Madhya Pradesh High Court
Kok Singh vs Rakesh Singh Rajput on 13 December, 2023
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 13 th OF DECEMBER, 2023
MISC. CRIMINAL CASE No. 21561 of 2023
BETWEEN:-
KOK SINGH S/O SHRI SUBA SINGH, AGED ABOUT 66
YEARS, R/O 151 VIJAYA NAGAR NEAR CHETAKPURI
LASHKAR, DISTRICT GWALIOR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI LALIT GUPTA - ADVOCATE)
AND
RAKESH SINGH RAJPUT S/O SHRI LAXMAN SINGH
RAJPUT, AGED ABOUT 42 YEARS, OCCUPATION:
BUSINESS R/O RAIRU FARM A B ROAD GWALIOR
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI S.S. RAWAT - ADVOCATE)
This application coming on for admission this day, the court passed the
following:
ORDER
T h e present petition, under Section 482 of the Code of Criminal
Procedure, has been filed against the order dated 28.03.2023 passed by the
Coordinate Bench of this Court in Criminal Revision No.667 of 2022 whereby,
while dismissing the revision preferred by the petitioner, the judgments passed
by the Courts below were affirmed.
2. Learned counsel for the petitioner has argued that the order impugned
needs to be recalled/modified on the ground that the said order was passed in
absence of the counsel for the petitioner, as he was out of the station on that
date and therefore could not argue the matter and the Court without
accommodating the counsel has passed the said order on merits as well as
without adverting to the controversy as to set off the alleged amount which was
deposited during pendency of the appeal.
3. It was further argued that from bare perusal of the impugned order, it
would be evident that no opportunity of hearing was extended to the petitioner
while dismissing the criminal revision on merits, therefore, in the light of
judgment passed by the Hon'ble Supreme Court in the matter of Vishnu
Agarwal vs. State of Uttar Pradesh reported in 2011 (14) SCC 813, the
present petition deserves to be allowed and the impugned order under challenge
requires to be recalled and the criminal revision be restored to its original
number and thereafter, it be heard on merits.
4. It was further argued that right of party to be heard is his valuable right
which cannot be taken away by any provision of law and even if the party to
the matter may be accused or complainant and is not given an opportunity of
being heard or is not provided to the counsel or when not duly represented, it
would be violative of principles of natural justice as well as Article 21 of the
Constitution and would act as bar for review or alter as provided under
section 362 of Cr.P.C. which is different than the power of recall under the
inherent powers provided to this Court under section 482 of Cr.P.C such type
of cases would be covered and if condition so emerged the order can be
recalled. Thus, it was submitted that the present petition be allowed and the
impugned order herein be recalled and be heard on its own merits.
5. Per contra, Counsel for the respondent submits that prayer so made
by the counsel for the petitioner is wholly misconceived as the powers for
recalling though may be different from review or alter the power as provided
under Section 362 of CrPC, it is available only when the matter is dismissed in
default or for want of prosecution or any default of the petitioner and the
reasons of the decisions have not been rendered after applying the mind to the
pleadings of the case as well as ground of the petition, but here in this case this
Court after considering the facts situation of the matter as well as after
analyzing the legal position by a detailed and speaking order had passed the
impugned order and thus in the wake of specific bar under section 362 of
Cr.P.C. that once the judgment or final order disposing of case, has been
signed by the Court it cannot be altered or reviewed in any manner except to
correct a clerical and arithmetical error and only remedy available to the
petitioner is to agitate the matter before the higher forum. Thus, the present
petition deserves to be dismissed being not maintainable.
6. Heard counsel for the parties and perused the record.
7. The impugned order has been passed after considering the merits of
the matter and Section 362 of the CrPC creates a specific bar that once the
judgment or final order disposing of case, has been signed by the Court it
cannot be altered or reviewed in any manner except to correct a clerical and
arithmetical error. 8. Section 362 of Cr.P.C which is reproduced hereinbelow
for ready reference:
'362. Court not to alter judgement - 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.'
8. Relevant extract of impugned order dated 28.03.2023 passed reads as
under:
"Having perused the records and gone through the impugned
judgments passed by learned trial Court as well as lower
appellate Court, this Court is of the considered opinion that no
illegality has been committed by the Courts below in passing the
impugned judgments.
The Apex Court in the case of Duli Chand vs. Delhi
Administration as reported in (1975) 4 SCC 649, has held
that the jurisdiction of the High Court in a criminal revision is
severely restricted and it cannot embark upon a re-appreciation
of evidence. The said judgment has been followed by the Apex
Court in the case of State of Maharashtra vs. Jagmohan Singh
Kuldip Singh Anand and others as reported in (2004) 7 SCC
Accordingly, present criminal revision stands dismissed."
9. From perusal of the impugned order, it is reflected that the entire order
is based upon the evaluation of the factual matrix as well as legal position and
therefore, according to this Court it would be hit by provisions of section 362
of Cr.P.C. It is settled law that if the matter has been considered on merits, the
same becomes final and cannot be recalled or reviewed, thus the aforesaid
judgment doesn't come to the rescue the present petitioner.
10. In light of the aforesaid discussion and in the of specific bar under
Section 362 of CrPC, this Court finds no sum and substance in the present
petition. Accordingly, it is hereby dismissed. However, remedy available to the
petitioner is to challenge the impugned order before the higher forum.
(MILIND RAMESH PHADKE)
JUDGE
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