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Har Bilas v. Ram Niwas Bansal And Another

Allahabad High Court

Dec 5, 1983

Judgment

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Structured Summary of the Opinion

Factual and Procedural Background

Three Criminal Miscellaneous Applications under Section 482, Criminal Procedure Code (Cr.P.C.) were the subject of this opinion:

Criminal Misc. Application No. 3082 of 1982 (s.482, Cr.P.C.) — dismissed on 7.11.1983.
Criminal Misc. Application No. 8686 of 1983 (s.482, Cr.P.C.) — dismissed on 19.10.1983.
Criminal Misc. Application No. 6308 of 1982 (s.482, Cr.P.C.) — dismissed summarily before admission on 19.10.1983.

Applications were thereafter preferred seeking recall of the orders of dismissal in all three cases. Sri Tejpal Singh appeared and argued in two of the cases; Sri Devendra Swarup appeared in No. 8686 of 1983, adopting Sri Tejpal's arguments and making an additional submission.

Short facts regarding the subject-matter of each application as stated in the opinion:

No. 8686 of 1983: An application for quashing criminal proceedings in a police chalan case under certain sections — at admission stage and part heard. The Court observed a prima facie case was disclosed and rejected the application.
No. 3082 of 1982: Application sought direction to respondent No.1 to deposit truck No. U.P.H. 7654 in custody of CJM Agra. The High Court had earlier, in revision (order dated 3.8.1982, Annexure F), directed release of the vehicle to the applicant (Ram Niwas Bansal). There was a dispute over which vehicle number was the subject of release. This Court perused the record and dismissed the petition on merits in the absence of the applicant's counsel.
No. 6308 of 1982: At admission stage; prayed for quashing of charge-sheet, summoning order and framing of charge in a police case. The Court perused materials including lower court record and summarily rejected the application under s.482, Cr.P.C.

The opinion emphasises that none of the three applications were dismissed for want of steps or for default; each was disposed on merits (either after hearing or at admission/summary stage).

Legal Issues Presented

Whether Section 362, Cr.P.C. (prohibiting alteration or review of a signed judgment except to correct clerical or arithmetical errors) applies to High Courts as well as other Courts.
Whether the High Court may alter or review its own signed judgment or final order (including orders in proceedings under Section 482, Cr.P.C.) in the absence of an express statutory provision permitting such alteration.
Whether the inherent powers of the High Court (and the power under Section 482, Cr.P.C.) enable the Court to review or recall a final signed judgment notwithstanding the bar in Section 362.
Whether dismissal of applications under Section 482 in the absence of counsel — where counsel had notice of the cause list — renders the orders invalid for want of reasons or denial of opportunity to be heard.
Whether, in the context of applications under Section 482, a prima facie case having been found to exist, the High Court should refrain from exercising inherent jurisdiction to quash proceedings.

Arguments of the Parties

Arguments advanced by the Applicants' Counsel (Sri Tejpal Singh and Sri Devendra Swarup)

It was urged that Section 362, Cr.P.C. does not apply to judgments and orders of the High Court (i.e., the Section should not be read as a bar on the High Court's power to alter its judgments).
The inherent powers of the Court, derived from the Constitution, were argued to exist independently of Section 482, Cr.P.C., and thus such inherent powers would not be governed by procedural bars in the Code.
An argument was made that a judgment which does not assign reasons is a nullity; Sri Tejpal conceded that at admission stage reasons may not be necessary but contended that in hearing cases reasons must be given and counsel must be heard if dismissal is accompanied by reasons (otherwise it is a denial of justice).
Sri Devendra Swarup adopted the arguments made by Sri Tejpal in the relevant case and made one additional submission (the opinion records adoption plus an extra submission but states no further detail beyond this).

