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P. Varadarajan v/s Dr. A. Jawahar Palaniappan Majority Shareholder & Director Kumudam Publications Pvt. Ltd.

    M.P.No. 1 & 2 of 2014 in Crl.R.C.No. 1483 of 2013

    Decided On, 16 May 2014

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MS. JUSTICE K.B.K. VASUKI

    For the Petitioner: R. Amizhdhu, Advocate. For the Respondents: Public Prosecutor.



Judgment Text

(Prayer: Petitions praying that in the circumstances stated therein and in the affidavit filed therewith the High Court will be pleased to (i) expunge the observations resulting in factural errors and also correct the clerical errors made in the order passed in Crl.R.C.No.1483 of 2013 dated 21.04.2014 to secure the ends of justice. (ii) to stay the operation of order passed in Crl.R.C.No. 1483 of 2013 pending disposal of the main petition.

Crl.R.C.No. 1483/2013: Petition presented to set aside the order dated 11.10.2013 passed by the Chief Metropolitan Magistrate, Egmore, Chennai in Crl.M.P.No. 4063 of 2012 in X.Cr.No. 196 of 2010 and order further investigation of the complaint by directing the Deputy Commissioner, Central Crime Branch to appoint another investigating officer.

K.B.K. Vasuki, J.

This criminal miscellaneous Petition No.1/2014 arises out of the order dated 21.4.2014 made in Crl.R.C.No.1483/2013. Originally, the petitioner herein has come forward with the application seeking to review the same order. When the maintainability of the same was questioned, the review petition was withdrawn and the present miscellaneous petition came to be filed. The relief sought for in this Crl.MP is to expunge the observations resulting in factual errors and also correct the clerical errors made in the order dated 21.04.2014 passed in Crl.RC.No.1483/2013.

2. Few facts, which are relevant for consideration herein are as follows:

The revision petitioner/defacto complainant/first respondent herein claiming majority shareholding and directorship in M/s.Kumudam Publications Private Limited, has serious dispute with the petitioner herein, resulting in civil and criminal proceedings against each other. One such criminal complaint is filed by the revision petitioner against the present petitioner on 23.4.2010, which was registered as FIR in Crime No.196/2010. The complaint was after investigation closed as mistake of fact and referred charge sheet was filed before the learned Chief Metropolitan Magistrate, Chennai. The defacto complainant, after notice of the referred charge sheet, filed his protest petition in Crl.MP.No.4063/2012 in X Crime No.196/2010. The protest petition was seriously contested by the parties and the learned Chief Metropolitan Magistrate, after due contest, dismissed the protest petition. Aggrieved against the same, the first respondent herein filed the criminal revision in Crl.RC.No.1483 of 2013.

3. The revision petition was again hotly contested by both the defacto complainant/first respondent and the accused/petitioner herein. The criminal revision was by order dated 21.4.2014 allowed by setting aside the order dated 11.10.2013 passed by the learned Chief Metropolitan Magistrate in protest petition in Crl.MP.No.4063/2012 in X.Cr.No.196/2010 and by directing fresh investigation into the complaint in Crime No.196/2010 in accordance with the direction issued by this Court and the Investigating Officer was also directed to file final report within 6 months, arising out of the same is the review petition, which was subsequently withdrawn and is the present petition for the relief as stated supra.

4. The relief as stated above in this criminal MP is sought for mainly on the ground that the findings rendered in the criminal revision in respect of the allegations raised with regard to shareholding of the company and comparison of the signature found in the resolutions regarding salary of the accused and purchase of LED panel board from one Tricom Vision are beyond jurisdiction and are factually incorrect, contrary to the records produced before the court and the same are apparently erroneous on the face of the records and opposed to the principles of natural justice and unless the same are corrected substantial injustice and grave consequences would be meted out to the petitioner.

