Chandrama Singh vs State of U.P. and Another

Bhanwar Singh, J.—This is an application moved on behalf of the High Court for recall of the ex parte order dated 15th November, 2002, passed by Hon''ble Mr. Justice K. K. Misra.

By virtue of the said order, the Hon''ble Judge allowed a petition filed by Shri Chandrama Singh, I Ind Additional Sessions Judge, Lakhimpur Kheri, u/s 482, Cr. P.C. The facts and circumstances which have led to moving of this application for recall by the High Court may, in brief, be recapitulated as below.

Shri K. N. Ojha, now a sitting Judge of this Court, while posted as Sessions Judge, Lakhimpur Kheri rejected the bail application of an accused Shri Liyakat involved in Case Crime No. 83 of 2000 under Sections 302/323/324/504 and 506, I.P.C. police station Palia. The rejection order was passed by the learned Sessions Judge on 8th February, 2001.

The aforesaid accused then approached the Lucknow Bench of Allahabad High Court and prayed for his bail but his application (Criminal Misc. Case No. 1334 (B) of 2001) was rejected on 30th August, 2001.

The learned Sessions Judge, as he then was went on leave on 7th November, 2001. Deriving advantage of his absence, the accused got a second application for bail moved, which was heard by Shri Chandrama Singh and allowed in his capacity as Incharge Sessions Judge on 7th November, 2001.

It appears that the things were managed and manipulated in the office of the Incharge District Judge. The State moved for cancellation of bail, which was heard on April 9, 2002 by Hon''ble Mr. Justice Naseemuddin since retired. After hearing the parties counsel, the bail granted by Shri Chandrama Singh was cancelled in view of the fact that the learned Sessions Judge and this Court both had earlier dismissed the bail plea of the accused. However, while granting the application for cancellation of bail, Hon''ble Mr. Justice Naseemuddin took an exception and passed serious strictures against the officer and directed the Registry to collect necessary datas so that a vigilance enquiry against the misconduct of Shri Chandrama Singh might be held. The Registrar General of this Court was also directed to make an adverse entry in the character roll of Shri Chandrama Singh. The entry was also proposed which runs as follows:

Sri Chandrama Singh was found in this case to have committed, misconduct and was guilty of judicial impropriety by granting bail on 7.11.2001 as Incharge Sessions Judge while deciding Bail Application No. 2900 of 2001 under Sections 323, 504, 506 and 302, I.P.C. P. S. Palia district Kheri under the circumstances that the bail application of Liyakat accused had been rejected by Sri K. N. Ojha, Sessions Judge, Lakhimpur Kheri on 8.2.2001 ; and under the circumstances that the bail application of the accused had been rejected by this Court in Criminal Misc. Case No. 1334 (B) of 2001 on 30.8.2001 on merits before passing of the order by Sri Chandrama Singh. He unjustifiably revoked the order of Sri K. N. Ojha, Sessions Judge deliberately as appears from his order dated 7.11.2001.

Feeling aggrieved of the adverse observations made by the Court and the proposed adverse entry, Shri Chandrama Singh filed Criminal Misc. Case No. 578 of 2002 u/s 482, Cr. P.C. for expunging the adverse remarks awarded against him and prayed for expunction of such adverse comments and also the proposed entry. Further, direction of the Court for a vigilance enquiry was also sought to be quashed.

The petition filed by Shri Chandrama Singh came up for hearing before Hon''ble Mr. Justice Khem Karan, who had in all propriety directed the Registry to list it before Hon''ble Naseemuddin, J., the Hon''ble Judge who had cancelled the bail and passed the strictures besides proposing adverse entry against the officer. The matter was listed before Hon''ble Naseemuddin, J., on 20th May, 2002 and the Hon''ble Judge rejected the petition holding that there was no ground to interfere in the order passed by him earlier. The Petitioner did not lose heart and moved a recall application on September 13, 2002, which came up for orders before Hon''ble K. K. Misra, J., perhaps because Hon''ble Naseemuddin, J., retired in the meantime. Hon''ble Mr. Justice Misra recalled the order dated 20th May, 2002 and directed the petition u/s 482, Cr. P.C. to be listed on 15th November, 2002 and on the said date, allowed the petition and expunged the adverse remarks made against the Petitioner.

