C482/538/2015 of Kamal Singh Pawar AND OTHERS Vs State Of Uttarakhand AND ANOTHER

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALRecall Application No. 83 of 2018In

Criminal Misc. Application No. 538 of 2015

Kamal Singh Pawar and others …..Applicants

Versus

The State of Uttarakhand and another ....Respondents

Mr. Vinod Sharma, Advocate for the applicants. Mr. P.S. Bohra, Assistant Government Advocate for the State of Uttarakhand. Mr. Siddhartha Singh and Mr. P.S. Bisht, Advocates for respondent no. 2.

Dated: 22.10.2018

Hon’ble V.K. Bist, J.

There is delay of 281 days in filing the recall application. Cause shown is sufficient to allow the delay condonation application. Accordingly, the delay condonation application is allowed and the delay in filing the recall application is condoned.

2. Factual matrix of the case is that first information report was lodged by the respondent no. 2 being case crime no. 88 of 2013 under Section 498-A, 323 I.P.C. read with Section 3/4 of the Dowry Prohibition Act against the petitioners Kamal Singh Panwar (father-in-law), Smt. Genda Devi (mother-in-law), Chaman Singh Panwar (brother-in-law) including the husband and other relatives. The Investigation Officer submitted the charge sheet against the petitioners and others.

3. Petitioners filed petition under Section 482 of the Code of Criminal Procedure (hereinafter called “the Code”) for quashing of the criminal proceedings in

Criminal Case No. 1170/2014, ‘State Vs. Kamal Singh Panwar and others’, pending in the Court of Judicial Magistrate Rishikesh, District Dehradun for the offences punishable under Section 498-A, 323 I.P.C. and Section 3/4 of the Dowry Prohibition Act.

4. The Coordinate Bench of this Court after hearing the learned counsel for the parties presentat that point of time, by final judgment and order dated 19.06.2017 quashed the proceedings against the petitioners herein. It was observed by the learned Judge of this Court in judgment and order dated 19.06.2017 that no case is made out against the petitioners on perusal of the material available on record. Since, the counsel for respondent no. 2, who got lodged the first information report, was not present in the Court, liberty was given to the respondent no. 2, to file recall application. The order dated 19.06.2017 is extracted hereunder:

“By means of present application under Section 482 Cr.P.C. applicants seek to set aside the criminal proceeding in criminal Case No. 1170 of 2014, State vs. Kamal Singh Panwar and others, under Section 498-A, 323 IPC and ¾ Dowry Prohibition (D.P.) Act, pending in the Court of Judicial Magistrate, Rishikesh, District Dehradun.

2. Notice was issued to respondent no. 2, but none has appeared for her despite service of notice.

3. The applicants are father-in-law, mother-in-law and brother-in-law of respondent no. 2.

4. It is the submission of learned counsel for the applicants that they are living in separate house-hold. Documents have been filed in support of such contention. The marriage between respondent no. 2 and her husband (known applicant) has been dissolved by valid decree of divroce on 25.03.2013 (Annexure No. 8). F.I.R. was lodged on 16.03.2013. Divorce suit was filed on 28.08.2010.

5. It is also the submission of learned counsel for the applicants that the applicants have no concern with the offence alleged and it will amount to abuse of process of the Court in the proceedings of the aforementioned criminal case are permitted to continue against the applicants. Husband of the victim is already facing trial.

6. There seems to be substance in the contention of learned counsel for the applicants.

7. It will be futile exercise to keep present petition under Section C-482 Cr.P.C. pending in this Court.

8. The Court can intervene in exercise of jurisdiction under Section 482 Cr.P.C. to prevent the abuse of process of law, as has been held by Hon’ble Apex Court in Rajiv Thapar and others vs. Madan lal Kapoor (2013) 3 SCC 330, Amit Kapoor vs. Ramesh Chander and another, 2013 (1) SCc (Crl.) 986 and Inder Mohan Gosami and another vs. State of Uttarakhand and others, (2008) 1 SCC (Crl.) 259.