5. It is further contended before this court on the side of the petitioner that the findings rendered by this court are such, which would virtually render further investigation if any to be superfluous and inconsequential and any further investigation if held influenced by such findings has to conclude the transaction in respect of which serious allegations are raised herein, as tainted and irregular. The learned counsel for the petitioner would seriously argue that under such circumstances, this Court is vested with jurisdiction and power to correct its own findings, failing which, substantial prejudice would be caused to the petitioner and it is likely to seriously prejudice the course of further investigation if any in proper direction.

6. The learned counsel for the petitioner in support of his contention regarding power of the court to correct its own error apparent on the face of the records, cited the following authorities: (i)(2009) 9 SCC 129 (Reeta Nag v. State of West Bengal and others) (ii)(2010) 6 SCC 1 (Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) and (iii)order passed by me in MP.No.1/2010 in Crl.OP.No.28294/2009 dated 13.3.2012 (L.Ameer v. VAK Engineering Pvt Ltd and others).

7. Per contra, the learned counsel for the first respondent/defacto complainant would oppose the relief by seriously questioning the maintainability of this petition. The learned counsel for the first respondent in support of his legal objection cited the following authorities: (i)(1979) 2 SCC 305 (State of Orissa v. Ram Chander Agarwala and others); (ii)(1981) 3 SCC 74 (Naresh and others v. State of Uttar Pradesh); (iii)(2001) 1 SCC 169 (Hari Singh Mann v. Harbhajan Singh Bajwa and others) and (iv)(2011) 14 SCC 770 (State of Punjab v. Davinder Pal Singh Bhullar and others etc).

8. Heard the rival submissions made on both sides.

9. Before going into the relief sought for herein on merits, the first aspect to be considered herein is the legal objection raised on the side of the respondents regarding maintainability of this petition. As already referred to, the present petition is filed by way of criminal miscellaneous petition in Crl.MP.No.1/2014 in Crl.RC.No.1483/2013 by invoking the inherent power of this court under Section 482 Cr.P.C.

10. The learned counsel for the revision petitioner/defacto complainant, at the outset, cited the authority of the Hon'ble Supreme Court reported in (2001) 1 SCC 169 (Hari Singh Mann v. Harbhajan Singh Bajwa and others) wherein, the Hon'ble Apex court in para 8 deprecated the practice of filing miscellaneous petitions after disposal of the main case and issuance of fresh directions in such miscellaneous petitions. For better appreciation, para 8 of the decision is extracted hereunder:

'8. We have noted with disgust that the impugned orders were passed completely ignoring the basic principles of criminal law. No review of an order is contemplated under the Code of Criminal Procedure. After the disposal of the main petition on 7.1.1999, there was no lis pending in the High court wherein the respondent could have filed any miscellaneous petition. The filing of a miscellaneous petition not referable to any provision of the Code of criminal Procedure or the rules of the court, cannot be resorted to as a substitute of fresh litigation. The record of the proceedings produced before us shows that directions in the case filed by the respondents were issued apparently without notice to any of the respondents in the petition. Merely because Respondent 1 was an Advocate, did not justify the issuance of directions at his request without notice of the other side. The impugned orders dated 30.4.1999 and 21.7.1999 could not have been passed by the High court under its inherent power under Section 482 of the Code of Criminal procedure. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provisions and in substance the abuse of the process of the court.'

By relying on the said observation, it is seriously argued by the learned counsel for the first respondent/revision petitioner that on this score alone, the criminal miscellaneous petition is liable to be rejected.

11. It is now well settled that no power of review is conferred upon criminal court by the court under section 362 or any other provisions of court. The Hon'ble Apex Court in the same judgment cited supra, held that there is no provision in the Code of Criminal Procedure authorising the High court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction.

12. Notwithstanding the caption given to the petition, the present miscellaneous petition is filed under Section 482 Cr.P.C. Regarding the power of the court for correcting its own error, the same is provided under Section 362 Cr.P.C, wherein 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 an arithmetical error and in the absence of any express power, alteration or modification of judgment or order is not permissible. It is observed by the Hon'ble Supreme Court in the authority reported in (2001) 1 SCC 169 (Hari Singh Mann v. Harbhajan Singh Bajwa and others) that Section 362 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 disentitled to entertain a fresh prayer for the same 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 official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error. That is why, the petitioner herein thought it fit to withdraw the earlier petition filed for reviewing the order made in Crl.RC No.1483/2013 on earlier occasion and has come forward with the present criminal miscellaneous petition.

