Suresh Kumar v. State, rep.byInspector of Police,Pallikaranai Police Station,Chennai

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 24.03.2008CORAMTHE HONOURABLE MR. JUSTICE M.JEYAPAULCRL.O.P.No.6512 of 2008 and M.P.No.1 of 2008 Suresh Kumar ... Petitioner Vs.State, rep.byInspector of Police,Pallikaranai Police Station,Chennai. ... Respondent.Criminal Original Petition filed under Section 482 Cr.P.C.to call for the records in Crime No.1849 of 2007 on the file ofrespondent police and quash the same as illegal.For petitioner : Mr.R.Sankara Subbu.For respondent: Mr. A.Saravanan, G.A. (Crl.Side) O R D E R Heard both sides.2. This petition is filed seeking to quash the entirecriminal proceedings as against the petitioner, who has been ranked asA.1 in Crime No.1849 of 2007 on the file of the respondent police.3. The sole allegation as against the petitioner is that hewas found in possession of fake Passport and fake Indian Visa totravel to India. The respondent police having suspected the bonafides of the petitioner, chose to refer those two documents found inpossession of the petitioner to the Chemical Examiner, who hasreturned a finding that as far as the Passport and Indian Visaalleged to have been found in possession of the petitioner areconcerned, they are genuine. Of course, the Chemical Analysist hasgone beyond the brief and stated that the New Zealand Visas are foundto be suspicious, which will have to be confirmed from the New Zealandmission concerned. https://hcservices.ecourts.gov.in/hcservices/

4. We are not concerned with the fabrication or the forgeryof any New Zealand Visas. The question is whether the petitionerpossesses Indian Passport and Indian Visa for the purpose of enteringinto our land. It is only the look out of the New Zealand Government,as rightly pointed out by the learned counsel appearing for thepetitioner, to probe into the veracity of the New Zealand Visas foundin possession of the petitioner herein. 5. As there is a telling testimony in the form of reportemanated from the Chemical Examiner to the effect that the petitionerpossessed genuine Passport and Indian Visa, this Court finds that theentire criminal proceedings as against the petitioner have to bequashed. In view of the above, the entire criminal proceedings asagainst the petitioner in Crime No.1849 of 2007 on the file of therespondent police are quashed and the criminal original petitionstands allowed. Consequently, connected petition is closed.This Crl.O.P. having been posted today ie. on Thursday, theSeventeenth day of April 2008. Under the caption "For Being Mentioned"and upon perusing the order dt.24.3.2008 and in the presence of theaforesaid advocates, the Court made the following Order: The matter was taken up for hearing on being mentioned after thefinal order was passed in the main Criminal Original Petition No.6512of 2008. 2. The petitioner, who is accused of offences punishable undersections 12(1)(A) of the Passport Act and 472, 473, 475 read with 120Bof the Indian Penal Code and 109 of the Indian Penal Code, moved theCriminal Original Petition No.6512 of 2008 seeking quashment. Thecourt, having heard the submissions made on either side, chose toallow the petition seeking quashment and as a result of which theentire criminal proceedings as against the petitioner in Crime No.1849of 2007 on the file of the respondent police were quashed. 3. Learned Government Advocate (Criminal Side) sought permissionto post this matter for being mentioned. Accordingly, the matter cameup for hearing before this court and the submissions made on eitherside were heard. 4. Learned counsel appearing for the petitioner would submit thatthere is a bar under section 362 of the Code of Criminal Procedure toreview the final order passed by this court. Therefore, the questionof re-opening the case which has already reached finality does notarise, he would submit. https://hcservices.ecourts.gov.in/hcservices/

5. Learned Government Advocate (Criminal Side) would submit thatthe gravity of the charges as against the petitioner and the seizureof fake seals from the custody of the petitioner were not properlyhighlighted during the course of final hearing of Criminal OriginalPetition No.6512 of 2008 for want of proper instructions from therespondent police and that therefore, the order passed by this courtwill have to be reviewed. 