The learned Counsel has referred to the ruling in the case of Raghuvera & Ors. v. State of U.P, 1990 JIC 799 in support of his argument. The facts of this case show that the applicants had filed revision before this Court against the order passed by the Additional Sessions Judge dismissing the appeal of the applicants. 1431990 was fixed for admission of the revision in this Court. On the date fixed none appeared on behalf of the applicants and so the revision application was dismissed as not pressed. The applicants then moved an application for recalling that order. This Court observed that the order dismissing the revision is not pressed cannot be termed as judgment, hence the bar of Section 362, Cr. P C. was not applicable. It was further observed that the order in question was passed without going into the merits of the case and is without jurisdiction and as such it has to be set aside. In this case the decision of the Hon''ble Supreme Court in the case of Ram Naresh Yadav & Ors. v. State of Bihar, AIR 1987 SC 1500 was not noticed. In Ram Naresh Yadav''s case an appeal was filed by the appellants against their conviction. On the date fixed for hering nobody appeared for the appellants. The High Court disposed of the appeal on merits in the absence of the appellants. The Hon''ble Supreme Court held that the appeal could not have been decided on merits without hearing the appellants or their Counsel. It was then observed that the Court can dismiss the appeal for nonprosecution. Thus, according to this observation, though the appeal could not have been decided on merits in the absence of the appellants or their Counsel, the same could have been dismissed for nonprosecution. Considering this reuling it cannot be said that this Court could not have dismissed the criminal revision in default of the revisionists of their Counsel.

In the circumstances I am unable to agree with the contention of the Counsel for the applicants that the order dated 2521991 was passed without jurisdiction or that there was any mistake on the part of this Court in dismissing the revision in default of the applicants. On the facts of the present case it is not necessary to consider as to whether an order dismissing the revision in default can be termed as a judgment or final order so as to attract the bar of Section 362, Cr. P. C, though according to the decision in Raguveera''s case (supra) such a bar will not be attracted.

The real hurdle which the applicants faced in this case is the order of this Court passed on 1791991 rejecting their application for recalling the order dated 2521991; that order was passed on merits after hearing the parties. That order can be said to be a ''final order'' disposing off a case within the meaning of the term mentioned in Section 362, Cr. P. C, so this Court cannot alter or review the order dated 1791991 by which I have declined to recall the earlier order dated 2521991. As mentioned earlier, it cannot be said that the order dated 252 1991 was without jurisdiction or there was any mistake on the part of this Court. This Court cannot exercise its inherent power under Section 482, Cr. P C. so as to review its own judgment or final order. Reference may be made to the decision in the case Mosst. Simrikhia v. Smt. Dolley Mukherjee alias Smt. Chabbi Mukherjee & Am AIR 1990 SC 1605. The learned Counsel for the applicants has referred to the ruling in the case A. R. Antulay v. R. S. Nayak & Am., AIR 1988 SC 1539, in support of his contention that this Court should exercise its powers under Section 482, Cr. P. C. to correct its own mistake. The Hon''ble Supreme Court has in this case observed that if a mistake is detected and the Apex Court is not able to correct it with a view to doing justice for fear of being misunderstood, the cause of justice is bond to suffer and for the apex Court the apprehension would not be a valid consideration. It was also observed that situation can and do arise when Supreme Court may be constrained to recall or modify an order which has been passed by it earlier and that when exfade there is something radically wrong with the earlier order, the Court may have to exercise its plenary and inherent powers to recall the earlier order without considering itself bound by the nice technicalities of the procedure for testing this done where a mistake is committed by a subordinate Court or a High Court, there are ample powers in Supreme Court to remedy the situation.

There can obviously be no two opinions about the principle laid down by the Hon''ble Supreme Court as regards the jurisdiction of that Court or the High Court to correct its own mistake by exercising its inherent powers. However, the question remains as to whether there was any mistake on the part of this Court in dismissing the criminal revision in default of the applicants or their Counsel. The reply to this question is in the negative. In the circumstances this Court cannot exercise inherent powers to set aside the order dated 1791991 by which the application by the applicant for recalling the earlier order dated 2521991 was dismissed as the provisions of Section 362, Cr. P. C. bar the exercise of any such power.

In the circumstances, this application has no force and is dismissed.