The opinion does not set out any detailed opposing arguments by the respondents or their counsel in the text provided.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Naresh v. State of U.P. (1981 CriLJ 1044)	Once an order or judgment has been signed the Court cannot alter it except to correct a clerical or arithmetical error; no power of review exists. This was held to be in contravention of Section 362 when altered.	Read as a complete answer to the applicants' contention and relied upon as authority that Section 362 applies to High Courts; used to hold that alteration of a judgment by the High Court contravened Section 362.
State of Orissa v. Ram Chander (1979 CriLJ 33)	Although earlier versions excluded High Courts from the operation of a provision, it was held that High Courts had no implied power to alter or review their own judgments; the redrafted provision shows that alteration is permissible only where some provision allows it.	Cited to support the proposition that alteration or review by a High Court is permissible only where provision is made in the Code or by other law; thus, absence of such provision precludes alteration.
Madhu Limaye v. State of Maharashtra	In certain situations Section 397 (revision) may not stand as a bar to jurisdiction under Section 482, Cr.P.C., which is wider.	The court observed that this ruling does not assist the applicants on the question of review/alteration of judgments where Section 362 contains a complete bar except where otherwise permitted.
Delhi Municipality v. Ram Kishan	Authority that if a prima facie case exists, inherent jurisdiction will not be exercised to interfere in proceedings.	Relied upon to support the Court's conclusion that where prima facie case exists the Court should ordinarily not interfere, validating summary rejection in one of the applications.
Khacheru Singh v. State of U.P. (AIR 1982 SC 784 : 1982 CriLJ 629)	Where any charge is framed a superior Court should not interfere.	Used to justify the Court's approach in the application challenging framing of charge — sufficed to observe prima facie case disclosed and reject the application.
Ratilal Bhanji Mithani v. Asstt. Collector Of Customs, Bombay (AIR 1967 SC 1639)	Inherent powers of High Court are preserved by Section 561-A (corresponding to present Section 482) and are vested by 'law' within the meaning of Article 21; High Courts have wide inherent powers under Section 482.	Cited to acknowledge the wide reach of Section 482, but the Court observed that such inherent powers do not permit alteration of a signed judgment in contravention of Section 362 where no provision allows review.
Raj Kapoor v. State (Delhi Administration)	Revisional powers do not bar the exercise of inherent powers; an application under Section 482 cannot be rejected merely because revision lies.	Noted as authority for the principle that inherent jurisdiction under Section 482 survives the existence of revision; but not relied on to permit recall of a signed judgment in face of Section 362.
Chandra Deo Singh v. Prokash Chandra Bose	Absence of reasons may make an order a nullity; reasons should be given so that appellate/revisional remedy may be available.	The Court distinguished the facts: in the present matters it was sufficient to state that prima facie case exists or that materials do not call for interference; summary rejections at admission stage were appropriately brief.
Krishna Singh v. Mathura Ahir	Related to an order of a Civil Judge being without jurisdiction; observations were made in that specific context.	Distinguished as being on a different point and not applicable to the recall applications before this Court.
Nawabkhan Abbaskhan v. State Of Gujarat	An externment order under Section 56, Bombay Police Act was invalid where opportunity to tender explanation under Section 59 was not given; such invalidity precluded prosecution for disobedience.	Distinguished: in the present matters the applicants had opportunity and the cases were listed with counsel names; non-appearance did not render orders invalid.
Mohammad Mian v. State of U.P. (1981 All Cri R 292)	Case disposed of when counsel had sent an illness slip (which could not be filed due to inadvertence) and disposal without hearing led to recall and restoration.	Distinguished on facts: no illness slip or mention was made in the present matters; counsel had notice and the list was revised, so the Court proceeded and exercised its mind before dismissing.

