Allahabad High Court
Arun Kumar Mishra @ Madan Mishra vs State Of U.P. Thru. Prin. Secy. ... on 25 August, 2022
Bench: Brij Raj Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 29
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 1026 of 2022
Applicant :- Arun Kumar Mishra @ Madan Mishra
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko.And Another
Counsel for Applicant :- Ambika Prasad Mishra,Ambika Prasad Mishra
Counsel for Opposite Party :- G.A.
Hon'ble Brij Raj Singh,J.
Order on IA/1/2022 (Application for Correction/Modification:
Heard Sri Ambika Prasad Mishra, learned counsel for the applicant, Sri Diwakar Singh, learned A.G.A. assisted by Sri Abhishek Kumar Singh, learned Brief Holder, for the State.
I had passed an order on 01.07.202 while entertaining the application under Section 438 Cr.P.C. and disposed of the application. Counsel for the applicant has preferred the instant application dated 22.07.2022 for correction/modification of the order dated 01.07.2022 and submits that this order may be recalled and matter may be heard on merits. The instant correction/modification application has been filed for anticipatory bail under Section 438 Cr.P.C. with a prayer to enlarge the applicant on anticipatory bail. The applicant wants to change the entire order by making averment in the application for correction/modification.
Learned A.G.A. has submitted that once the final order was passed on 01.07.2022 and the applicant himself requested for liberty to surrender before the court below, this Court may not interfere with the order dated 01.07.2022 by way of correction/modification application. He has further submitted that after deciding the case, the Court becomes functus officio and cannot alter or modify a judgment.
It is relevant to see the provision of Section 362 Cr.P.C., wherein it is provided that when the order is signed and judgment has become final same cannot be altered. Section 362 which is quoted below reads as under:
"362. Court not to alter judgment.-Save as otherwise provided by this Code or by any other law for the time being in force, 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."
Counsel for the applicant has cited a case being Parvez Ahmad Vs. State of U.P. (Criminal Misc. Anticipatory Bail Application No. - 2609 of 2020, decided on 22.05.2020) and submitted that in view of the aforesaid decided case, the correction/modification application may be allowed and final order may be modified.
After hearing both the parties, I had passed the order dated 01.07.2022 and on the request of the counsel for the applicant liberty was granted to the applicant to surrender before the court below and file bail application. Once the order has been passed on the concession requested by the counsel for the applicant, no question arises to modify/correct the order. Since the order is final, the application for correction/modification is not maintainable. The applicant wants to change the tenor of the final order which is not permissible. The order cannot be changed by way of correction/modification application.
In view of the aforesaid facts, the correction/modification application is not maintainable.
It is accordingly dismissed.
Order Date :- 25.8.2022
Arun K. Singh
(Brij Raj Singh, J.)
