Delhi High Court
Rajender & Ors. vs State on 12 April, 2017
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 253/2000
% Judgment dated 12th April, 2017
RAJENDER & ORS. ..... Appellants
Through : Mr. S.D. Singh, Mr. Rahul Kumar
Singh, Ms. Surabhi Shukla, Ms. Sweta
Sinha and Ms. Vaishali Sharma,
Advocates
versus
STATE ..... Respondent
Through : Mr.Rajat Katyal, APP
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MR. JUSTICE VINOD GOEL
G.S.SISTANI, J. (ORAL)
CRL. M.A.19200/2016 (Exemption)
1. Exemption allowed, subject to all just exceptions.
2. The application stands disposed of.
CRL. M.A.19196/2016
3. This application has been filed by the applicants/appellants seeking recall
of order dated 14.01.2016 by which the judgment in the appeal was
reserved. Recall is also sought of the judgment dated 19.01.2016 by
which the appeal filed by the appellants stands dismissed.
4. Mr. S.D. Singh, learned counsel appearing for the applicants/appellants
submits that the appeal was decided by this Court without following the
law and in contravention of the settled position of law. The decision in
appeal has violated the rights of the appellants as recognized by the
Supreme Court of India and guaranteed under Articles 21 and 22 of the
Constitution of India. It is strongly urged before us that reading of the
judgment of the Division Bench would show that the counsels who had
appeared in the matter were proxy counsels and they had not even filed
their vakalatnama. However, in the order dated 14.01.2016 the Court
without any justification had stated that arguments had been heard and the
matter had been reserved for orders. Mr. Singh contends that the order
dated 14.01.2016 would establish that the advocate for the appellants was
not present and his junior associates appeared in the matter and had made
a request for an accommodation of a day while the order was not factually
correct and thus, in violation of the principles of natural justice. In these
circumstances, the learned counsel has sought recall of the orders dated
14.01.2016 and 19.01.2016 and an opportunity of hearing is sought.
5. Learned counsel has also pointed out that the appeal was shown in the
Regular List of Court No.33 as Item No.113 for the first time in the year
2013. The appeal was shown in „Part-B‟ Regular List and such matters
are heard on two days in a week, being Thursday and Friday. The counsel
submits that the appeal filed by the appellants came up for hearing before
the Court on 28.08.2015, on which date notice was issued to the appellants
for 10.09.2015. On 10.09.2015, the appellants were duly represented by
their counsel and the counsel was carefully examining the Cause List and
the matter did not reach for hearing till 11.01.2016. It is also averred that
in case the earlier practice would have been followed, the appeal would
have been taken up for hearing on Thursday and Friday. It has been
averred in this application that there was change in Roster on 12.01.2016
and thereafter, the counsel for the appellants learnt that all matters would
be taken up for hearing everyday irrespective of falling in „Part-B‟ or
„Part-A‟. It is contended that when the matter came up for hearing on
14.01.2016, the Division Bench was informed that the main counsel had
appeared on 10.09.2015. The counsels appearing for the main counsel
informed the Court that they were proxy counsels and sought an
accommodation for a day. Affidavits of the two counsels have been filed
along with this application. Learned counsel has strongly urged before the
Court that the hearing of a criminal appeal is not mere a formality, but a
substantial right in favour of the appellants. The appellants were not
granted a fair opportunity of hearing as the main counsel was not present.
The proxy counsels who appeared in the matter were not authorised to
appear as their vakalatnama was not on record and they had simply
appeared for making a request for an adjournment. Counsel contends that
in fact the appeal was decided without hearing any arguments on behalf of
the appellants.
6. It is pointed out by the learned counsel that aggrieved by the order dated
14.01.2016 by which the judgment was reserved, the appellants herein
filed an Special Leave Petition (Crl) No.734/2016 (hereinafter referred to
as the „First SLP‟) on 18.01.2016 before the Supreme Court of India
seeking an opportunity to argue before the Court. A copy of the Special
Leave Petition has also been filed along with this application. The High
Court rendered its judgment on 19.01.2016 by which the order of
conviction was upheld. Accordingly when on 05.02.2016, the SLP came
up for hearing before the Supreme Court of India and the same was
dismissed as the High Court had already passed the judgment on
19.01.2016 rendering it as infructuous. Learned counsel has contended
that the High Court did not consider the evidence on record; did not
analyse the same; did not take into account that the entire case of the
prosecution is based on circumstantial evidence; there was no eye witness
to the incident; or that the prosecution had not proved the guilt of the
appellants beyond reasonable doubt.