Court's Reasoning and Analysis

The Court's reasoning proceeds in a series of connected legal determinations, grounded on statutory interpretation and precedent as recorded in the opinion:

The Court first establishes the factual procedural premise: all three applications were disposed on their merits (either after hearing or by summary rejection at admission stage) and not dismissed for default or want of steps. The counsel for applicants had notice because their names appeared in the cause list which had been revised.
The Court then relies on the Supreme Court pronouncement in Naresh v. State of U.P. for the proposition that a Court cannot alter a judgment once it has been signed except to correct clerical or arithmetical errors; thus, effectively, no power of review exists against a signed judgment except as allowed by law. The Court quotes the text of Section 362, Cr.P.C. to show the statutory bar.
Addressing the argument that Section 362 does not apply to High Courts, the Court observes that the Naresh pronouncement expressly treated alteration of a High Court judgment as contravening Section 362. The Court reads the statutory language ("the Court") and the Naresh authority as indicating that Section 362 applies to High Courts as well as other Courts.
The Court rejects the submission that inherent powers deriving from the Constitution permit a High Court to review or alter a final signed judgment in defiance of Section 362. While acknowledging that inherent powers exist (and are preserved in Section 482), the Court states that Section 362's bar applies to judgments in proceedings even under Section 482 unless some other provision permits alteration. The Court emphasises that one cannot import exceptions into Section 362 which are not present in the statutory text.
On the question whether reasons must always be given and whether dismissal in absence of counsel is necessarily a denial of justice, the Court distinguishes the procedural contexts: at admission or summary rejection stages the Court may be brief and need not assign extended reasons; where a case is at hearing the Court should exercise caution. The Court considered authorities that require non-interference where a prima facie case exists and accordingly held it was sufficient in the respective cases to say either a prima facie case was disclosed (No. 8686) or that the record had been perused and the petition had no force (No. 3082 and No. 6308).
The Court considered a number of precedents relied upon by the applicants and addressed each in context: some rulings were distinguished on facts, some supported narrow propositions (e.g., wide inherent powers), and some were found not to permit the conclusion that a signed judgment can be altered in the absence of an express statutory authorisation. The Court repeatedly returns to the central statutory bar in Section 362 as decisive.
Finally, because Section 362 constitutes a complete bar to alteration of a signed judgment (unless another provision permits alteration), and because no other provision permitting review or recall of these particular signed orders existed, the Court concluded that the applications for recall could not succeed.

Holding and Implications

Holding:

All three applications for recall of the orders dismissing Criminal Misc. Applications No. 3082 of 1982, No. 8686 of 1983 and No. 6308 of 1982 are dismissed.

Implications:

Direct effect on the parties: The recall applications are refused and the original dismissals stand; the applicants remain without the relief sought to reopen those orders.
On the central legal point, the Court treats Section 362, Cr.P.C. as a substantive bar on alteration or review of a signed judgment by High Courts as well as other Courts, except to correct clerical or arithmetical errors or where another provision expressly permits alteration. The opinion relies on Supreme Court authority to this effect.
The Court clarifies that the existence of inherent powers under Section 482 (or under constitutional law) does not automatically permit recalling or altering a signed judgment where Section 362 operates as a bar; any exception must be grounded in some statutory or other lawful provision permitting alteration.
The opinion does not set out to create a novel precedent beyond applying established authorities; it applies existing case law and statutory text to refuse recall in the specific factual matrix before the Court.

No additional factual findings, arguments or precedents have been added beyond those expressly contained in the provided opinion text.

Show all summary ...

1. Criminal Misc. Application No. 3082 of 1982 under Section 482, Criminal P.C., was dismissed on 7.11.1983 Criminal Misc. Application No. 8686 of 1983 under Section 482. Criminal P.C., was dismissed on 19.10.1983 and Criminal Misc. Application No. 6308 of 1982 under Section 482, Cr.P.C., was dismissed summarily before admission on 19.10.1983. In all the three cases applications have been preferred for recall of the order of dismissal.