6. A Bench of this court in ARUNACHALAM, K.K. v. K.NALLUSAMY(1995-2-LW 456) has heavily come down upon the manner of posting thecases "for being mentioned" when such a procedure was not justified byany of the provision of law. The party cannot prescribe a procedureof his own and have the matter mentioned in the court orally and bringit once again for fresh consideration. Therefore, the matter cannotbe taken up under the caption "for being mentioned", it has beenobserved therein.7. It is relevant to refer to the provision under section 362 ofthe Code of Criminal Procedure which reads as follows:-"Court not to alter judgment – Save as otherwiseprovided by this Code or by any other law for the timebeing in force, no Court, when it has signed itsjudgment or final order disposing of a case, shallalter or review the same except to correct a clericalor arithmetical error."8. The aforesaid procedural law is clear that once a judgment ora final order is passed, the same cannot be reviewed, but, a clericalor arithmetical error can be altered or reviewed by the court. 9. Here is a case where both the parties were heard in full. Itmay be a case where the learned Government Advocate (Criminal Side)could not properly project the case and highlight the important pointswith regard to the gravity of the charge as against this petitionerand the materials collected during the course of investigation. But,there is no scope for re-opening of the case which had already reachedfinality. Further, section 362 of the Code of Criminal Procedure is adirect bar in entertaining any such plea that too under the novelprocedure under the caption "for being mentioned".10. In HARI SINGH MANN v. HARBHAJAN SINGH BAJWA (2001 SCC (Cri)113), the Supreme Court has categorically held as follows:-"Section 362 of the Code mandates that no court, whenit has signed its judgment or final order disposing ofa case shall alter or review the same except tocorrect a clerical or an arithmetical error. Thesection is based on an acknowledged principle of law https://hcservices.ecourts.gov.in/hcservices/ that once a matter is finally disposed of by a court,the said court in the absence of a specific statutoryprovision becomes functus officio and disentitled toentertain a fresh prayer for the same relief unlessthe former order of final disposal is set aside by acourt of competent jurisdiction in a manner prescribedby law. The court becomes functus officio the momentthe official order disposing of a case is signed.Such an order cannot be altered except to the extentof correcting a clerical or an arithmetical error." 11. The moment the court passes an order or judgment, it becomesfunctus officio. It has got a power to correct a clerical orarithmetical error under the provision of section 362 of the Code ofCriminal Procedure. But, it is disentitled to entertain a prayer forre-opening the case and to re-hear the matter so as to alter theverdict passed by it. 12. It has been held in STATE OF KERALA v. M.M. MANIKANTAN NAIR(2001 SCC (Cri) 808) as follows:-"The Code of Criminal Procedure does not authorise theHigh Court to review its judgment or order passedeither in exercise of its appellate, revisional ororiginal jurisdiction. Section 362 of the Codeprohibits the court after it has signed its judgmentor final order disposing of a case from altering orreviewing the said judgment or order except to correcta clerical or arithmetical error. This prohibition iscomplete and no criminal court can review its ownjudgment or order after it is signed. By the firstorder dated 31.5.2000, the High Court rejected theprayer of the respondent for quashing the criminalproceeding. This order attained its finality. By theimpugned order, the High Court reversed its earlierorder and quashed the criminal proceeding for want ofproper sanction. By no stretch of imagination can itbe said that by the impugned order the High Court onlycorrected any clerical or arithmetical error. In factthe impugned order is an order of review, as theearlier order was reversed, which could not have beendone as there is no such provision under the Code ofCriminal Procedure, but there is an interdict againstit." 13. In the aforesaid judgment, the Supreme Court has held thatthere is no power conferred on the High Court under the scheme of theCode of Criminal Procedure to review its own order or judgment. Ofcourse, the clerical or arithmetical error in the judgment or ordercan be corrected, inasmuch as the judgment or order reaches its https://hcservices.ecourts.gov.in/hcservices/ finality the moment it is signed and pronounced. 14. A judgment of the Full Bench of the Calcutta High Court inHARJEET SINGH v. STATE OF WEST BENGAL (2005 (2) MWN (Cr.)(FB) 109(Cal.)) can be usefully referred to as the ratio laid down thereinfits in squarely to the facts and circumstances of this case. It hasbeen held by the Full Bench of the Calcutta High Court that the courtcannot review or recall its final order even in cases where theparties come up before it feeling that they have not been heard orthey have left out something which, if placed before the court, mayhave resulted in a decision and that the decision arrived in theirabsence was an impaired finding. Once, the court lifts its pen aftersigning the verdict, it cannot put it once again except to rectify aclerical or arithmetical error, it has been further held therein. 