7. The counsel contends that thereafter the appellants filed another Special
Leave Petition (Crl) No.4911/2016 (hereinafter referred to as the „Second
SLP‟) on 11.03.2016, inter alia, challenging the final judgment of this
Court dated 19.01.2016. The Second SLP came up for hearing before the
Supreme Court of India on 25.07.2016 and was dismissed.
8. The applicants/appellants seek review and recall of the judgment passed
by the Division Bench of the High Court dated 19.01.2016. Mr. Singh,
learned counsel for the appellants submits that there would be no bar
under Section 362 of the Code of Criminal Procedure, 1973 (in short the
„Code‟) for altering the judgment and the Court should rely on Section
482 of the Code for preventing abuse of process of law and to secure the
ends of justice as the appellants were not represented at the time of
hearing before the Court. Learned counsel contends that if an advocate of
the appellant is not available, the Court should not have decided the matter
on its own and an advocate should have been provided in order to ensure
and secure the hearing and assistance from an advocate capable of arguing
the matter. Reliance is placed on the judgment in the case of Mohd.
Sukur Ali v. State of Assam, (2011) 4 SCC 729, more particularly,
paragraphs 5 to 9, which read as under:
"5. We are of the opinion that even assuming that the counsel for
the accused does not appear because of the counsel's negligence or
deliberately, even then the Court should not decide a criminal case
against the accused in the absence of his counsel since an accused
in a criminal case should not suffer for the fault of his counsel and
in such a situation the Court should appoint another counsel as
amicus curiae to defend the accused. This is because liberty of a
person is the most important feature of our Constitution. Article
21 which guarantees protection of life and personal liberty is the
most important fundamental right of the fundamental rights
guaranteed by the Constitution. Article 21 can be said to be the
'heart and soul' of the fundamental rights.
6. In our opinion, a criminal case should not be decided against
the accused in the absence of a counsel. We are fortified in the view
we are taking by a decision of the US Supreme Court in Powell Vs.
Alabama, 287 US 45 (1932), in which it was observed :-
"What, then, does a hearing include? Historically and in
practice, in our own country at least, it has always included
the right to the aid of counsel when desired and provided by
the party asserting the right. The right to be heard would be,
in many cases, of little avail if it did not comprehend the right
to be heard by counsel. Even the intelligent and educated
layman has small and sometimes no skill in the science of law.
If charged with crime, he is incapable, generally, of
determining for himself whether the indictment is good or bad.
He is unfamiliar with the rules of evidence. Left without the
aid of counsel he may be put on trial without a proper charge,
and convicted upon incompetent evidence, or evidence
irrelevant to the issue or otherwise inadmissible. He lacks both
the skill and knowledge adequately to prepare his defence,
even though he has a perfect one. He requires the guiding
hand of counsel at every step in the proceedings against him.
Without it, though he be not guilty, he faces the danger of
conviction because he does not know how to establish his
innocence. If that be true of men of intelligence, how much
more true is it of the ignorant and illiterate, or those of feeble
intellect. If in any case, civil or criminal, a State or federal
court were arbitrarily to refuse to hear a party by counsel,
employed by and appearing for him, it reasonably may not be
doubted that such a refusal would be a denial of a hearing,
and, therefore, of due process in the constitutional sense".
The above decision of the US Supreme Court was cited with
approval by this Court in A.S. Mohammed Rafi Vs. State of Tamil
Nadu & Ors., AIR 2011 Supreme Court 308, vide para 24.
7. A similar view which we are taking here was also taken by this
Court in Man Singh & Anr. Vs. State of Madhya Pradesh (2008) 9
SCC 542, and in Bapu Limbaji Kamble Vs. State of Maharashtra,
(2005) 11 SC 412.