2. Sri Tejpal Singh appearing in two cases argued the applications for recall, and Sri Devendra Swarup appearing in case No. 8686 adopting that argument made one more submission. All the aforesaid three cases were dismissed after revising the list as is the practice in this Court. Parties' counsel had notice because they all were shown in the cause list of the respective dates with the names of counsel concerned. Criminal Misc. Application No. 8686 of 1983 was for quashing the Criminal proceedings in a. police chalan case under certain sections. The Court observed that a prima facie case is disclosed hence the application is rejected. That case was at admission stage and was a part heard case. Criminal Misc. Application No. 3082 of 1982 was listed for hearing. It was for directing respondent No. 1 to deposit the truck No. U.P.H. 7654 in the custody of CJM Agra. By order dated 3.8.1982 in revision (Annexure F) the High Court held that instead of permitting the vehicle lying idle it should be allowed to be operated; may be by the applicant in that case and directed that the vehicle be released in favour of the applicant in that case, namely, Ram Niwas Bansal, opposite party. The applicant maintained that after the judgment of the Court the opposite party applied for release of truck No. USA 2135 and not UPH 7654. It is clear that only one vehicle was in dispute and the direction of the High Court in revision was for release of that vehicle to the applicant of that case. This Court disposing of the matter on merits in absence of the applicant's counsel held that the record has been perused and the petition is dismissed as it has no force. In the third case, Criminal Misc. Application No. 6308 of 1982, which was also at the stage of admission, the prayer was that the charge-sheet, summoning order and the framing of the charge in the Police case all be quashed and this Court observed that 'perused the materials on record including that of the lower Court and the application under Section 482, Cr.P.C., has no force and it is rejected summarily. I have referred to all this to indicate that none of these three applications were dismissed in default for want of any steps, etc., and they were all dismissed on merits, otherwise also when the application purported to be under Section 482, Cr.P.C. Unless the steps were not completed or such things the Court had to consider the applications even in absence of the parties as to pass orders for admission or summary rejection in cases of admission, and to pass orders allowing or rejecting the application in case of hearing case.

3. There is a pronouncement of the Supreme Court in the case of Naresh v. State of U.P. that once an order or judgment has been signed the Court cannot alter it except for clerical error, etc., and any power of review does not exist. I may quote the relevant observations made in that case (para 2):

The High Court was wholly wrong in altering the judgment pronounced by them disposing of the criminal appeals, That was clearly in contravention of the provisions of Section 362, Cr.P.C.

Section 362, Cr.P.C., runs as follows:

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 is signed its judgment of final order disposing of a case shall alter, or review the same except to correct a clerical or arithmetical error.

4. It is urged that this section does not apply to judgment and orders of the High Court. For that the aforesaid observations of the Supreme Court in the case of Naresh 1981 CriLJ 1044 (supra) which I have quoted is a complete answer. The Supreme Court has in that case observed that the alteration of the judgment by the High Court was clearly in contravention of the provisions of Section 362, Cr.P.C. This in itself implies that in view of the Supreme Court in the aforesaid latest pronouncement Section 362 of the present Cr.P.C. applies to all Courts including High Court. The language of the section using the expression 'the Court' also indicates that. It was argued that the observations were made in the content that the High Court stated that there was a clerical mistake in the operative part of the judgment while in view of the Supreme Court this observation was incorrect. The crux of the matter is not that but the crux is whether Section 362 of the new Cr.P.C. applies to High Court's orders and judgment also or not and so far as that aspect is concerned the aforesaid pronouncement is expressly an authority that this provision is attracted in case of orders and the judgments of the High Court as well as otherwise why should the Supreme Court expressly observe that the High Courts orders altering the judgment contravenes the provision of Section 362, Cr.P.C.