15. Even in a worst case, where, the parties were denied anopportunity of being heard or in a case where they failed to highlightcertain important points to convince the court, they cannot seek forreview of the decision pronounced by the court. In the latest judgmentof the Supreme Court in SUNITA JAIN v. PAWAL KUMAR JAIN AND OTHERS(2008(1) Supreme 513), it has been held that the power of review isnot an inherent power and must be conferred on a court by a specificor express provision to that effect. Inasmuch as no power of reviewhas been conferred by the Code of Criminal Procedure on the criminalcourts, it cannot review an order passed or judgment pronounced.Section 362 of the Code of Criminal Procedure does not empower acriminal court to alter its judgment or final order after it is signedexcept to correct clerical or arithmetical error. 16. The afore referred catena of authorities lay down the lawuniformly that the criminal courts do not have the power of reviewexcept to set right the clerical or arithmetical error. Section 362of the Code of Criminal Procedure imposes an embargo on the criminalcourts to entertain any such plea after it has rendered its verdict.Once a verdict reaches its finality, the courts have no power to re-open the same for the purpose of altering the finality it has alreadyreached. 17. The learned Government Advocate (Criminal Side) referred toan authority reported in MINU KUMARI v. STATE OF BIHAR ((2006) 2 SCC(Cri) 310) wherein the Supreme Court has held that when a Magistrate,by mistake, has taken cognizance and issued summons as against someaccused where the investigating officer did not find their involvementin the offence, the High Court should have gone to the rescue of thelearned Judicial Magistrate, who had rectified such a mistakecommitted by him. 18. That was a case where the first information report waslaunched as against four accused by the informant. The names of all https://hcservices.ecourts.gov.in/hcservices/ the four assailants found a place in the first information report.But, during the course of investigation, the investigating officerfound only two persons out of the four named in the FIR appear to havecommitted the offence and therefore, having deleted two persons fromthe final report, laid the charge sheet as against the remaining twoaccused. But, the learned Chief Judicial Magistrate, by oversight,without adverting to the final report which do not disclose primafacie any material as against the persons who have been deleted fromthe charge sheet, took cognizance of the case and issued summons tothose persons who have been deleted by the investigating officer.Having realised the mistake, the Chief Judicial Magistrate was pleasedto strike off those two names from the criminal proceedings andsustained issuance of summons to the other two accused. The matterwas taken up to the Additional District and Sessions Judge by way ofrevision, who having referred to the provision under section 362 ofthe Code of Criminal Procedure, set aside the order passed by theChief Judicial Magistrate holding that the learned Chief JudicialMagistrate cannot recall its own order on the pretext that there was aclerical or arithmetical error as there was an embargo under section362 of the Code of Criminal Procedure. The matter was taken up to theHigh Court. Referring to the provision under section 362 of the Codeof Criminal Procedure, the High Court confirmed the order passed bythe Additional District and Sessions Judge, Siwan. In suchcircumstances, the Supreme Court has held that if an error has beencommitted by mistake, the High Court should have gone to the rescue ofthe learned Chief Judicial Magistrate who was pleased to correct themistake committed by him. 19. In this case, no mistake was committed by this court whilepassing the final order in Criminal Original Petition No.6512 of 2008.There might have been some mistake on the part of the respondentpolice in properly briefing the learned Government Advocate (CriminalSide). Therefore, the court finds that the aforesaid ratio laid downby the Supreme Court does not apply to the facts and circumstances ofthis case. 20. In the result, the plea made by the leaned GovernmentAdvocate (Criminal Side) to review the order passed by this courtagainst the spirit of section 362 of the Code of Criminal Proceduremerits no consideration and therefore, his plea for review standsrejected.Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ ssk. To1. The Inspector of Police, Pallikaranai Police Station,Chennai.2.The Public Prosecutor, High Court, Madras.+1cc to Mr.R.Snakarasubbu, Advocate Sr 21650SJI (CO)km/21.4.Crl.O.P.No.6512/2008