Shri Abbas Baig vs State of Goa and Another

N.A. Britto, J.—Heard learned Counsel on behalf of both parties. Applicant/Complainant''s application for leave to appeal against the acquittal of the accused u/s 138 of the Negotiable Instruments Act, 1881, filed u/s 378 of the Code of Criminal Procedure, 1973 came to be dismissed for default on 11/08/2008, and, the present application has been filed for recall of the said order dated 11/08/2008.

Learned Counsel on behalf of the Applicant/Complainant has referred to a Division Bench judgment of this Court in Mahendrakumar Shantilal Shah and others Vs. State of Maharashtra, and has submitted that this Court could exercise its powers u/s 482 to recall the order dated 11/08/2008 and has further submitted that such a power of recall would be available to the High Court but not to the subordinate Courts as stated by the learned Division Bench. Learned Counsel has also relied upon the cases of Kishan Singh Vs. State of U.P., , Bani Singh and ohters Vs. State of U.P., , Madan Lal Kapoor Vs. Rajiv Thapar and Others, . Reliance has also been placed on the cases ofState of Orissa V/s. Debaraj Tarini & Ors. (2000) 10 SC 173, State of Punjab Vs. Bhag Singh, and lastly on the case of Jaspal Singh (2) V/s. State of Punjab ( 2006 (10) SCC 472).

As far as the judgments cited of the Apex Court, there can be no dispute that an appeal or a revision petition cannot be dismissed without going into the merits of the same. The said judgments do not show what is a remedy provided in case of such dismissal, whether this count being a criminal Court would be in a position to recall or review the orders of dismissal and restore the case to file.

In fact, it can be seen from the last case cited on behalf of the Applicant/Complainant i.e. Jaspal Singh (2) V/s. State of Punjab (supra) that the High Court had dismissed the criminal case for non-prosecution owing to the non-appearance of the counsel for the petitioner and it was contended before the Hon''ble Supreme Court that a criminal case could not be dismissed for non-prosecution. It is to be noted that it is the Apex Court who set aside the order of dismissal and remitted the matter to be heard afresh in accordance with law. In other words, no application for restoration was made to the same High Court, in as much as, no such application could be made and the law as far as this Court is concerned is fairly well settled.

In the case of Smt. Amita Grover V/s. State of Goa (unreported judgment dated 11/08/2008 in Criminal Misc. Application No. 189/2008) this Court had occasion to refer to another decision of this Court in the case of M/s. Venus Steel Products V/s. Shri Michael Francis Pinheiro (dec.) through his widow & Anr. (2005 ALL MR (Cr.) 2753) wherein it was held that:

The applicant''s application has been styled as an application for restoration. The concept of restoration is unknown to the Code of Criminal Procedure, 1973. The only remedy which might have been available to the applicant under the Code was either of recalling the order of dismissal or reviewing the same. As already stated, the Order dated 21.4.04 is a final order disposing of the criminal revision application filed by the applicant. The same cannot be recalled or review in view of the specific bar created by Section 362 of the Code and as held by the Hon''ble Supreme Court in the judgments referred to hereinabove.

This Court further observed that there can''t be two opinions that as far as this Court is concerned, the order dated 28/07/2008 is a final order putting to an end to the proceedings filed for cancellation of bail. The same principle has got to be applied here as the order dated 11/08/2008 is a final order as far as this Court is concerned, dismissing the application for leave to appeal. There is nothing more to be done in the said proceedings, as far as this Court is concerned. Reference was also made to the case of Sunita Jain Vs. Pawan Kumar Jain and Others, , wherein the Apex Court has again reiterated that:

Section 362 makes it clear that a Court cannot alter or review its judgment or final order after it is signed except to correct clerical or arithmetical error. The scheme of the Code, in our opinion, is clear that as a general rule, as soon as the judgment is pronounced or order is made by a Court, it becomes functus officio (ceases to have control over the case) and has no power to review, override, alter or interfere with it.

The Apex Court has further noted that;

The Section starts with the words "save as otherwise provided by this Code". Thus, if the Code provides for alteration, such power can be exercised. For instance, sub-section (2) of Section 127 which provides for the same. But in the absence of express power, alteration or modification of judgment or order is not permissible.

The view held by the learned Division Bench in the decision cited hereinabove must now give way to the law laid down by the Apex Court in several of its decisions referred to in the case of M/s. Venus Steel Products (supra) and again in the case of Sunita Jain (supra). The order dated 11/08/2008 is a final order as far as this Court is concerned. After passing the same the Court has become functus officio. A final order cannot be recalled exercising powers u/s 482 of the Code in view of the bar created by Section 362 of the Code. Applicant''s remedy is elsewhere. There is no merit in this application. Therefore, the same is hereby dismissed.