Dharma Saikia vs State of Assam

P.G. Agarwal, J.—This is an application filed by accused/convict Dharma Saikia u/s 482 Cr.PC, for review of the order, passed by this court on 8.9.1904, in Criminal Revision No. 31/99, whereby the conviction and sentence of the accused-appellant was upheld.

The facts leading to the present petition may be noted.

In Sessions Case No. 56(NL)/94, the petitioner-accused Dharma Saikia was tried by the Assistant Sessions Judge, Lakhimpur, for commission of offence u/s 376 IPC and thereafter, vide judgment dated 14.8.1997, the trial court held the accused guilty u/s 376 IPC and sentenced him to imprisonment for six months and pay a fine of Rs. 1,000 only and, in default, to suffer further imprisonment for one month. Feeling aggrieved, the petitioner preferred Criminal Revision No. 16(3)/97 before the Sessions Judge, Lakhimpur. Vide judgment dated 29.11.1997, the appellate court allowed the appeal and remanded the matter back for fresh examination of the accused u/s 313 Cr.PC. Thereafter, the trial was concluded and vide judgment dated 7.9.1998, the trial court convicted the accused-appellant u/s 376 IPC and sentenced him to imprisonment for three years and to pay a fine of Rs. 5,000 and, in default, to suffer further imprisonment for one month. The said order of conviction was challenged in Criminal Appeal No. 73/98, before the Sessions Judge, Lakhimpur, and vide impugned judgment, the learned appellate court dismissed the appeal and affirmed the order of conviction and sentence. Thereafter, the petitioner preferred Criminal Revision No. 31/1999 and the said revision was heard by this court and, vide judgment dated 8.9.2004, this court dismissed the revision holding, inter alia, there is no illegality or infirmity in the judgment and the evidence on record fully establishes the guilt of accused and the conviction and sentence u/s 376 IPC needs no interference.

The petitioner thereafter, approached the hon''ble Supreme Court of India in Special Leave to Appeal (Criminal) No. 3990/2005 and the said SLP was disposed of by the Apex Court vide order dated 8.4.2005. The order of the Apex Court reads as follows:

UPON hearing the court made the following

ORDER

Learned Counsel appearing for the petitioner seeks permission to withdraw the SLP on the ground that he wants to file a review petition before the appropriate court. Permission sought for is granted. The SLP is dismissed as withdrawn with liberty to the petitioner for filing a review petition.

The petitioner thereafter, filed the present application for review stating, inter alia, some other major points of law as well as facts were not properly placed and presented before this court and that the courts below did not consider the F.I.R., etc., in proper perspective and, as such, the petitioner prayed for exercise of power of review in the interest of justice.

On the question of maintainability of the present review petition, the learned Counsel appearing for the petitioner have submitted that leave to file review petition has been granted by the Apex Court in its order dated 8.4.2005, as quoted above, and as such the matter needs no consideration. We find from the order that the SLP was dismissed as the petitioner wanted to withdraw the same. The Apex Court only granted liberty to the petitioner for filing a review petition and the question, whether a review petition is maintainable or not, was never considered by the Apex Court. The petitioner is required to satisfy us that an order passed by this court in Criminal Revision can be reviewed in spite of the provisions u/s 362 Cr.PC. Section 362 of the Cr.PC reads as follows:

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.

In support of his contention, learned Counsel for the petitioner has placed reliance on a decision of the Apex Court in case of Rajender Singh Vs. Lt. Governor, Andaman and Nicobar Islands and Others, which reads as follows:

The power, in our opinion, extends to correct all errors to prevent miscarriage of justice. The courts should not hesitate to review their own earlier order when there exists an error on the face of the record and the interest of justice so demands in appropriate cases. The grievance of the appellant is that though several vital issues were raised and documents placed, the High Court has not considered the same in its review jurisdiction. In our opinion, the High Court''s order in the revision petition is not correct which really necessitates our interference.