It is this order dated 15th November, 2002 for recall of which this application has been filed.

Mr. T. M. Khan, the officer-on-Special Duty (Litigation), Allahabad High Court has asserted in his affidavit that the restoration application was not maintainable in view of Section 362, Cr. P.C. and the only remedy was to move an application before the Hon''ble Chief Justice in accordance with the provisions of Rule 12 Chapter v. of the Allahabad High Court Rules. It was also mentioned that on 15th November, 2002 while recalling the order, Hon''ble Mr. Justice Misra had not given any opportunity of hearing to the Registrar-General, opposite party No. 1. As a matter of fact, it was imperative on the part of the Petitioner to give a notice to the Registrar-General and unless the matter was placed for nomination of a Bench by the Hon''ble Chief Justice, Hon''ble Mr. Justice Misra had no jurisdiction to deal with the restoration application or the petition u/s 482, Cr. P.C.

It would be relevant to note that this application moved by the administrative set-up of the High Court was initially placed before Hon''ble Abdul Mateen, J., and when the said Hon''ble Judge declined to hear the matter, the Hon''ble Chief Justice nominated this Court for hearing of the case.

A very simple question arises for determination as to whether an order passed by a single Judge of this Court u/s 439(2) of the Code of Criminal Procedure can be recalled or reviewed by another single Judge?

The answer is as simple as the question and bound to forge ahead in negative. It would be relevant to note that there is no provision for review or recall of an order passed on merit by a single Judge under any provision of the Criminal Procedure Code. It is only the clerical or arithmetical error which can be rectified u/s 362 and 482, Cr. P.C. According to the provisions of Section 362, 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.

In the case in hand, there was neither any arithmetical error in the order of Hon''ble Mr. Justice Naseemuddin nor there was any clerical error and therefore, question of altering his judgment dated 9th April, 2002, could not have arisen at all. Similarly, u/s 482, Cr. P.C., the inherent power of this High Court could not be invoked as neither there was any order passed under Code of Criminal Procedure which could be given effect to nor there was something, intended to prevent the abuse of process of any Court or to secure the ends of justice. In plain words, it may be observed that the Hon''ble Mr. Justice Naseemuddin did not pass the order nor contain even an iota of observation which could be said as an abuse of process of the Court or which could be reviewed with a view to secure the ends of justice. To put it differently, the provisions of Section 482, Cr. P.C. were not attracted nor the petition u/s 482, Cr. P.C. was maintainable.

This view is fortified by the Apex Court''s judgment in a Criminal Appeal No. 471 of 1979, Smt. Sooraj Devi Vs. Pyare Lal and Another, . The Apex Court clearly ruled in this decision that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. As held further, it is true that the prohibition in Section 362 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". These 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 judgment. The inherent power of the Court is not contemplated by the saving provisions contained in Section 362.

Similarly, the Hon''ble Supreme Court in another decision in Criminal Appeal Nos. 86 to 93 of 1974, State of Orissa Vs. Ram Chander Agarwala and Others, laid down a principle to the effect that once a judgment had been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code which would enable the High Court to review the same or to exercise revisional jurisdiction.

If at all, the Petitioner-Sri Chandrama Singh felt aggrieved of the adverse observations made by the Hon''ble Mr. Justice Naseemuddin, in his order dated 9th April, 2001, the appropriate course was to move the Hon''ble Supreme Court for expunction of remarks. As the Supreme Court exercises appellate jurisdiction over the orders and judgments passed by the High Courts under Article 136 of the Constitution of India, it is quite competent to expunge the remarks contained in the High Court''s judgment.