8. In this connection we may also refer to Articles 21 and 22(1)
of the Constitution. Articles 21 and Articles 22(1) are as under:
"Article 21: Protection of life and personal liberty. - No person
shall be deprived of his life or personal liberty except according
to procedure established by law".
Article 22(1): Protection against arrest and detention in certain
cases. - (1) No person who is arrested shall be detained in
custody without being informed, as soon as may be, of the
grounds for such arrest nor shall he be denied the right to
consult, and to be defended by, a legal practitioner of his
choice."
9. In Maneka Gandhi vs. Union of India AIR 1978 SC 597, it has
been held by a Constitution Bench of this Court that the procedure
for depriving a person of his life or liberty should be fair,
reasonable and just. We are of the opinion that it is not fair or just
that a criminal case should be decided against an accused in the
absence of a counsel. It is only a lawyer who is conversant with law
who can properly defend an accused in a criminal case. Hence, in
our opinion, if a criminal case (whether a trial or appeal/revision)
is decided against an accused in the absence of a counsel, there will
be violation of Article 21 of the Constitution."
(Emphasis Supplied)
9. It is next contended that the judgment was passed by the High Court in the
absence of retained counsel which has caused serious prejudice to the
rights of the appellants and thus, rendered the impugned order to be non
est and in view thereof, the Court would be well within its right to
exercise its jurisdiction under Section 482 of the Code. Reliance is placed
on the judgment in the case of Popular Muthiah v. State, (2006) 7 SCC
296. Counsel submits that it has been clearly held in the aforesaid
judgment that irrespective of the nature of the proceedings, the jurisdiction
under Section 482 of the Code can be exercised by the Court for doing
justice to the parties. Reliance is placed on paragraphs 27, 28, 29, 30, 35
and 56, which read as under:
"27. While exercising its appellate power, the jurisdiction of the
High Court although is limited but, in our opinion, there exists a
distinction but a significant one being that the High Court can
exercise its revisional jurisdiction and/ or inherent jurisdiction not
only when an application therefor is filed but also suo motu. It is
not in dispute that suo motu power can be exercised by the High
Court while exercising its revisional jurisdiction. There may not,
therefore, be an embargo for the High Court to exercise its
extraordinary inherent jurisdiction while exercising other
jurisdictions in the matter. Keeping in view the intention of the
Parliament, while making the new law the emphasis of the
Parliament being 'a case before the court' in contradistinction from
'a person who is arrayed as an accused before it' when the High
Court is seized with the entire case although would exercise a
limited jurisdiction in terms of Section 386 of the Code of Criminal
Procedure, the same, in our considered view, cannot be held to
limit its other powers and in particular that of Section 482 of the
Code of Criminal Procedure in relation to the matter which is not
before it.
28. In certain situations, the court exercises a wider jurisdiction,
e.g., it may pass adverse remarks against an investigator or a
prosecutor or a judicial officer, although they are not before it.
Expunction of such remarks may also be directed by the High Court
at a later stage even suo motu or at the instance of the person
aggrieved.
29. The High Court while, thus, exercising its revisional or
appellate power, may exercise its inherent powers. Inherent power
of the High Court can be exercised, it is trite, both in relation to
substantive as also procedural matters.
30. In respect of the incidental or supplemental power, evidently,
the High Court can exercise its inherent jurisdiction irrespective of
the nature of the proceedings. It is not trammelled by procedural
restrictions in that:
(i) power can be exercised suo motu in the interest of justice. If
such a power is not conceded, it may even lead to injustice to an
accused.
(ii) Such a power can be exercised concurrently with the
appellate or revisional jurisdiction and no formal application is
required to be filed therefor.
(iii) It is, however, beyond any doubt that the power
under Section 482 of the Code of Criminal Procedure is not
unlimited. It can inter alia be exercised where the Code is silent
where the power of the court is not treated as exhaustive, or
there is a specific provision in the Code; or the statute does not
fall within the purview of the Code because it involves
application of a special law. It acts ex debito justitiae. It can,
thus, do real and substantial justice for which alone it exists.
