Satyendra and Others vs State of Madhya Pradesh and Another

G.D. Saxena, J.—This petition u/s 482 of the Code of Criminal Procedure 1973 has been preferred by the petitioners for recalling the order dated 27th July 2012 passed by this court in Misc. Cri. Case No. 5367/2012 with a further prayer either for quashing or transfer the FIR lodged by the Superintendent of Police Gwalior at the behest of respondent No. 2- Smt. Meenu Chauhan for commission of offence punishable u/s 498-A of I.P.C. to the Police Station Neemach. While submitting the instant petition, learned counsel for the petitioners points out that the respondent No. 2 by suppressing the material facts and without making the petitioners as party to the previous petition obtained the order. It is submitted that the place of incident in this case was Neemach and therefore, the Superintendent of Police Gwalior at earlier occasion rightly transferred the FIR lodged by the respondent No. 2 to P.S. Neemach Cant for proceeding further with the matter. In turn, the Police Station Neemach Cant after receiving the F.I.R. from Police Station Thatipur district Gwalior conducted investigation in the matter and thereafter filed charge-sheet before the Criminal Court having jurisdiction. It is submitted that the trial against the accused in that case is under progress. It is submitted that owing to directions of this court fresh F.I.R. has been registered on the application of the respondent No. 2 by P.S. Gwalior in which investigation is in progress. Under the circumstances, it is prayed that the directions dated 27th July 2012 issued in Misc. Cri. Case No. 5367/2012 may be recalled and the prayer made in the petition may be accepted.

Learned counsel appearing for the respondent No. 2, on the other hand, opposed the prayer made by the petitioners'' learned counsel for recalling the aforesaid directions. It is submitted that the prayer made in the petition is against the provisions contained in Section 362 of Cr.P.C. In such circumstances, it is prayed that the petition may be dismissed.

Learned Panel Lawyer for the respondent No. 1/State, in other words contends that the FIR registered at 0/12 on the report of respondent No. 2- Smt. Meenu Chauhan was written on 2nd May 2012 in Police Station Thatipur district Gwalior. By an order dated 14th June 2012 of the Superintendent of Police Gwalior, the same was transferred for registration of the crime against the accused. On receiving such an F.I.R. from Police Station Thatipur district Gwalior, Crime No. 331/2012 was registered for an offence u/s 498-A of I.P.C. in which investigation was launched on 15th June 2012. After investigation, the charge sheet was submitted to the Court of Chief Judicial Magistrate Neemach wherein trial is in progress. Apart the aforesaid, the resistance placed by the learned Panel Lawyer appearing for the respondent No. 1/State is that u/s 362 of the Code of Criminal Procedure 1973 except to correct a clerical or arithmetical error, no criminal court, when it has signed its judgment or final order disposing of a case, shall alter or review the judgment or final order. He further submitted that the inherent power vested u/s 482 of Cr.P.C. is intended to prevent the abuse of the process of the court and to secure ends of justice and such powers are controlled by the principles of the Statute. So, he prayed that the petition in all the circumstances deserves to be dismissed.

Heard the learned counsel for the parties and also perused the documents filed in support of the case and the law governing the situation

In order to appreciate the contentions put forth by the parties, the question that arises for consideration is whether an application for recalling the order passed on merits exercising the jurisdiction u/s 482 of Cr.P.C. by this Court, amounts to review of the order prohibited u/s 362 of the Code of Criminal Procedure which is the reversal part of the law.

Before going into the submissions of the learned counsel for the parties, let me now scrutinise the case law on the points raised.

In the case of Vishnu Agarwal Vs. State of U.P. and Another, , the Hon. Apex Court while making a distinction between the review and recall of an order held that in the facts and circumstance of the case recall is not barred u/s 362 Cr.P.C. Said observation are quoted below:-

It appears that the aforesaid Criminal Revision was listed in the High Court on 2.9.2003. No one appeared on behalf of the Revisionist, though the Counsel for respondents appeared. In these circumstances, the judgment was passed.

Subsequently, an application was moved for recall of the Order dated 2.9.2003 alleging that the case was shown in the computer list and not in the main list of the High Court, and hence, the learned Counsel for the Revisionist had not noted the case and hence he did not appear.

It often happens that sometimes a case is not noted by the Counsel or his clerk in the cause list, and hence, the Counsel does not appear. This is a human mistake and can happen to anyone. Hence, the High Court recalled the order dated 2.9.2003 and directed the case to be listed for fresh hearing. The aforesaid order recalling the order dated 2.9.2003 has been challenged before us in this appeal.