13. It may be true that the relief sought for in this Criminal miscellaneous petition filed under Section 482 Cr.P.C is different than the one prayed for in Review SR. But the same is in letter and spirit identical with that of the earlier relief sought for in the review application. Thus, the relief sought for in this MP is, in short, to set aside the findings rendered by this Court in the criminal revision, on some material factors on the ground that the same are erroneous, contrary to records and without jurisdiction etc. The correctness of the findings made in the revision are challenged in such a manner that the same amounts to seeking review of the same, which is otherwise not in legally permissible. Whatever the stand raised in this petition and reiterated by way of argument before this court on merits, the same are subject matter of adjudication further appeal, if any, to be filed against the order made in the Crl.RC No.1483/2013.

14. The relevant provision of Section 362 of the Code mandates that 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 an arithmetical error. The Hon'ble Apex Court in (1981) 3 SCC 74 (Naresh and others v. State of Uttar Pradesh) cited on the side of the first respondent, expressed grave concern and serious displeasure at the course of events in the High Court in the case decided by the same. In that case, one of the appellants was convicted by the trial court for an offence under Section 302 IPC and the rest of the appellants were convicted under section 302 r/w 149 IPC. All of them were sentenced to imprisonment for life. The accused appellants preferred an appeal before the High court. The High court heard the appeals and discussed the question of the culpability of the appellant Naresh. Then in the ultimate paragraph of the judgment, the High Court said about Naresh that ‘his conviction under section 302 IPC and sentence of imprisonment for life awarded thereunder are affirmed’ and the judgment was pronounced on 25.2.1980 and thereafter, on the application filed by Naresh, the High court modified the earlier order on 14.4.1980 and substituted his conviction under Section 302 IPC and sentence of imprisonment for life awarded thereunder into conviction under Section 304 (Part I) IPC and sentenced to undergo rigorous imprisonment for seven years’. The Apex Court expressed grave concern and observed that the High Court was wholly wrong in altering the judgment pronounced by them disposing of the criminal appeals and that was clearly in contravention of the provisions of Section 362 Cr.P.C. It was further observed therein that there was no occasion at all for the purported exercise of power to correct a clerical mistake and alter the conviction under section 302 to one under section 304 IPC. The Hon'ble Supreme Court greatly concerned that the High Court should have committed this grievous error. It is observed in the first para of its judgment that ‘we are afraid we have to voice our grave concern and express our serious displeasure at the course of events in the High court and we consider it our duty to do so.'

15. Next question arises for consideration herein is as to whether what was prohibited under section 362 Cr.P.C can be achieved by invoking the inherent powers of the High court. The same aspect was answered in the judgments cited on the side of the respondents. The Hon'ble Apex Court in (1979) 2 SCC 305 (State of Orissa v Ram Chander Agarwala and others) while dealing with the limited scope of Section 561 A (present Section 482 Cr.P.C) is pleased to observe that it purports to save the inherent powers of the High Court to make such orders (i)as may be necessary to give effect to any order passed under the Code (ii)to prevent abuse of the process of the court and (iii)otherwise to secure the ends of justice. The Section gives no new power, it only provides that those powers which the court already inherently possesses shall be preserved. The Hon'ble Apex Court further observed therein that inherent power cannot relate to any of the matters specifically dealt with by the Code. It would follow that inherent powers cannot be invoked to exercise powers which would be inconsistent with any of the specific provisions of the Code.