...
35. It is also not in dispute that the said power overrides other
provisions of the Code but evidently cannot be exercised in
violation/ contravention of a statutory power created under any
other enactment.
...
56. So far as inherent power of the High Court is concerned,
indisputably the same is required to be exercised sparingly. The
High Court may or may not in a given situation, particularly having
regard to lapse of time, exercise its discretionary jurisdiction. For
the said purpose, it was not only required to apply its mind to the
materials on records but was also required to consider as to
whether any purpose would be served thereby."
(Emphasis Supplied)
10. Learned counsel also contends that although the appellants had filed
Special Leave Petitions against the orders dated 14.01.2016 and
19.01.2016, however, the petitions have not been decided on merits. The
First SLP was dismissed as infructuous and the Second SLP was
dismissed in limine. Reliance is placed on the judgment in the case of
Kunhayammed and Others v. State of Kerala and Another, (2000) 6
SCC 359 (paragraph 40).
11. Reliance is also placed on the judgment in the case of Hymad Pasha v.
State of Andhra Pradesh, (2015) 15 SCC 651, more particularly, para 4,
which reads as under:
"4. Two conflicting judgments thus came to be pronounced by the
High Court on the same subject-matter which fact was brought to
the notice of the High Court in Criminal Miscellaneous Petition No.
2349 of 2008 filed under Section 482 CrPC. That petition was
heard and allowed by the High Court in terms of its order dated 15-
12-2008. The High Court was of the view that the conviction of the
appellant having been affirmed in Criminal Appeal No. 502 of
2006, the later judgment acquitting the appellant in Criminal
Appeal No. 690 of 2006 could not be allowed to stand. Relying
upon the decisions of this Court in State of A.P. v. Thadi
Narayana [AIR 1962 SC 240], A.R. Antulay v. R.S. Nayak [AIR
1988 SC 1531] and Keshardeo Chamria v. Radha Kissen
Chamria [AIR 1953 SC 23] the High Court corrected the mistake
committed by it and recalled the order dated 29-8-2008 passed
in Hymad Pasha v. State of A.P.[Criminal Appeal No. 690 of 2006,
order dated 29-8-2008 (AP)] on the ground that the same was non
est and a nullity in the eye of the law and was of no effect
whatsoever. In the present appeal the appellant has assailed not
only the judgment and order passed by the High Court in Hymad
Pasha v. State of A.P. [Criminal Appeal No. 502 of 2006, order
dated 7-3-2008 (AP)] whereby his conviction and the sentence
awarded to him was affirmed but also order dated 15-12-2008
whereby the order of acquittal passed in Hymad Pasha v. State of
A.P. [Criminal Appeal No. 690 of 2006, order dated 29-8-2008
(AP)] has been recalled."
(Emphasis Supplied)
12. The present application is opposed by the learned counsel for the State. It
is submitted that the present application is not maintainable in view of the
express bar of Section 362 of the Code. This Court does not have the
power for grant of review except for a correction of a clerical nature or
arithmetical error. Counsel submits that inherent power of the Court is not
contemplated by the saving provision in Section 362 of the Code.
Reliance is placed on the judgment in the case of Smt. Sooraj Devi v.
Pyare Lal and Another, 1981 SCC (Cri) 188 (paragraphs 4-6).
13. Learned counsel submits that the judgments sought to be relied upon by
the counsel for the applicants/appellants are not applicable to the facts of
the present case, more particularly, when a Special Leave Petition filed
against the final judgment of this Court stands dismissed and all grounds
sought to be urged and have been urged before this Court were also
grounds taken in the SLP and thus, the present application would not be
maintainable. Counsel contends that in the present case, the appellants
were very much represented which is evident upon reading of the order
dated 14.01.2016 wherein appearance of both the counsels, who appeared,
has been marked. The appellants in their wisdom had filed the First SLP
on 18.01.2016 even before the judgment was rendered, but did not chose
to approach the Court by filing of either written submissions or otherwise.
