Bank of Rajasthan Ltd. and Others vs State of Rajasthan and Others

M.C. Sharma, J.—Since all the aforesaid three Cr. Misc. applications have been filed against a common order dated 9.7.2012 passed by this Court in S.B. Cr.Misc. Petitioners Nos. 723/2003 and 801/2003, hence the arguments have been heard together and they are being decided by this common order. S.B. Cr. Misc. Application No. 317/2012 has been filed by the Bank of Rajasthan Ltd. (applicant No. 1) and Praveen Kumar Tayal (applicant No. 2) in S.B. Criminal Misc. Petition No. 723/2003 with the following prayer:

"It is, therefore, prayed that this application may kindly be allowed, the order dated 9.7.2012 passed by the Hon''ble Court in S.B. Cr. Misc. Petition No. 723/2003 may kindly be recalled and the said petition may kindly be decided on merits after providing adequate opportunity of hearing."

It may be mentioned that other applicants 3 to 14 have been arrayed as applicants in the application but their authorisation letters have not been filed for filing this criminal misc. application.

S.B. Cr. Misc. Application No. 312/2012 has been filed by H.R. Khan, A.K. Pandya and Bulakidas in S.B. Criminal Misc. Petition No. 801/2003 with the following prayer:

"It is, therefore, most humbly prayed that this application may kindly be allowed and the impugned order dated 9.7.2012 passed by the Hon''ble High Court in S.B. Cr.Misc. Petition No. 801/2003 may kindly be recalled arid the said petition may kindly be heard and decided on merits after providing an adequate opportunity of hearing to the humble applicants-petitioners."

S.B. Cr. Misc. Application No. 335/2012 has been filed by the applicant the Bank of Rajasthan (now amalgamated with the ICICI Bank Limited) in S.B. Criminal Misc. Petition No. 723/2003 with the following prayer:

"It is, therefore, most humbly prayed that this application may kindly be allowed and the impugned order dated 9.7.2012 passed by the Hon''ble High Court in S.B. Cr. Misc. Petition No. 723/2003 may kindly be recalled and the said petition may kindly be heard and decided on merits after providing an adequate opportunity of hearing to the humble applicant-petitioner Bank."

The applicants 2 to 14 have been arrayed as proforma applicants in the above petition.

Learned counsel for the petitioners have contended that vide order 2.5.2003 passed by the trial Court, despite a failure report given by the investigation agency, the trial Court acting on a protest petition filed by the complainant and after recording pre-charge evidence proceeded to take cognizance of alleged offences under Section 406 and 120B IPC against the erstwhile Bank of Rajasthan Ltd. and all its directors/office bearers named in the complaint, as such Cr. Misc. Petitioners (S.B. Cr. Misc. Petition Nos. 723/2003 arid 801/2003) were filed with the following prayers:

"S.B. Cr. Misc. Petition No. 723/2003:

"(a) The record of the criminal case No. 113/2002 State/HRB Floriculture Ltd. versus P.K. Tayal and others pending in the court of Judicial Magistrate No. 21, Jaipur City, Jaipur may kindly be summoned and examined;

(b) The impugned criminal complaint as also the proceedings taken and orders passed therein including the order dated 2.5.2003 passed by the learned court below may kindly be quashed and set-aside;

(c) Any other appropriate order or direction, which may be considered just and proper in the facts and circumstances of the case, may also kindly be issued in favour of the petitioners."

S.B. Cr. Misc. Petition No. 801/2003:

"It is, therefore, humbly prayed that Your Lordships may be pleased to accept this petition and may be pleased to quash and set aside the orders dated 2.5.2003 (Annx. 7) and 15.7.2003 (Annex. 8) or to pass any other order in favour of the petitioners in the light of the facts and circumstances of the case."

In the aforesaid Cr. Misc. petitions, on 9.7.2012, this Court passed the following order:

Against the order dated 9.7.2012 passed by this court, the aforesaid three applications have been filed with the afore-mentioned prayers.

Mr. Sudhanshu Kasliwal, Sr.Counsel, assisted by Ms. Suruchi Kasliwal and Mr. Mahendra Singh, counsel for the petitioners have contended at although they have given the consent while passing the order dated 9.7.2012 by this Court, but the same was given without obtaining the consent of their respective clients and that''s why their consent should be withdrawn and matter should be decided in accordance with law.

In support of their contentions, they have placed reliance on the following judgments:

"(i) P. Nallammal Etc. Vs. State Rep. by Inspector of Police,

(ii) The Central Council for Research in Ayurveda and Siddha and Another Vs. Dr. K. Santhakumari,

(iii) State of Punjab versus Davinder Pal Singh Bhullar and others (with State of Punjab Vs. Davinder Pal Singh Bhullar and Others etc.,

(iv) Asit Kumar Kar Vs. State of West Bengal and Others, .

(v) Adalat Prasad Vs. Rooplal Jindal and Others,

(vi) Pepsi Foods Ltd. and Another Vs. Special Judicial Magistrate and Others, .

(vii) State of Orissa Vs. Debendra Nath Padhi,

(viii) Gopal Das Sindhi and Others Vs. The State of Assam and Another

(ix) State of West Bengal Vs. Bejoy Kumar Bose and Others,

(x) S.K. Alagh Vs. State of U.P. and Others,

(xi) Maharashtra State Electricity Distribution Co. Ltd. and Another Vs. Datar Switchgear Ltd. and Others, ."

On the other hand, Mr. M.M. Ranjan, learned Sr. Counsel assisted by Mr. Arun P. Singh and Mr. V.S. Poonia have contended that this court cannot review its own judgment except to correct the clerical or arithmetical error. They have further drawn the attention of this Court on Section 362 CrPC, which is reproduced as under:

"362. Court not to after judgment-Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has sighed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

They have further drawn the attention of this Court on the judgment of Hon''ble Apex Court rendered in the case of State of Kerala Vs. M.M. Manikantan Nair, , wherein in para No. 6, it has been held that:

"6. The Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 of the Code prohibits the court after it has signed its judgment or final order disposing of a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed."

Further the court''s attention was drawn on the judgment of Hon''ble Apex Court in the case of Hari Singh Mann Vs. Harbhajan Singh Bajwa and Others, , wherein in para No. 7, it has been held that 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 arithmetical error. The Section 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 arithmetical error.

In the last, they have drawn the attention of this Court towards the relevant part of the Vakalatnama filed by the petitioners, which reads as under:

"....and all acts of such counsel or counsels shall be equally and similarly binding on me/us as if done by me/our said counsel and as if done by me/us personally."

In view of above, they have contended that once the Vakalatnama is signed by the petitioners and the same is handed over to the Advocates, the act of the advocates is binding on the petitioners as if the same was done by the petitioners themselves. Hence, the applications filed on behalf of the petitioners are not maintainable and the same deserve to be dismissed. After hearing both the parties and looking to the facts and circumstances of the case, as also the definition of Section 362 CrPC and the order dated 9.7.2012 passed by this Court under Section 482 Cr.P.C. on the basis of consent given by the advocates of the respective parties, as indicated above, and the law laid down by the Apex Court in the case of State of Kerala versus M.M. Manikantan Nair (supra) and Hari Singh Maan Versus Harbhajan Singh Bajwa (supra), in my view, the petitioners have filed the applications before this Court for recalling the order dated 9.7.2012, which is contrary to the provisions of Section 362 Cr.P.C., hence I do not think it proper to recall the order dated 9.7.2012 passed by this Court and thus, all the aforesaid three applications being bereft of any merit deserve to be dismissed, which stand dismissed accordingly.