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Judgment
Sheel Nagu, Judge
This M. Cr. C. filed u/s 482 of Cr. P. C. seeks correction in the final order dated 04/05/2012 passed in M. Cr. C. No. 2025/2012 whereby while allowing the said M. Cr. C. No. 2025/2012, this court quashed the impugned charge and the criminal case No. 7724/2008 with direction to the trial court to frame charge afresh based upon the allegations made in the complaint. Learned counsel for rival parties are heard on the question of admission.
Reliance is placed by learned counsel for applicant, in support of his contention, on the decision in the case of Dr. Monica Kumar and Another Vs. State of U.P. and Others, (paragraphs No. 33 and 36) and the case of Vishnu Agarwal Vs. State of U.P. and Another,
The primary contention of learned counsel for the applicant is that this court while passing the order which is sought to be corrected has not only quashed the impugned charge but also criminal case No. 7724/2008 which is an error apparent on the face of the record and that this court was wrong to hold that the contravention of Section 26 of the Water Pollution and Control Act, 1974 (Act of 1974 in brevity) was made out thereby curtailing and usurping the power of court below of framing charge.
As regards the contention No. 1, it is seen from reading of paragraph No. 13.1 of the order sought to the corrected, the direction that was made is as follows:-
The impugned charge dated 12/10/2011 and Criminal case No. 7724/2008 is set aside.
It appears from the reading of the above that the term "and" contained in the above said direction is an error apparent on the face of the record as the same ought to have been "in" which if substituted in place of "and" brings out the correct picture in the mind of the court and therefore, this court is of the considered view that the direction contained in paragraph No. 13.1 of the order deserves to be amended and be read as follows:-
The impugned charge dated 12/10/2011 in Criminal case No. 7724/2008 is set aside.
So far as the other contention of learned counsel for applicant concerning over stepping the jurisdictional limit by this court while holding the prima-facie existence of material for framing of charge u/s 26 of the Act is concerned, it is seen from the record that the said findings have been recorded after due consideration of the allegations contained in the complaint and therefore, the said finding is a conscious one which cannot be termed as an error apparent on the face of record which either needs correction/recalling/review.
Moreover, no review is permissible under the Code of Criminal Procedure as it prohibits this court u/s 362 of Cr.P.C. to alter or review it''s judgment or final order except to correct a clerical or mathematical error. The applicant in the instant case has not been able to point out any clerical or mathematical error in the order sought to be corrected.
The decision relied upon by learned counsel for applicant in the case of Monika Kumar (supra) lays down the scope of interference permissible u/s 482 of Cr.P.C. but does not relate to the power of correction/recalling/ review and therefore, on facts the said decision is distinguishable and thus of no avail to the applicant. As regards the other case of Vishnu Agrawal (supra) of the Apex Court lays down power of recalling as distinct from the power of review under the Code of Criminal Procedure which can be exercised for recalling an order which has been passed ex-parte without affording an opportunity to a person who is party to the case. In the present case, the order sought to be corrected has been passed bi-party after affording due and sufficient opportunity to the rival parties and therefore, the said decision of the Apex Court is also of no avail.
In view of the above, this court is of the considered view that no ground is made out for interference in the order sought to be corrected and therefore, this M. Cr. C. deserves to be and is hereby dismissed except to the extent indicated infra.
The direction contained in paragraph No. 13.1 will be substituted and reads as under:-
The impugned charge dated 12/10/2011 in Criminal case No. 7724/2008 is set aside.
No order as to costs.