5. It was next urged that Section 362, Cr.P.C., may apply only partly and not in an unqualified manner. One cannot add to the language of the section. It does not say that qua High Court's orders and judgment the bar applies only partly and not wholly. It was urged that the inherent powers are derived from the rights conferred under the Constitution itself and so such powers would not be governed by any procedural law. It would not admit of any doubt that inherent powers of the Court exist even independently of Section 482, Cr.P.C. in view of the Constitution itself but the question is whether a judgment or final order passed even in that proceeding can be reviewed and so far as that aspect is concerned, the bar under Section 362, Cr.P.C., would apply to such judgment and orders also because a judgment in proceeding under Section 482, Cr.P.C. and the Court cannot import any exceptions in that section which are not there. It was further urged that a judgment which does not assign reasons will be a nullity. Sri Tejpal urged that while he may concede that in case of summary rejection at the stage of admission the Court may not assign reasons, in hearing cases it has to do so. Sri Devendra Swarup on the other hand urged that the Court can dismiss the case assigning reasons but once reasons are assigned and dismissal is made behind the back of the party it will be a denial of justice and the counsel must necessarily be heard. Reliance has been placed upon a number of pronouncements which I may consider one by one. Reliance was placed upon the case of State of Orissa v. Ram Chander . This ruling in no way helps the present applicants. It was observed that corresponding Section 369 as enacted in 1898, while laying down the bar to alter or review the judgments made exception in the case of High Court employing the language 'no court, other than a High Court. The observations made in this case in para 8 is that despite the express exclusion of the High Courts from the operation of this provision, it was held that High Court had no implied powers to alter or review their own judgments whether under Section 369 or Section 439 of the then Cr.P.C. or otherwise. Section was redrafted because as stated in the very ruling there were certain provisions in the code and clause 26 of the Letters Patent of the High Courts empowering High Courts to revise their judgments. The redrafted section reads as follows:

Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court, by the Letters Patent, or other instrument constituting such High Court, no Court when it has signed its judgment shall alter or review the same, except to correct a clerical error.

It would be found from redrafted section that the only saving is as otherwise provided by this Code or by any other law for the time being in force or in the case of the High Court by the Letters Patent or other instrument. This itself again is made clear that there should be some power to revise or review in the judgment and order under the provisions of the Code or otherwise provided for and only then alteration could be made and not otherwise. While dealing with the present section in para 11 it was observed that an alteration or review by High Court would be permissible as in the case of other Courts, where provision therefor is made in this Code or by any other law for the time being in force. Thus there must be some provision under which a review or alteration has been made permissible and in absence of that according to this authority also no review or alteration is permissible. The next case relied upon is of Madhu Limaye v. State Of Maharashtra. . What has been held in that case is that in certain situations Section 397 of the Criminal P.C. relating to revision may not stand as a bar to jurisdiction under Section 482, Cr.P.C., which is wider. I fail to appreciate how this ruling can help in the matter of review or alteration of judgment when Section 362, Cr.P.C., contains a complete bar except where otherwise it is permissible under any provision and when that is the view taken in the case of Naresh 1981 CriLJ 1044 (supra) as well as in the case of State of Orissa 1979 CriLJ 33 (supra), which the applicant's counsel himself cited.

6. It was further urged that if a case is decided wrongly it cannot be reviewed but if it is a nullity hitting jurisdiction it can be reviewed. Reliance was placed upon . In re, under Article 143 of the Constitution of India. I fail to appreciate how this pronouncement is helpful to the facts of the present case where any criminal proceeding is sought to be quashed on averment that a prima facie case is not disclosed the Court exercising powers under Section 482, Cr.P.C., would ordinarily avoid expression of opinion and appreciation of evidence in the discussion in judgment as that may prejudice the applicant himself. It all the more becomes necessary when the applicant's counsel is not appearing and it is in the interest of the applicant himself to be very brief as to express an opinion and finding whether a prima facie case existed. There are authorities that if a prima facie case exists inherent jurisdiction will not be exercised, namely, Delhi Municipality v. Ram Kishan . In fact there is also an authority, Khacheru Singh v. State of U.P. AIR 1982 SC 784 (2) : 1982 CriLJ 629 (2) that where any charge is framed superior Court should not interfere. When that is the position of law it will be sufficient to observe that a prima facie case is disclosed. This was done in Criminal Misc. Application No. 8686 of 1983. In Criminal Misc. Application No. 3082 there was a judgment of the revisional Court (High Court), itself and consequently it was sufficient to observe that the record has been perused and the petition is dismissed and it has no force. In the like manner in Criminal Misc. Case No. 6308 of 1982 the prayer was for. quashing the order framing charge as well as charge sheet etc. and it was sufficient to say that the materials on the record of the lower Court has also been perused besides material on this record and the application has no force besides it was a case of summary rejection. The crux of the matter is whether the Courts has exercised its mind or not and has proceeded to decide the case on merits or not. A perusal of the order passed themselves go to show that the mind was exercised and the materials were considered and then the order was passed and the order happened to be on merits.

