Smt. Amita Grover vs State of Goa and Another

N.A. Britto, J.—Heard Shri S. Dessai, the learned Counsel on behalf of the applicant. A simple matter is sought to be complicated. An application filed by the applicant u/s 439(2) of the Code of Criminal Procedure, 1973, to cancel the bail granted to one of the accused by order dated 16/01/2007, came to be dismissed by this Court by order dated 28/07/2008 which reads as follows:

None present on behalf of the Applicant in the morning as well as in afternoon sessions.

On 14-7-2008, final opportunity was given to the learned Counsel on behalf of the Applicant. Dismissed for default.

The applicant has now filed an application to quash and set aside the said order dated 28/07/2008 and to restore the Criminal Application No. 169/2008 to file.

In support of the application, learned Counsel on behalf of the applicant, contends that the order dated 28/07/2008 dismissing the application for cancellation of bail is an interlocutory order. He further submits that in a similar situation an order rejecting the application for bail on merits, in the absence of the applicant, was recalled by this Court in the case of Farooq Sultan Shaikh Vs. The State of Maharashtra . Learned Counsel has also brought to my notice the judgment of this Court dated 6/05/2005 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) and has tried to distinguish the same by submitting that in that case the revision petition was dismissed for default, but which amounted to dismissal of the said revision petition on merits.

In Farooq Sultan Shaikh (supra), the learned Judge relied upon a full Bench judgment of the Rajasthan High Court in the case of Habu Vs. State of Rajasthan, and thereafter came to the conclusion that;

If the Court feels and if the Court is satisfied and if the Court is convinced that it is necessary to change the judgment for achieving the ends of justice, this Court feels that there is no bar of Section 362 of the Code to do necessary exercise for achieving the ends of justice. But the Court should be fully satisfied and convinced that it is necessary to do so for the purpose of achieving the ends of justice and not otherwise and here comes the doctrine of recalling the order.

The learned Judge further observed that;

Alter or changing the judgment is totally different from recalling the judgment and order. Recalling the order comes under the full sweep of provisions of Section 482 and inherent powers of the High Court. If Court finds it that it is necessary to do so in the interest of justice, Court should not hesitate for doing it because the justice is to be done for that poor person who has been described in Habu''s case as "poor sufferer for the mistakes of others except him.

This Court in the case of M/s. Venus Steel Products (supra) observed as follows;

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.

The said finding was rendered after referring to several decisions of the Apex Court reported in Sankatha Singh Vs. State of U.P., , State of Orissa Vs. Ram Chander Agarwala and Others, and Hari Singh Mann V/s. Harbhajan Singh Bajwa & Ors. ( 2001 (1) SCC 169 ). 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 and therefore the contention that it is an interlocutory order cannot be accepted. There is nothing more to be done in the said proceedings of Criminal Application (Main) No. 169 of 2008, as far as this Court is concerned. In a subsequent judgment in the case of Sunita Jain Vs. Pawan Kumar Jain and Others, , 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.

It appears that the learned Single Judge had no occasion to consider the judgments of the Apex Court referred to in the order dated 6/05/2005 or in this order. In view of the above, this application has no merit and the same is hereby dismissed.