Learned Counsel for the appellant has relied on the decision of this Court in Hari Singh Mann Vs. Harbhajan Singh Bajwa and Others, Para 10 of the said judgment states:

Section 362 of the Code mandates that 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. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. The reliance of the respondent on Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another, is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts u/s 561A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed u/s 482 of the Code had been finally disposed of by the High Court on 7.1.1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment. "there can hardly be any dispute over the principle that an order made in the absence of a party without hearing him, when such order has been passed on merits and adversely effects his rights, may be recalled by this Court in exercise of its inherent powers u/s 482, Cr. P.C. However, the question in each case would be as to whether such a principle applies to the facts of a given case or not.

Apart from the above, we are of the opinion that the application filed by the respondent was an application for recall of the Order dated 2.9.2003 and not for review. In Asit Kumar Kar Vs. State of West Bengal and Others, this Court made a distinction between recall and review which is as under:-

There is a distinction between...... a review petition and a recall petition. While in a review petition, the Court considers on merits whether there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Excise Licensees Association Vs. Raghabendra Singh and Others, cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences.

It is true, if the fault lies on the part of the Court by way of non-appearance, a recall application should necessarily be allowed as any latches or fault should not be allowed to cause any harm to a party coming for relief before the Court. Further it is trite in law that no order shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. Since the petitioners herein were not party to earlier case, in view of the law laid down in the decision (supra), this court comes to conclude that it is not a case where the petitioners could raise the plea of depriving them of reasonable opportunity of being heard and passing the order behind their back. Obviously, when such an order is passed in the absence of a party without hearing him, recourse to section 482 of Cr.P.C. can be taken so as to secure the ends of justice. This having not been done, the prayer of the petitioners cannot be accepted.

So far as the submission with regard to registration of other F.I.R. is concerned, it may be mentioned here that First Information Report is a report which gives first information with regard to any offence. There cannot be second FIR in respect of the same offence/event because whenever any further information is received by the investigating agency, it is always in furtherance of the First Information Report. The investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge u/s 158 of the Code of Criminal Procedure, 1973 and all other subsequent information stands covered by Section 162 of the Cr.P.C. In the present case, on the written complaint of respondent No. 2, firstly the FIR was registered at 0/12 by P.S. Thatipur, district Gwalior on 2nd May, 2012 which later on due to falling in the jurisdiction of district Neemach was transmitted to P.S. Neemach for registration of the crime and investigation under the directions of the S.P. Gwalior. On receiving such communication, the FIR was registered by P.S. Neemach Cant at Crime No. 331/12 on 15/6/12 against present accused-petitioners, herein. Therefore, an information about Crime No. 331/12 which was received at 22 hrs, on 2/5/12 is prior to subsequent registration of the F.I.R. registered at Crime No. 361/12. It is settled in law that the investigating agency has to proceed only on the information about commission of a cognizable offence which is first entered in the Police Station diary by the Officer In-charge u/s 158 of the Code of Criminal Procedure, 1973. All other subsequent information is covered by Section 162 of the Cr.P.C. for the reason that it is the duty of the Investigating Officer not merely to investigate the cognizable offence reported in the FIR but also other connected offences found to have been committed in the course of the same transaction or the same occurrence and the Investigating Officer has to file one or more reports u/s 173 of the Cr.P.C. Even after submission of the report u/s 173(2) of the Cr.P.C., if the Investigating Officer comes across any further information pertaining to the same incident, he can make further investigation. Since the charge-sheet after investigation in Crime No. 331/12 is already filed then other FIR recorded in the First Information Register kept in the Police Station will not come within preview of FIR as no investigation was put in motion as per provisions of Section 157 of Cr.P.C. As informed, the charge-sheet has been filed and the cognizance has been taken in the matter by the court at Neemach, in the opinion of this court, it would be just and proper that the papers in relation with the FIR lodged in Police Station Thatipur may be placed before the trial court at Neemach for consideration of the same by the trial Magistrate during trial with a view to deter conflicting orders/judgments upon similar facts. It is made clear that the directions made by this court in Misc. Cri. C. No. 5367/2012 will not come in the way of trial before the court of CJM Neemach. Subject to above observations/directions, the petition stands disposed of.