9. Learned counsel for the applicants relied upon the decision of Hon’ble Apex Court in Preeti Gupta and another vs. State of Jharkahand and another (2010) 7 SCC 667, wherein it is observed that it is matter of common experience that most of the complaitns under Section 498-A IPC are filed in the heat of the moment over trivial issues without proper deliberations. The ultimate object of justice is to find out the truth and punish the guilty and protect the innocent. To find out the truth is Herculean task in majority of these complaints. The tendency of implicating husband and all his immediate relations is also not uncommon. At times, even after the conclusion of criminal trial, it is difficult to ascertain the real truth. The courts have to be extremely careful and cautious in dealing with these complaints and must take pragmatic realities into consideration while dealing with matrimonial cases. The allegations of harassment of husband’s close relations who had been living in different cities and never visited or rarely visited the place where the complainant resided would have an entirely different complexion. The allegations of the complaint are required to be scrutinized with great care and circumspection.

10. The petition under Section 482 Cr.P.C. is, therefore, allowed. The proceedings of Criminal Case No. 1170 of 2014, State vs. Kamal Singh Panwar and others, under Section 498-A, 323 I.P.C. and 3/4 of the Dowry Prohibition (D.P.) Act, pending in the Court of Judicial Magistrate, Rishikesh, District Dehradun are hereby quashed.

11. Since present application under Section 482 Cr.P.C. is being decided in the absence of the respondent no. 2, therefore, liberty is granted to her to move for recall of this order, if she feels aggrieved with the same.

Dated: 19th June, 2017

(U.C. Dhyani, J.)”

5. On 26.04.2018, the applicant/respondent no. 2 filed Misc. Recall Application to recall the order dated 19.06.2017. Recall application has been filed on two grounds. First, liberty has been granted by the High Court to move recall application. Secondly, valuable rights of applicant/ respondent no. 2 are involved in the matter; therefore, matter should be decided after hearing respondent no. 2.

6. Counsel for the respondent no. 2/applicant would submit that since order dated 19.06.2017 had been passed in absence of respondent no. 2 and the liberty was granted to her to move recall application for recalling the order dated 19.06.2017, the recall application is maintainable.

7. Learned counsel for the respondent no. 2 would further submit that since the Criminal Misc. Application under Section 482 of the Code had been disposed of finally in absence of respondent no. 2 and respondent no.2 could not get opportunity to put up her case, therefore, the order passed on 19.06.2017 deserves to be recalled. He submits that if recall application is rejected, respondent no.2 shall suffer irreparable loss, as valuable rights of the applicant/ respondent no. 2 are involved. He submitted that order dated 19.06.2017 should be recalled

and case should be decided afresh after hearing counsel for the applicant/ respondent no. 2.

The core issues before this Court are as follows: (i) Whether this Court is empowered to recall or review its judgment or final order passed in exercise of the powers under Section 482 of the Code? (i) Whether this Court is empowered to recall or review its judgment or final order passed in exercise of the powers under Section 482 of the Code?

(ii) Whether the High Court, while deciding petition under Section 482 Cr.P.C. can grant liberty to party to file recall application? deciding petition under Section 482 Cr.P.C. can grant liberty to party to file recall application?

9. The Code of Criminal Procedure is complete Code. Section 362 of the Code provides that no Court, when it has signed its judgment or final order disposing of case, shall alter or review the same except to correct clerical or arithmetical error. Section 362 of the Code is extracted hereunder:

“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 case, shall alter or review the same except to correct clerical or arithmetical error.”

10.The Hon’ble Apex Court in the matter of Ajay Singh and another Vs. State of Chhattishgarh and another reported in (2017) 3 SCC 330, while interpreting the provisions of Section 362 of the Code has held that the Section 362 of the Code confers absolutely sanctity of the judgment once it is pronounce. It does not conceive of any kind of alteration.