The First SLP was dismissed on 05.02.2016 as the counsel had informed
the Supreme Court of India that the judgment has already been
pronounced. At that stage, it was open for the counsel for the appellants
to urge the legal issues which are sought to be urged today before this
Court, but the appellants in their own wisdom decided to forego the right
to urge the grounds which are sought to be urged today. Counsel further
contends that the matter was examined by the Supreme Court of India
when the Second SLP was filed by the appellants and the same was
dismissed and thus, it is not open for the applicants/appellants to file an
application for review which is not maintainable in law and the appellants
cannot be allowed to urge the same very grounds which stand rejected by
the Supreme Court of India. Counsel for the State has relied upon the
judgment in the case of Surya Baksh Singh v. State of Uttar Pradesh,
(2014) 14 SCC 222, wherein the Supreme Court has culled out the issues
available to the High Court while dealing with the appeals where a convict
fails to prosecute the appeal after grant of bail. Reliance is placed on para
24 of the judgment, which reads as under:
"24. It seems to us that it is necessary for the appellate court which
is confronted with the absence of the convict as well as his counsel,
to immediately proceed against the persons who stood surety at the
time when the convict was granted bail, as this may lead to his
discovery and production in court. If even this exercise fails to
locate and bring forth the convict, the appellate court is empowered
to dismiss the appeal. We fully and respectfully concur with the
recent elucidation of the law, profound yet perspicuous, in K.S.
Panduranga v. State of Karnataka (2013) 3 SCC 721. After a
comprehensive analysis of previous decisions our learned Brother
had distilled the legal position into six propositions:
"19.1. that the High Court cannot dismiss an appeal for non-
prosecution simpliciter without examining the merits;
19.2. that the Court is not bound to adjourn the matter if both the
appellant or his counsel/lawyer are absent;
19.3. that the court may, as a matter of prudence or indulgence,
adjourn the matter but it is not bound to do so;
19.4. that it can dispose of the appeal after perusing the record
and judgment of the trial court.
19.5. that if the accused is in jail and cannot, on his own, come to
court, it would be advisable to adjourn the case and fix another
date to facilitate the appearance of the appellant-accused if his
lawyer is not present, and if the lawyer is absent and the court
deems it appropriate to appoint a lawyer at the State expense to
assist it, nothing in law would preclude the court from doing so;
and
19.6. that if the case is decided on merits in the absence of the
appellant, the higher court can remedy the situation."
(Emphasis Supplied)
14. We have heard the learned counsel for the parties and given a thoughtful
consideration to the matter.
15. Two questions arise for our consideration:
(i) Whether the filing and the dismissal of the SLPs in limine by the
Apex Court has any bearing on the present application?
(ii) Whether the present application is maintainable in view of the bar
under Section 362 of the Code?
16. In respect of the first question, we may note that after this Court had
reserved the matter for judgment on 14.01.2016, the applicants/appellants
had immediately approached the Supreme Court by filing the first SLP.
This SLP was dismissed as infructuous on 05.02.2016 as the judgment had
already been pronounced by this Court on 19.01.2016. The applicants
then filed the second SLP before the Supreme Court. This SLP was
dismissed in limine prior to leave being granted on 25.07.2016. The order
dated 25.07.2016 reads as under:
" Heard.
No ground for interference is made out to exercise our
jurisdiction under Article 136 of the Constitution of India.
The special leave petition is dismissed accordingly.
Pending application(s), if any, stand disposed of."
17. From a perusal of the order of the Apex Court, it is clear that the SLP has
been dismissed at the leave stage only in limine. In Kunhayammed
(Supra) it has been held that if a SLP is dismissed at the stage of granting
leave no merger will take place and the original order of the inferior court
or tribunal remains intact and susceptible to review, if otherwise allowed.
