Nanuram Saini S/O Mangal Chand ... vs State Of Rajasthan
2021 Latest Caselaw 1563 Raj/2

Citation : 2021 Latest Caselaw 1563 Raj/2
Judgement Date : 12 February, 2021

Rajasthan High Court

Nanuram Saini S/O Mangal Chand ... vs State Of Rajasthan on 12 February, 2021

Bench: Sanjeev Prakash Sharma

                                           (1 of 4)                      [CRLMA-13/2021]


       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

       S.B. Criminal Miscellaneous Application No. 13/2021

1.         Nanuram Saini S/o Mangal Chand Saini, Aged About 90
           Years, R/o Khetri Distt. Jhunjhunu (Raj)
2.         Vinod Kumar S/o Lt. Onkarmal, Aged About 61 Years, R/o
           Ward No. 9, Khetri Distt. Jhunjhunu Presently R/o D113,
           Sector-II-A, Post Khetri Nagar, Distt. Jhunjhunu (Raj)
                                                                     ----Petitioners
                                      Versus
1.         State Of Rajasthan, Through PP
2.         Vimal Kumar S/o Onkarmal, R/o Ward No. 9, Khetri Distt.
           Jhunjhunu (Raj)
                                                                   ----Respondents

For Petitioner(s)           :     Mr. Anurag Sharma
For Respondent(s)           :     Mr. Arvind Bhadu, PP

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order

12/02/2021

This is a misc. application moved on behalf of the applicant

who was holding the post of ACJM, Khetri, seeking to delete the

adverse remarks made in the order dated 9.11.2020 passed by

this court in Criminal Misc. Petition No.4317/2020.

Learned counsel appearing for the applicant submits that the

applicant had passed an order issuing non-bailable warrants after

taking cognizance on remand of the case from the High Court on a

protest petition.

Till the date of taking cognizance and issuance of warrants,

neither the investigating authority nor the final report submitted

by the police, the applicant was informed of their being

anticipatory bail granted by the High Court wayback in 2003. The

(2 of 4) [CRLMA-13/2021]

application which was moved under Section 70(2) Cr.P.C. was

rejected by the applicant relying on provisions of Section 362

Cr.P.C. which restricted court to review its own order. Learned

counsel for the petitioner submits that the view taken by the

Magistrate may be erroneous, however, it cannot be said that she

was having knowledge of grant of anticipatory bail at the time of

issuing of warrants.

Learned counsel has also taken this court to the judgment in

the case of Adalat Prasad Vs. Rooplal Jindal and Others 2004 (7)

SCC 338 to submit that the provisions of Section 362 Cr.P.C. put

an embargo on a Magistrate to recall its earlier order. Although,

learned counsel submits that under Section 70 (2) Cr.P.C, the

provision of 362 Cr.P.C. may not have any application. However he

submits that in the facts of the case the remarks made in the

order were not called forwarded need to be expunged. Since the

applicant had taken a view in terms of Section 362 Cr.P.C. alone.

The applicant petitioner had no intention to show disrespect to

High Court's order and adherence remarks may be expunged.

I have considered the submissions.

The Apex Court in the case of State of Punjab Vs. Davinder

Pal Singh Bhullar and others (2011) 14 SCC 770 has observed as

under:-

"44. There is no power of review with the criminal court after Judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362, Cr.P.C. is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error.

(3 of 4) [CRLMA-13/2021]

There is also no provision for modification of the judgment.

45. Moreover, the prohibition contained in Section 362, Cr.P.C. is absolute; after the Judgment is signed, even the High Court in exercise of its inherent power under Section

482. Cr.P.C. has no authority or jurisdiction to alter/review the same.

46. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of Court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362, Cr. P.C. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault."

As the observations are made without giving opportunity of

hearing to the applicant, the power of recall to the extent is

available with this court.

After having gone through the order passed by this court

which is sought to be recalled, as well as the order passed by the

learned Magistrate applicant, this court finds that the applicant

without having knowledge about the grant of anticipatory bail,

proceeded to decide the application under Section 70(2) Cr.P.C.

solely on basis of embargo contained under Section 362 Cr.P.C.

This court is satisfied that order of grant of anticipatory bail

passed in 2003 was not on record while passing the order of

issuing non-bailable warrants and taking cognizance on a protest