11. The Hon’ble Apex Court in the matter of State Represented by DSP. SB CID, Chennai vs. K.V. Rajendran and others, (2008) 8 SCC 673, while interpreting the provisions of Sections 362 & 482 of the Code has held that the High Court does not possess the power to reopen judgment in the guise of an error or illegality in the judgment. The relevant paragraphs of the judgment supraare extracted hereunder:

“5. In our view, the High Court fell in error in reopening the issue which was finally decided and refused earlier in the exercise of power under Section 482 of the Code on petition which was filed in disposed of petition at the instance of the DSP (SB CID). Before we take up this question for our decision, it would be appropriate to narrate the facts of this case leading to the filing of this appeal in nutshell. On 26-8-1998 the Revenue Divisional Officer (in short ‘The RDO”), Mayiladuthurai received phone call regarding smuggling of sandalwood and teak wood logs. The RDO immediately made enquiries and discovered that the call was false alarm. During the enquiry it also came to light that the caller was one K.V. Rajendran, son of Vardarajan (the respondent herein). He had impersonated as reporter of Indian Express and made hoax call to the officer.

18. Keeping the principles, as laid down by the aforesaid decisions of this Court in mind, let us now look to Section 362 of the Code, which expressly provides that no court which has signed its judgment and final order disposing of case, shall alter or review the same except to correct clerical or arithmetical error save as otherwise provided by the court. At this stage, the exercise of power under Section 482 of the Code may be looked into.

25. As noted hereinearlier, Section 362 of the Code prohibits court from making alteration in judgment after the final order or judgment was signed by the court disposing of the case finally except to correct clerical or arithmetical errors. In our view, therefore, Section 362 of the Code cannot apply in the facts and circumstances of the present case. There was no clerical or arithmetical error in the order.”

12. Hon’ble Apex Court in the matter of Hari Singh Mann v. Harbhajan Singh Bajwa reported in (2001) 1 SCC

Hon’ble Apex Court in the matter of Hari Singh

169 has held that there is no provision in the Code empowering the High Court to review its final judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction and such power cannot be exercised with the aid or in exercise of the powers under Section 482 of the Code. Relevant paragraph no. 16 of the judgment is extracted hereunder:

“16. In Hari Singh Mann V. Harbhajan Singh Bajwa this Court held:

“There is no provision in the Code of Criminal Procedure authorizing the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such power cannot be exercised with the aid or under the cloak of Section 482 of the Code. Section 362 CrPC has extended the bar of review not only to judgment but also to the final orders other than the judgment. Section 362 is based on an acknowledged principal of law that once matter is finally disposed of by court, the said court in the absence of statutory provision becomes functus officio and is disentitled to entertain fresh prayer for the same relief unless the former order is set aside by court of competent jurisdiction in manner prescribed by law. The court becomes functus officio the moment the official order disposing of case is signed. Such an order cannot be altered except to the extent of correcting clerical or an arithmetical error.”

Thus, plain reading of Section 362 of the Code

makes it clear that judgment or final order passed in criminal case cannot be reviewed or altered except to correct clerical or arithmetical error. The whole purpose of Section 362 Cr.P.C. is only to correct clerical or arithmetical error. Final order passed under Section 482 Cr.P.C. can only be corrected in the process known to law; but, cannot be recalled. Therefore, it is held that High Court cannot grant permission to party to file recall application.

14. It is well settled proposition of law that the things should be done in particular manner, the same should be done in that manner alone and not otherwise. There is no provision in the Code to recall judgment or final order. Since the Code does not provide to recall judgment or final order, thus, an application to recall judgment or final order passed in criminal case is foreign to law and Code. Therefore, in view of the specific bar contained in Section 362 of the Code and the ratio of the dictum of Hon’ble Apex Court in judgments supra and the findings recorded by this Court, this Court is of the view that recall application is not maintainable to recall or review the final judgment and order dated 19.06.2017.

15. Both the issues are answered in negative.

16. In view of the above discussion, recall application filed by respondent no. 2 is not maintainable. Consequently, the recall application is dismissed as not maintainable.

Navin

(V.K. Bist, J.) 22.10.2018