16. It is held by the Apex Court in the decision reported in (2011) 14 SCC 770 (State of Punjab v. Davinder Pal Singh Bhullar and others etc) that (i)under the garb of exercising inherent powers, the criminal court cannot review its judgment; (ii)the order cannot be passed bypassing the procedure prescribed by law (iii) such powers should be exercised very sparingly to prevent abuse of process of any court. (iv)it is neither divine nor limitless. (v)Application under Section 482 Cr.P.C lies before the High Court against an order passed by the court subordinate to it in a pending case/proceedings. Inherent jurisdiction can be exercised if the order of the subordinate court results in the abuse of the ‘process’ of the court and/or calls for interference to secure the ends of justice. The use of the word ‘process’ implies that the proceedings are pending before the subordinate court. When reference is made to the phrase ‘to secure the ends of justice’, it is in fact in relation to the order passed by the subordinate court and it cannot be understood in a general connotation of the phrase. In case it attained finality, the inherent powers cannot be exercised. The party aggrieved may approach the appellate/revisional forum. (vi)the power under Section 482 Cr.P.C cannot be resorted to if there is a specific provision in Cr.P.C for the redressal of the grievance of the aggrieved party or where alternative remedy is available. Such powers cannot be exercised as against the express bar of the law and engrafted in any other provision of Cr.P.C. (vii)The inherent power of the court under Section 482 Cr.P.C is saved only where an order has been passed by the criminal court which is required to be set aside to secure the ends of justice or where the proceeding is pending.

17. The Hon'ble Supreme Court in para 48 of the same judgment referred to the observation of the Apex court in Sooraj Devi v. Pyare Lal case to the effect that prohibition in Section 362 Cr.P.C against the court altering or reviewing its judgment is subject to what is otherwise provided by this Code 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 judgement. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 Cr.P.C and therefore the attempt to invoke that power can be of no avail. The Hon'ble Apex Court in para 49 of its judgment, summarised the issue by stating that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself, after pronouncement of the judgment as the Judge becomes functus officio and any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law.

18. By applying the observation of the Hon'ble Apex Court to the facts of the present case, wherein, the inherent power of the High Court cannot be invoked to re-appreciate the findings on facts, which according to the petitioner, are totally erroneous.

19. Though the learned counsel for the petitioner, in support of his contention, relied on the judgments (i)(2009) 9 SCC 129 (Reeta Nag v. State of West Bengal and others) (ii)(2010) 6 SCC 1 (Sidhartha Vashisht @ Manu Sharma v. State (NCT of Delhi) and (iii)order passed by me in MP.No.1/2010 in Crl.OP.No.28294/2009 dated 13.3.2012 (L.Ameer v. VAK Engineering Pvt Ltd and others) regarding maintainability of this miscellaneous petition, in my

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considered view, the same are not applicable to the facts of the present case for the following reason. As far as the Apex court judgments are concerned, the same relate to reinvestigation or further investigation and the same can be considered only when dealing with the correctness of the findings on merits and are not applicable herein at this stage. Regarding the order delivered by me is concerned, the same is also factually distinguishable. In that case, what was dealt with by me is the distinction between the review and recall of the earlier order. This court, while applying the legal principles relating to the absence of provision for reviewing the order already passed, was inclined to recall the earlier order on the ground that the earlier order passed was in violation of the principles of natural justice by not impleading the party concerned as one of the respondents. Whereas in the case in hand, the contesting parties were present and due opportunity of personal hearing was given to both the parties and the order came to be passed after fully hearing them, as such, the order passed by me is not applicable to the facts of the present case. 20. Here is the case, wherein the order passed in the criminal revision is sought to be set aside by going into the correctness of the findings and by re-appreciating the evidence, which is not permissible in law. In my considered view, the remedy if any available to the petitioner in this miscellaneous petition is to approach the appropriate higher forum, challenging the correctness of the order and the petitioner cannot resort to the inherent power of this court under section 482 Cr.P.C and cannot seek review of the order made in the criminal revision under the guise of expunging the observations i.e., factual findings made therein. Thus, for the discussions held above, the Miscellaneous Petition is both in law and on facts, not maintainable and the same is liable to be rejected. 21. In the result, the Miscellaneous Petition is dismissed.
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