While dismissing the SLP, what the Apex Court adjudicated was that the
present case is not a fit case for granting leave under Article 136. The
relevant paragraphs read as under:
"34. The doctrine of merger and the right of review are concepts
which are closely interlinked. If the judgment of the High Court has
come up to this Court by way of a special leave, and special leave is
granted and the appeal is disposed of with or without reasons, by
affirmance or otherwise, the judgment of the High Court merges
with that of this Court. In that event, it is not permissible to move
the High Court by review because the judgment of the High Court
has merged with the judgment of this Court. But where the special
leave petition is dismissed -- there being no merger, the aggrieved
party is not deprived of any statutory right of review, if it was
available and he can pursue it. It may be that the review court may
interfere, or it may not interfere depending upon the law and
principles applicable to interference in the review. But the High
Court, if it exercises a power of review or deals with a review
application on merits -- in a case where the High Court's order had
not merged with an order passed by this Court after grant of
special leave -- the High Court could not, in law, be said to be
wrong in exercising statutory jurisdiction or power vested in it.
...
40. A petition seeking grant of special leave to appeal may be
rejected for several reasons. For example, it may be rejected (i) as
barred by time, or (ii) being a defective presentation, (iii) the
petitioner having no locus standi to file the petition,(iv) the conduct
of the petitioner disentitling him to any indulgence by the Court, (v)
the question raised by the petitioner for consideration by this Court
being not fit for consideration or deserving being dealt with by the
apex court of the country and so on. The expression often employed
by this Court while disposing of such petitions are - heard and
dismissed, dismissed, dismissed as barred by time and so on. May
be that at the admission stage itself the opposite party appears on
caveat or on notice and offers contest to the maintainability of the
petition. The Court may apply its mind to the merit worthiness of
the petitioners prayer seeking leave to file an appeal and having
formed an opinion may say dismissed on merits. Such an order may
be passed even ex-parte, that is, in the absence of the opposite
party. In any case, the dismissal would remain a dismissal by a
non-speaking order where no reasons have been assigned and no
law has been declared by the Supreme Court. The dismissal is not
of the appeal but of the special leave petition. Even if the merits
have been gone into, they are the merits of the special leave petition
only. In our opinion neither doctrine of merger nor Article 141 of
the Constitution is attracted to such an order. Grounds entitling
exercise of review jurisdiction conferred by Order 47 Rule 1 of the
C.P.C. or any other statutory provision or allowing review of an
order passed in exercise of writ or supervisory jurisdiction of the
High Court (where also the principles underlying or emerging from
Order 47 Rule 1 of the C.P.C. act as guidelines) are not necessarily
the same on which this court exercises discretion to grant or not to
grant special leave to appeal while disposing of a petition for the
purpose. Mere rejection of special leave petition does not take away
the jurisdiction of the court, tribunal or forum whose order forms
the subject matter of petition for special leave to review its own
order if grounds for exercise of review jurisdiction are shown to
exist. Where the order rejecting an SLP is a speaking order, that is,
where reasons have been assigned by this Court for rejecting the
petition for special leave and are stated in the order still the order
remains the one rejecting prayer for the grant of leave to appeal.
The petitioner has been turned away at the threshold without
having been allowed to enter in the appellate jurisdiction of this
Court. Here also the doctrine of merger would not apply. But the
law stated or declared by this Court in its order shall attract
applicability of Article 141 of the Constitution. The reasons
assigned by this Court in its order expressing its adjudication
(expressly or by necessary implication) on point of fact or law shall
take away the jurisdiction of any other court, tribunal or authority
to express any opinion in conflict with or in departure from the
view taken by this Court because permitting to do so would be
subversive of judicial discipline and an affront to the order of this
Court. However this would be so not by reference to the doctrine of
merger.
...
44. To sum up, our conclusions are:
...
(iv) An order refusing special leave to appeal may be a non-
speaking order or a speaking one. In either case it does not attract
the doctrine of merger. An order refusing special leave to appeal
does not stand substituted in place of the order under challenge. All
that it means is that the Court was not inclined to exercise its
discretion so as to allow the appeal being filed."
(Emphasis Supplied)
18. From the aforegoing, it is clear that the filing and the dismissal of the SLP
by the Apex Court cannot amount to merger of the judgment dated
19.01.2016. The judgment remains intact and can be reviewed by this
Court, if the power so exists. Thus, the dismissal of the SLP cannot
preclude the present application as the Supreme Court has merely held
that there are no grounds to allow the leave and hear the appeal. At the
same time, the judgment does not enable the applicant to seek review
where it is precluded otherwise. For this, the second question framed by
us gains significance.
