Himachal Pradesh High Court
Date Of Decision: 13.11.2024 vs Sarv Sheel Mago & Others on 13 November, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
2024:HHC:11455
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.M.P. No. 4584 of 2024
Date of decision: 13.11.2024
State of H.P. ...Petitioner.
Versus
Sarv Sheel Mago & others. ...Respondents.
Coram
Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1
For the Petitioner. Mr.Varun Chandel, Additional Advocate
General.
For the Respondents: None.
Complainant Mr.Sanjay Bhardwaj present
in person.
Vivek Singh Thakur, Judge (Oral)
Notice. Mr.Varun Chandel, Learned Additional Advocate
General waives service and accepts notice on behalf of
non-applicant/appellant.
Heard.
2. This application has been filed on various grounds
enumerated therein, seeking direction to send the Criminal case for re-
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
2024:HHC:11455
trial in FIR No. 170, dated 30.10.2000, registered under Sections 307,
364, 506 and 34 of IPC in Police Station Barotiwala, District Solan, H.P..
3. After registration of FIR, challan was presented before the
Magistrate. On completion of trial, Additional Sessions Judge (Presiding
Officer, Fast Track Court) Solan in case No. 30/FT/7 of 2004/2003, titled
as State of H.P. Vs. Sarvsheel Mago & others had acquitted the accused
persons.
4. The aforesaid acquittal was assailed by State of H.P. by
preferring the appeal under Section 378 of Cr.P.C. bearing Cr. Appeal
No. 181 of 2005. The said appeal was dismissed by the Division Bench
of this High Court vide judgment dated 18.7.2012. At the time of final
hearing in the said appeal, complainant was duly represented by
Advocates.
5. Section 403 of Bharatiya Nagarik Suraksha Sanhita (earlier
Section 362 of the Code of Criminal Procedure) provides as under:-
"403. Save as otherwise provided by this Sanhita 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."
6. Though, applicant/complainant is putting reliance on
provisions of Section 386 Cr.P.C. (now Section 427 of Bharatiya Nagarik
Suraksha Sanhita) for making prayer to send the matter for re-trial,
however, as apparent from the provisions of Section 403 of Bharatiya
2024:HHC:11455
Nagarik Suraksha Sanhita (Section 362 of Cr.P.C.), after signing the
final judgment in present matter and disposing the appeal, this Court has
no power to alter or review the same, except to correct a clerical or
arithmetical error.
7. Admittedly, in present application prayer has been made to
send the matter for re-trial which, in the given facts and circumstances,
shall amount reviewing the judgment already passed by this High Court
by altering the same which is not permissible under law.
8. Applicant has also relied upon judgments passed by the
Supreme Court in Criminal Appeal No. 2388 of 2014 (arising out of
S.L.P. (Crl.) No. 8852 of 2013), decided on 11.11.2014, titled as Nar
Singh Vs. State of Haryana; Cr. Appeal Nos. 466-449 of 2004
(arising out of SLP(Crl.) Nos. 538-541 of 2004) decided on
12.4.2004, titled as Zahira Habibulla H. Sheikh and Another Vs.
State of Gujarat and others; Criminal Appeal Nos. 119-122 of 2017,
decided on 31.1.2017, titled as Ajay Kumar Ghoshal Etc. Vs. State
of Bihar & Another; and Criminal Appeal No. 1091 of 2006, decided
on 31.8.2012, titled as Mohd. Hussain @ Julfikar Ali Vs. State (Govt.
of NCT) Delhi.
9. The aforesaid judgments in given facts and circumstances
of present case are not applicable as directions in aforesaid judgments
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have been passed by the Supreme Court in appeals/petitions pending
before the Supreme Court.
10. Judgment of Madhya Pradesh High Court in CRR No.
229/2017, titled as Raja alias Sumit & others Vs. State of MP, has
also been relied upon by applicant/complainant. The Direction in the
said case has also been passed by the said High Court in a Criminal
Revision being adjudicated by the said Court, but not after passing of
final judgment.
11. Present application has been preferred under Section 528
of Bharatiya Nagarik Suraksha Sanhita (earlier Section 482 of Cr.P.C.).
It is also more settled that provisions of Section 482 Cr.P.C. (now
Section 528 of Bharatiya Nagarik Suraksha Sanhita) cannot be invoked
to render the provisions of Section 362 Cr.P.C. (Section 403 of
Bharatiya Nagarik Suraksha Sanhita) redundant. When there is specific
bar in provision of the statute i.e. Code of Criminal Procedure/Bharatiya
Nagarik Suraksha Sanhita providing mandatory prohibition and
mandatory limitation, the provisions of Section 482 Cr.P.C. (now Section
528 of Bharatiya Nagarik Suraksha Sanhita) cannot be invoked as a
device to surpass the express provision of law creating inhibition to alter
or review final judgment passed in this matter.
2024:HHC:11455
12. In any case for redressal of his grievance the
applicant/complainant is free to avail appropriate remedy including
approaching the Supreme Court as permissible under law.
The application is dismissed and pending applications also
stand disposed of in aforesaid terms.
(Vivek Singh Thakur),
Judge.
(Rakesh Kainthla),
Judge.
13th November, 2024
(Keshav)
