Devashish Gaur vs State of U.P.

Surendra Singh, J.—By an order dated 21.7.2008, it was observed that the learned Magistrate should have exercised the power conferred u/s 156(3), Cr. P.C. and direct the police concerned to register a case and investigate it keeping in view of the allegations levelled against the erring persons. It was the case where enquiry/investigation was required and which is not possible under the procedure laid down in Chapter XV of Cr. P.C. With this observation, the order dated 8.5.2008, passed by learned Chief Judicial Magistrate, Gautam Budh Nagar in Crl. Misc. Application No. 166 of 2008, Devashish Gaur v. Rakesh Verma and Ors. Crl. Misc. Application No. 166 of 2008, Police Station Kasna, district Gautam Budh Nagar was set aside and the learned Magistrate was directed to decide the application moved u/s 156(3), Cr. P.C. by the complainant-revisionist afresh in accordance with the observations made therein and with this view the revision was finally disposed of. Hence, the proposed accused has sought modification in the aforesaid order by moving the present application.

It is contended on behalf of the applicant Dr. Rakesh Verma, proposed accused in the alleged incident (hereinafter referred to as the ''applicant'') that the order dated 21.7.2008 was passed behind his back without affording proper opportunity of hearing to the applicant. He has further submitted that in view of Sub-section (2) of Section 401 of Cr. P.C., no order under this Section could be made to the prejudice of accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.

Undisputedly, the order dated 21.7.2008 has already been given effect to. The F.I.R. has been registered and the investigation is going on. It is open for the applicant now to avail the proper remedy available to him against the alleged F.I.R. Relying on the observation made by Hon''ble Apex Court in a case of State of Orissa Vs. Ram Chander Agarwala and Others, and Mostt. Simrikhia v. Dolly Mukherji and Chhabi Mukherji 1990 (2) SCC 79, once the judgment has been pronounced by this Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code which would enable this Court to review the same or to exercise revisional jurisdiction. The aforesaid modification application tantamounts to review of the order dated 21.7.2008 which is not possible in view of the expressed bar provided u/s 362 of Criminal Procedure Code. Section 362 of Cr. P.C. reads as under:

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 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.

Thus, Section 362, Cr. P.C, specifically provides that Court which had signed its judgment or final order disposing of the case is not empowered to alter or review the same except to correct a clerical or arithmetical error. Therefore, the matter in issue is exclusively covered under law and the Court cannot give a go-by to the statutory provisions.

Keeping in view the aforesaid facts and circumstances, I find that the instant modification application moved on behalf of the applicant tantamounts to review of the earlier order which is not permissible under the law.

The modification application, therefore, is bereft of any merit and is liable to be dismissed and is hereby dismissed.