19. The present application has been filed under Section 482 of the Code
seeking, in effect, the review and recall of the order dated 14.01.2016 and
the judgment dated 19.01.2016. Learned counsel for the respondent has
objected to the maintainability of the application in view of Section 362 of
the Code.
20. We proceed to analyse the scope of Section 362 and its relation with
Section 482 of the Code. Section 362 of the Code 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."
(Emphasis Supplied)
21. The law with regard to inherent powers saved under S.482 vis-à-vis S.362
is well-settled.
22. In State of Orissa v. Ram Chander Agarwal, (1979) 2 SCC 305: AIR
1979 SC 87 (in the context of Code of Criminal Procedure, 1898) the
High Court had reviewed and recalled its previous judgment enhancing
the punishment qua few of the convicts. This was challenged before the
Supreme Court. The Apex Court considering the operation of Sections
369 (S.362 under the new Code) and S.561-A (S.482 of the New Code)
observed that the inherent powers could not be exercised in a manner to
defeat the express provisions of the Code. Thus, it "cannot be invoked for
enabling the court to review its own order which is specifically prohibited
by Section 369 by providing that, no court when it has signed its
judgment, shall alter or review the same except to correct a clerical
error."
23. In the background of the new Code, 1973, a Division Bench of the Apex
Court in Smt.Sooraj Devi v. Pyare Lal and Another, (1981) 1 SCC 500,
had once again stated that the S.482 cannot be used to by-pass the express
prohibition of Section 362 of the Code. The relevant portion reads as
under:
"5. The appellant points out that he invoked the inherent power of
the High Court saved by Section 482 of the Code and that
notwithstanding the prohibition imposed by Section 362 the High
Court had power to grant relief. Now it is well settled that the
inherent power of the court cannot be exercised for doing that
which is specifically prohibited by the Code (Sankatha
Singh v. State of U.P. [AIR 1962 SC 1208 : 1962 Supp 2 SCR 817 :
(1962) 2 Cri LJ 288] ). It is true that the prohibition in Section 362
against the court altering or reviewing its judgment is subject to
what is "otherwise provided by this Court or by any other law for
the time being in force". Those words, however, refer to those
provisions only where the court has been expressly authorised by
the Code or other law to alter or review its judgment. The inherent
power of the court is not contemplated by the saving provision
contained in Section 362 and, therefore, the attempt to invoke that
power can be of no avail.
6. The High Court, in our opinion, is right in declining to entertain
the application. The appeal must be dismissed. But we may observe
that anything said by the High Court in the criminal proceeding
against Kailash Chandra Jain should not be allowed to influence
the judgment of the court in the civil suits mentioned above or in
any proceeding arising therefrom."
(Emphasis Supplied)
24. The judgment has been followed in Mostt. Simrikhia v. Smt. Dolley
Mukherjee @ Smt. Chhabimukherjee, AIR 1990 SC 1605: (1990) 2
SCC 437 (paragraph 7).
25. In Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169
(paragraph 8-10) it was held by the Supreme Court that the High Court
has no jurisdiction to alter or review its own judgment or order except to
the extent of correcting any clerical or arithmetical error and the practice
of filing criminal miscellaneous petitions after disposal of main case and
issuance of fresh directions in such petition amounts to abuse of process of
the Court as once a matter is finally disposed of, the Court in the absence
of a specific statutory provision becomes functus officio in respect of that
matter.
26. Thus, it is clear that the inherent powers recognised under Section 482
cannot be used to override the express bar contained in Section 362 of the
Code. Even the judgment in Popular Muthiah (Supra), it has been
recognised that the power under Section 482 cannot be exercised when
"there is a specific provision in the Code" [paragraph 30 (iii)].