7. Reliance was further placed upon the case of Ratilal Bhanji Mithani v. Asstt. Collector Of Customs,Bombay AIR 1967 SC 1639 : 1967 CriLJ 1676. This case is simply an. authority for the proposition that inherent powers of High Court are preserved by Section 561-A corresponding to present Section 482, Cr.P.C. and they ate vested by 'law' within meaning of Article 21. There cannot be any dispute that the Court has wide powers under Section 482, Cr.P.C. As observed earlier also the matter for consideration is whether this Court will alter or review its judgment when any provision for the same does not exist and so far that aspect is concerned I have already referred to the two Supreme Court pronouncements earlier.

8. Reliance is further placed upon the case of Raj Kapoor v. State (Delhi Administration) . This case is simply an authority for the proposition that revisional powers do not bar the exercise of inherent powers and consequently application under Section 482, Cr.P.C., cannot be rejected simply because a revision lies.

9. The case of Chandra Deo Singh v. Prokash Chandra Bose was cited. It related to dismissal of the complaint and it was held that absence of reasons would make the order a nullity and reasons should be given so that revisional Court may be approached. As I have already dealt with the facts of the present case, and it was sufficient to lay down that a prima facie case, is made out or that the materials on perusal do not make out a case for, interference and it was needless to say more when the matter related to exercise of inherent powers. The facts of the aforesaid Supreme Court case are quite different and whatever observation was made it was made in the context of the case. Reliance was further placed upon the case of Krishna Singh v. Mathura Ahir . It is again on a different point as order of the Civil Judge was without jurisdiction and whatever observations have been made are in that context. Reliance was also placed upon' the cage of Nawabkhan Abbaskhan v. State Of Gujarat. . In that case there was an externment order under Section 56, Bombay Police Act and an opportunity to tender explanation was not given under Section 59. It was held that the order was not a valid order and the accused person could not be prosecuted and convicted for disobedience of the order. In the present case opportunity was there. The case was listed in the cause list with the name of the counsel and the counsel did not put in appearance in spite of the list having been revised so what Court was to do except to proceed with the case on its own, it being under Section 482, Cr.P.C., and then take a decision as has been done. Reliance was also placed upon the case of Mohammad Mian v. State of U.P. 1981 All Cri R 292 in that case counsel had sent an illness slip and that illness slip could not be filed because of inadvertence by the clerk and the case was disposed of without hearing him. On such facts the appeal which was dismissed was restored and the order dismissing the appeal was re-called. The facts are distinguishable. All the three cases were mentioned in the cause list, name of the counsel was also printed. Neither any adjournment slip was received nor any mention was made as is the usual practice here. The list was revised. The Court had the only option to proceed with the case on its own and it has exercised its mind and then dismissed the three cases and when that is the position. Section 362, Cr.P.C. would be a complete bar to the alteration of that judgment or reviewing it. Any other provision also providing for review or re-call of the order does not exist. In the circumstances all the three applications for the re-call of judgment and order in the aforesaid three cases are dismissed.