The Hon''ble Supreme Court observed that a subordinate Judge faced with disparaging and undeserving remarks made by a court of superior jurisdiction is not without any remedy. He may approach the Hon''ble Supreme Court invoking its jurisdiction under Article 136 or 142 of the Constitution of India. The Petitioner, Shri Chandrama Singh, therefore, instead of moving an application u/s 482, Cr. P.C. should have filed a SLP before the Hon''ble Supreme Court for redressal of his grievance. But his move approaching this very Court for expunction of remarks passed by a single Judge was not maintainable, as Section 482, Cr. P.C. is not meant for its case by a Judge of the High Court reviewing or altering the judgment of another Judge of the same Court. If such practice is allowed to survive, it will result in chaotic conditions, as the litigants would approach a different Judge to get judgment passed by another Judge, set aside. Such an altered judgment passed by another Judge is altogether illegal and void ab initio.

In the judgment dated 15th November, 2002, Hon''ble Mr. Justice K. K. Misra referred to four citations, namely, (i) Dr. Raghubir Saran v. State of Bihar and Anr. 1964 (1) Cri LJ 1 ; (ii) Niranjan Patnaik Vs. Sashibhusan Kar and Another, ; (iii) A.M. Mathur Vs. Pramod Kumar Gupta, and (iv) In the matter of: '' In the Matter of: K, a Judicial Officer,

In Mathur''s case (supra), the Supreme Court exercised its appellate jurisdiction while expunging the adverse remarks made by the High Court.

Similarly, in the decision Niranjan Patnaik v. Sashibhusan Kar (supra), the Supreme Court expunged the remarks while exercising its jurisdiction under Article 136 of the Constitution of India.

In another case in In the Matter of: K, a Judicial Officer, (it has already been referred above), the adverse remarks were expunged by the Apex Court under its appellate authority.

Similarly, in the Apex Court''s decision in 1964 (1) Cri LJ 1, a three Judges Bench of the Hon''ble Supreme Court laid down a principle that the inherent power of the High Court is not exercisable for the purpose of interfering with its own final orders or judgments. It is needless to say that a Judge of this Court has no power to review or alter a judgment passed by another Judge.

This view is well supported by the Hon''ble Supreme Court''s decisions in Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. 2000 (3) ACR 2678 (SC) : (2001) 1 SCC 169 and State of Kerala Vs. M.M. Manikantan Nair, . It has been consistently held in both these decisions that a High Court has no jurisdiction to alter or review its own judgment or order except to the extent of correcting any clerical or arithmetical error.

In Hari Singh Mann''s case (supra), the Hon''ble Supreme Court also ruled further that the practice of filing criminal miscellaneous petition after disposal of the main case and issuance of fresh directions in such petition is unwarranted and amounts to abuse of process of the Court. Once a matter is finally disposed of, the Court in the absence of a specific statutory provision becomes functus officio in respect of that matter.

In the other decision of State of Kerala v. M. M. Manikantan Nair (supra), the Hon''ble Supreme Court held that by way of clarification it cannot reverse its own judgment and order.

Mr. T. M. Khan, the officer-on-Special Duty (Litigation), Allahabad High Court has referred to the provisions of Rule 12 of Chapter v. of the Allahabad High Court Rules which postulates the procedure for filing an application for review. It provides as follows:

Application for review.-An application for the review of a judgment shall be presented to the Registrar, who shall endorse thereon the date when it is presented and lay the same as early as possible before the Judge or Judges by whom such judgment was delivered along with an office report as to limitation and sufficiency of court-fees. If such Judge or Judges or any one or more of such Judges be no longer attached to the Court, the application shall be laid before the Chief Justice who shall, having regard to the provisions of Rule 5 of Order XLVII of the Code, nominate a Bench for the hearing of such application:

Provided that an application for the review of a judgment of one Judge who is precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or order to which the application refers, shall be heard or disposed of by a single Judge, and that an application for the review of a judgment of two or more Judges, any one or more of whom is or are precluded by absence or other cause for a period of six months next after the presentation of the application from considering the decree or order to which the application refers, shall be heard or disposed of by a Bench consisting of the same or a greater number of Judges.

Explanation.-For the purposes of this rule the expression ''no longer attached to the Court'' shall be deemed to include absence from the permanent place of sitting on account of the directions given under Rule 17 of this Chapter, illness or any other cause.