27. The reliance placed upon the judgment in Hymad Pasha (Supra) by the
appellant is misplaced. The High Court of Andhra Pradesh had, while
dealing with two separate appeals from the same order, dismissed the
appeal on one occasion and oblivious to the previous order, had allowed
the appeal from the very same order. Upon being appraised of this
anomaly, the High Court exercised its power of review and recalled the
subsequent order allowing the appeal. This was held to be correct
inasmuch as the subsequent order was anyways a nullity. That being so,
neither the scope of S.482 was discussed nor the bar of Section 362 of the
Code. It is settled law that it is not possible to impute an intent to render a
decision on a point which was not before them and which they never
intended to deal with. Thus, the judgment cannot be said to be laying any
general principle of law that High Court can exercise its power under
S.482 of the Code to review its orders. [See Commissioner of Income
Tax v. K. Ramakrishnan, ILR 1993 (2) Ker 188; and Dr. Nalini
Mahajan & Ors. v. Director of Income Tax (Inv.) and Ors., (2002) 98
DLT 525 (DB)]
28. We proceed to analyse the facts of the present case. Admittedly, a notice
was issued to the applicants/appellants on 28.08.2015 and were duly
represented on 10.09.2015. Thereafter, the roster of this Court changed on
12.01.2016 and as per the new roster, criminal appeals from the years
1999 to 2003 were to be heard by DB-III. Further, the distinction between
„Part-A‟ and „Part-B‟ of the Regular List was done away with. Though
the learned counsel for the applicants has argued that confusion arose
owing to the removal of classification in Regular List; that does not seem
to be the case. In the application itself, it has been said that on
12.01.2016, the appellants had learnt that the matters shall be taken up
everyday.
29. We have checked the listing of the matter from the records of this Court.
After the change in roster, the matter was listed as Item No.5 in the
Regular List on 12.01.2016. It has been contended in the application that
on 13.01.2016, a proxy counsel remained in Court all day and was
informed that the Court had discharged all matters for one day (paragraph
14). The actual grievance of the applicants is against this information
from an unknown source to an unknown proxy counsel for the applicants.
If that were true, there was no reason to justify the presence of the proxy
counsel on 14.01.2016. Further by 14.01.2016, the matter had moved up
in the list to effective Item No. 2 as the Bench had disposed of Item Nos.
1, 2 and 3 of the Regular List. The relevant portion of the Cause List for
14.01.2016 is reproduced:
30. Thus, it was clear to any prudent counsel that the list was moving as three
matters had been disposed of in the first two days of the new Roster. Even
then the counsel for the applicant claims that there was any confusion as
to whether the matter would be taken up.
31. Thereafter, the matter was taken up for hearing on 14.01.2016, where the
appearance of the counsels for both the parties had been marked. The
counsel for the appellant had argued the matter before the Bench; their
submissions have been recorded in paragraph 7 in the judgment dated
19.01.2016.
32. We may also add that when the judgment was reserved on 14.01.2016, the
learned counsel for the applicant could have mentioned the matter before
the same Bench or could have even filed written submissions penning
down his arguments. However, learned counsel chose to approach the
Apex Court in SLP, which could have been drafted by 16.01.2016, i.e.
within 2 days; but not the written submissions. Even on the day of the
pronouncement, the same could be mentioned as the judgment had not
been signed and sealed. It was not done. [See Kushalbhai Ratanbhai
Rohit v. State of Gujarat, (2014) 9 SCC 124].
33. In the present case, the appellants were represented in Court and ample
opportunity was available to the appellants/applicants to approach the
Bench while the judgment was reserved.
34. To conclude, we find as under:
(i) ample notice was given to the appellants;
(ii) the appellants were represented on 14.01.2016 and the counsel had
led arguments before this Court;
(iii) Prior to the pronouncement of the judgment or even on the day of
pronouncement, no written submissions were filed;
(iv) The judgment of the Division Bench dated 19.01.2016 was
challenged by filing SLP (Crl.) No.4911/2016 which was
dismissed; and
(v) No review of the judgment dated 19.01.2016 is maintainable.
35. In view of the aforegoing, we find that the present application is nothing
but an attempt to re-agitate the matter. To use our inherent powers in
such manner will be an abuse of the process of this Court in itself and
thus, run counter to the intent of Section 482 of the Code.
36. Accordingly, Crl. M.A. 19196/2016 is dismissed.
G.S.SISTANI, J.
VINOD GOEL, J.
APRIL 12, 2017
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