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Going by the Book

By setting aside a Kerala High Court order, the Supreme Court sent a reminder that under existing law, the Courts do not have the power to alter a judgment and an order once passed, except to correct a clerical or arithmetical error.

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The Supreme court has set aside a Kerala High Court order recalling its earlier judgment quashing rape and child sexual assault charges against various accused while opining that the impugned order, dated April 28, 2021, should not have been passed and the earlier order, dated April 20, 2021, has been wrongly recalled by the Kerala High Court. On November 22, while allowing an appeal against the Kerala High Court judgment, the top court said that Section 362 of the Criminal Procedure Code (CrPC), 1973, does not empower the High Court to recall the earlier order passed after contest and that too suo motu.

According to the facts of the case, an FIR was lodged by Kerala, which was challenged by the appellant by way of a petition filed before the Kerala High Court under Section 482 CrPC. By a judgment and order dated, April 20, 2021, the High Court allowed the petition and quashed the FIR. A bench presided by Justice K Haripal had initially quashed the FIR on the grounds of the marriage of the accused to the victim. Subsequently, on April 28, 2021, the High Court took up the matter suo motu and recalled the order, dated April 20, 2021. The judge recalled the order, taking note of the Supreme Court judgment in Gian Singh vs State of Punjab which held that heinous and serious offences like murder, rape and other such offences cannot “be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. The appellant then moved the top court against the order.

A Division Bench, comprising Justices Vineet Saran and Aniruddha Bose, after hearing the counsel for the parties at length noted that they do not dispute the fact that in view of Section 362 CrPC, the Court does not have the power to alter the judgment and order once passed, except to correct the clerical or arithmetical error.

“In the present case, by a judgment and order dated 20.04. 2021 FIR had been quashed by the High Court by a detailed reasoned order, which has been recalled by the order dated 28.04.2021. There is no power, except under Section 362 Cr.P.C., which only provides for correction of any clerical or arithmetical error. The same does not empower the court to recall the earlier order passed after the contest and that too suo motu”

-observed the apex court.

Section 362 of CrPC reads: “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.”

In one of its judgments in April this year, the Delhi High Court ruled that Section 362 of CrPC bars a court from altering a judgment or final order, except to correct a clerical or arithmetical error. The single judge bench of Justice Subramonium Prasad while dismissing a miscellaneous application filed to recall the order that attained finality in 2015 observed: “A reading of Section 362 CrPC shows that it bars a Court from altering a judgment or final order except to correct a clerical or arithmetical error. Section 362 CrPC itself provides the circumstances where petitions for review of orders which have attained finality can be entertained. Section 362 CrPC begins with the words: ‘Save as otherwise provided by this Code or by any other law for the time being in force’. The above expression shows that the rigour contained in Section 362 CrPC can be relaxed only when it is provided by the Code itself; or permitted by any other law for the time in force or there is a clerical or arithmetical error.”

In the case of Sanjeev Kapoor vs Chandana Kapoor (2020) 13 SCC 172, the Supreme Court while dealing with cases arising out of complaints made under Section 125 CrPC observed:

“The legislative scheme as delineated by Section 369 of the Code of Criminal Procedure, 1898, as well as legislative scheme as delineated by Section 362 of the Code of Criminal Procedure, 1973, is one and the same. The embargo put on the criminal court to alter or review its judgment is with a purpose and object. The judgments of this Court as noted above, summarised the law to the effect that criminal justice delivery system does not clothe criminal court with power to alter or review the judgment or final order disposing of the case except to correct the clerical or arithmetical error. After the judgment delivered by a criminal court or passing of the final order disposing of the case the court becomes functus officio and any mistake or glaring omission is left to be corrected only by appropriate forum in accordance with law.”

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In Sooraj Devi vs Pyare Lal, (1981) 1 SCC 500, the Supreme Court observed:

“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 vs 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.”

Section 482 enables the High Court to make such an order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers, however, as much are controlled by prin­ciple and precedent as are its express powers by statute. If a matter is covered by an express letter of law, the Court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.

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The Aurangabad bench of the Bombay High Court on November 2020, while rejecting the plea of a life term convict in the sensational Kothewadi mass rape and dacoity to convert his substantial sentences to run as concurrently instead of consecutively, ruled that Court cannot review or alter its own judgment after it has signed the same. Another bench of the Calcutta High Court in its decision in Harjeet Singh vs State of West Bengal held that in view of Section 362, CrPC, there is a clear bar for any Court, which includes the High Court, to either review or recall an order or judgment passed even if it was found subsequently that it had offended the principles of natural justice.

The purpose of Section 362 CrPC is that once a court delivers the judgment it becomes functus officio and thereafter it cannot reconsider or modify the judgment (Sunil Kumar vs State of Haryana, (2012) 5 SCC 398).

—By Shivam Sharma and India Legal News Service

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