We find, that it was a case of review petition in a civil matter, and further, the review was sought on the ground that the issues raised and the documents placed were not considered by the High Court while disposing of the application. In the present case, there is no submission to that effect and admittedly, it is not a case of any error apparent on the face of records.

The learned Counsel also submitted that review can be undertaken by this court in exercise of the powers u/s 482 Cr.PC and, in support of his submission, the petitioner has placed reliance on the following observations of the Apex Court in Zandu Pharmaceutical Works Ltd. and Others Vs. Md. Sharaful Haque and Others,

Exercise of power u/s 482 of the Code in a case of this nature is the exception and not the rule. The section does not confer any new powers on the High Court. It only saves the inherent power, which the court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle ''quando lex a liquid alicui concedit, concedere videtur et id sine quo res ipsae esse non protest'' (when the law gives a person anything, it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists, for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action, which would result in injustice and prevent promotion of justice. In exercise of the powers, court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice. When no offence is disclosed by the complaint, the court may examine the question of fact. When a complaint is sought to be quashed, it is permissible to look into the materials to assess what the complainant has alleged and whether any offence is made out even if the allegations are accepted in toto.

The present case is not a case of abuse of the process of the court and this is not a case where review has been sought on the ground of subsequent developments. The petitioner has prayed for review for re-appreciation of the evidence on the existing materials. Criminal Revision No. 13/99 disposed of by this court, was filed by the petitioner u/s 397/401, read with Section 482 of the Cr.PC, and once an application u/s 482 Cr.PC has been finally disposed of by this court, in our considered view, there is no scope to review the said order, and we find that a similar view was taken by the Apex Court in the case of State of U.P. and Ors. v. Surendra Kumar : (2005)9SCC161 .

So far the scope and ambit of exercising of jurisdiction u/s 482 Cr.PC vis-a-vis provisions u/s 362 Cr.PC is concerned, the matter was considered by the Apex Court in the case of Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee , and the Apex Court held:

(4) Section 362 of the Code expressly provides 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 save as otherwise provided by the Code. Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers, however, as much are controlled by principle and precedent as are its express powers by statute. If a matter is covered by an express letter of law, the court cannot give a go by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.

(5) In Superintendent and Remembrances of Superintendent and Remembrancer of Legal Affairs, West Bengal Vs. Mohan Singh and Others, this court held that Section 561A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the court or to secure the ends of justice and the High Court must, therefore, exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. In that case the facts and circumstances at the time of the subsequent application were clearly different from what they were at the time of the earlier application. The question as to the scope and ambit of the inherent power of the High Court vis-a-vis an earlier order made by it was, therefore, not concluded by this decision.

(6) The inherent jurisdiction of the High Court cannot be invoked to override bar of review u/s 362. It is clearly stated in Smt. Sooraj Devi Vs. Pyare Lal and Another, that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. The law is, therefore, clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials. The High Court has grievously erred in doing so. Even on merits, we do not find any compelling reasons to quash the proceedings at that stage.

A similar view was taken by the Apex Court in the case of Moti Lal Vs. State of Madhya Pradesh,

Section 362 Cr.PC in clear terms lays down that the court cannot alter judgment after the same has been signed except to correct clerical or arithmetical errors. That being the position the High Court had no jurisdiction u/s 482 Cr.PC to alter the earlier judgment.

At this stage, a submission was made by the learned Counsel for the petitioner that in Crl. Misc. Case No. 177/06, disposed of on 22.5.2006, this court, on review of the earlier order, modified the sentence and, as such, the review petition may be entertained.

In view of the settled position in law and the above referred decisions of the Apex Court, we hold that the present Review petition, u/s 482 Cr.PC, is not maintainable considering the provisions u/s 362 Cr.PC and considering the fact that the earlier revision petition u/s 482 Cr.PC was disposed of by this court on merit.

This Misc. Case No. 6/2006 is accordingly dismissed.