Having regard to the aforesaid rule and the explicit provision made therein for the purpose of filing a review petition, I am, however, of the opinion that unless a review petition is maintainable, even the aforesaid rule would not have authorised the Petitioner, Sri Chandrama Singh, Additional District Judge to move a review application and present the same before the Registrar of this Court. However, it would have been better if such an application was moved to the Registrar which in due course must have been placed before the Hon''ble the Chief Justice and indeed, the Hon''ble Chief Justice would have issued necessary instructions asking or directing the Petitioner to approach the Supreme Court. So even if there was no power of review of judgment, which could be exercised by this Court while exercising its jurisdiction, with the passing of appropriate orders by the Hon''ble Chief Justice, a very awkward situation which has arisen with the pronouncement of Hon''ble Mr. Justice Misra''s judgment dated 15th November, 2002, would have been averted. If the said judgment, as observed earlier, is allowed to survive, it is likely to entail a wrong precedent as it would become a ruling which can very frequently be taken recourse to and if followed, would certainly violate the principles of criminal procedure as envisaged in the Criminal Procedure Code. In other words, it may be observed that a Judge made law of review will be thrust upon the enacted Code of Criminal Procedure which, in fact, had no such provision. I can foresee a crisis with this situation and very often, it is likely to raise issues having or hunching complications bringing the criminal procedure to autoptic position.

But this Court would not like to repeat the same mistake which had occurred by virtue of the judgment dated 15th November, 2002, whereby the two earlier judgments and orders of another Judge were modified, without there being a jurisdiction to do so. Possibility of there being some misconception with the passing of the said judgment in question cannot be ruled out and such a misnomer is apparent from perusal of the judgment itself. While its first sentence says that this was a petition u/s 482, Cr. P.C., the last sentence, converse to it, reveals that it was a writ petition, disposed of with the directions given in the judgment. However, I have no hesitation in holding that the said judgment of 15th November, 2002, is without jurisdiction, but since there is no power to set it aside, this Court would refrain from reviewing, altering or reversing it. In this piquent situation and keeping in view all the facts and circumstances of this case and having regard to the relevant provisions of Criminal Procedure Code, I direct the Registrar General of the Allahabad High Court to place before Hon''ble Chief Justice a note with this judgment to refer the following question of law to a larger Bench of this Court:

How to rectify a legal error which has taken place in an order of modification, expunging some part of a final order/judgment of another Judge, passed in an earlier criminal proceeding?

Or The Hon''ble Chief Justice may in his discretion instruct the Registry to file a SLP before the Hon''ble Supreme Court so that the illegallity subsisting in this Court''s judgment dated 15th November, 2002, may be removed and the track of correct legal procedure is set right and also the wrong law is not allowed to survive in Law Books and Journals.

It would not be out of context to mention here on the basis of the submissions made by the learned Additional Government Advocate that not in one but in dozens of cases Shri Chandrama Singh passed orders granting bails in the cases in which learned Sessions Judge or the High Court had already rejected the bail application of the accused persons. Learned Sessions Judge on being asked by the Court submitted a long list of such cases, though it is not necessary to refer to such matters. Suffice it to say that Shri Chandrama Singh, the learned Additional District Judge, who has already been placed under suspension for his misconduct and dereliction of duty while passing orders without jurisdiction is facing a disciplinary enquiry. We are not concerned with the result of the enquiry. But we are gravely concerned with the repeated daredevil acts of the officer in entertaining the bail applications in the absence of the Sessions Judge and, granting bails to the accused, whose bail pleas were rejected either by the Sessions Judge or the High Court or both. Pretending ignorance seems to be a sheer excuse. This Court would not like to travel beyond its jurisdiction and make any observation without hearing the officer but certainly exercising its superintendence over the Court of the said officer, this Court could not fail in its bounden duty to observe that the officer must not have exercised jurisdiction in breach of the practice and the settled norms of justice that an application for bail once rejected by a Court or an officer should be dealt with by none else than him alone.

It is with the above discussions and directions that the application for recall of the judgment and order dated 15th November, 2002, moved by the High Court''s administration through its Litigation Cell is disposed of.