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PETITIONER:

HARI SINGH MANN

Vs.

RESPONDENT:

HARBHAJAN SINGH BAJWA & ORS.

DATE OF JUDGMENT: 01/11/2000

BENCH:

K.T. Thomas, & R.P. Sethi.

JUDGMENT:

SETHI,J.

Leave granted.

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Respondent No.1 who is a practising Advocate filed a

petition under Section 482 of the Code of Criminal Procedure

in the High Court of Punjab and Haryana with prayers:

"i) Call for the records of the case for the purpose of

perusal,

ii) direct the respondent No.6 i.e. Station House

Officer of Police Station, Kharar, District Roopnagar as

well as Senior Superintendent of Police, Roopnagar

(respondent No.3) to register a case on the basis of

complaint dated 14.12.1998 (Annexure P-4) lodged by the

petitioner as well as MLR dated 11.12.1998 (Annexure P-4)

lodged by the petitioner as well as MLR dated 11.12.1998

(Annexure P-3) of the petitioner without any further delay.

iii) direct any judicial officer to hold inquiry/

investigation in the aforesaid case in view of the serious

allegations levelled by the petitioner against senior Police

Officer of District Roopnagar.

iv) direct the respondent NO.2 (DGP Punjab) to

immediately transfer the respondent No.4, 5 and Inspector

Jasdev Singh, who is presently posted as SHO of Police

Station Kharar, District Roopnagar, so that free, fair and

impartial investigation/ inquiry may be conducted by some

judicial officer in view of the peculiar facts of the case

under reference."

In his petition the respondent No.1 contended that he

was conducting several civil/criminal cases filed by

M/s.Falcon Breeders Private Limited as well as its Directors

against the appellant and respondent No.8. It was alleged

that with a motive to compel the respondent No.1-Advocate to

withdraw as counsel of the said company and its Directors,

the appellant and respondent NO.8 hatched a criminal

conspiracy to implicate him in false and fabricated criminal

cases. They were alleged to have mixed up with one Ranjit

Singh, Deputy District Attorney (Legal) attached with the

office of Senior Superintendent of Police, District

Roopnagar, Punjab and managed the registration of a case

against the respondent No.1 and his clients being FIR No.151

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dated 10.12.1988 at Police Station Kharar for various

offences under the Indian Penal Code. In furtherance of the

alleged conspiracy a raid was conducted on 11.10.1988 in the

house of one Ravnit Singh, a client of the respondent No.1.

The respondent No.1 reached at the house of Ravnit Singh,

when called, and found there a contingent of police. It is

alleged that the moment the respondent No.1 came out of his

car, he was roughed up and thrown in an open truck. He was

taken to Police Station, Sector 11, Chandigarh where DDR

No.24 dated 11.10.1988 was registered. He further alleged

that thereafter he was whisked away to Police Station,

Kharar. His arms were tied behind his back and a piece of

cloth was tied around his eyes. He was thereafter taken to

an unknown destination and was pushed in an isolated room

where the appellant herein and respondent No.8 were already

waiting. He was subjected to criminal torture by using

third degree methods for about 2-3 hours. The respondent

No.6 was also alleged to have caused injuries upon the said

Advocate with a sharp knife below the knees, without

provocation. Red chillies are stated to have been sprinkled

on his fresh wounds with the object to harm, injure and

terrorise him. He was threatened to be eliminated by the

police personnel and the appellant. After the torture

process, the eyes of the respondent No.1 were again

blind-folded and he was brought back to Police Station,

Kharar where his wife Mrs.Gursharan Kaur had reached by that

time. Upon her raising hue and cry he was sent to Civil

Hospital, Kharar for conduct of his medical examination

where he was examined by Dr.Balwinder Singh. He was stated

to have been released on 11.10.1998 after about 3 hours by

the orders of the Judicial Magistrate, First Class, Kharar.

He claimed to have filed a written complaint in Police

Station, Kharar for registration of FIR against the alleged

culprits. The copies of the complaint are stated to have

been sent to Chief Minister, Punjab, Chief Secretary,

Punjab, Principal Secretary, Punjab, the Director General of

Police, Police SSP, Roopnagar Chief Justice of India and the

Home Minister of India. As no action was taken on his

complaint, he filed a petition in the High Court with

prayers as noted hereinabove.

After hearing the respondent No.1, who appeared in

person, the learned Single Judge of the High Court disposed

of his petition on 7.1.1999 with directions:

"After hearing the petitioner, who is an Advocate

himself, this court is of the considered opinion that no

case for direct registration of the case is made out and a

preliminary enquiry is required. In these circumstances,

the present petition is disposed of with the directions to

the SSP, Roopnagar, to look into the allegations of the

petitioner and if he comes to the conclusion that some

cognizable offence has been committed by respondents 7 or 8

or anybody else, he shall order for the registration of the

case. If the allegations of the petitioner are found to be

false, the petitioner shall be prosecuted u/s 182 IPC. The

petitioner can lead such evidence in support of his case

before the SSP who shall conclude the investigation within 3

months from the receipt of the copy of the order."

After the disposal of the petition filed by the

respondent No.1 and consequently action taken in pursuance@@

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to the directions issued against the SSP, Roopnagar, the@@

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respondent No.1 again filed a Miscellaneous Petition which

was registered as Criminal Miscellaneous No.M-15 of 1999 and

disposed of on 30.4.1999 by the same learned Single Judge,

apparently without notice to the appellant herein or any

other respondent in that petition, with directions: "The

petitioner submits that he has filed a Criminal Complaint on

9.3.1999 in the court of Mrs.Neelam Arora JMIC, Kharar and

she has taken cognizance and in this view of the matter he

does want to prosecute his allegations with the SSP, who may

be directed not to take any action because the matter is

already subjudice before the competent court of

jurisdiction. Therefore, now directions are given to SSP

Roopnagar not to comply with directions dated 7.1.1999 and

not to file any calendra under Section 182 IPC against the

petitioner". The appellant herein also filed a Criminal

Miscellaneous No.20653 of 1999 on 31st May, 1999 with prayer

for quashing the Court order dated 30th April, 1999 on the

ground of its being illegal, against the well established

principles of law and being a review of order dated 7.1.1999

not permissible under the criminal law. The said

application was dismissed by the learned Single Judge on

21st July, 1999. The present appeals have been filed with

prayer for quashing the orders passed by the learned Single

Judge on 30th April, 1999 and 21st July, 1999 mainly on the

ground of the orders being without jurisdiction.

The respondent No.1 who appeared in person tried to

justify the impugned orders with submissions that the High

Court has the power to pass any order in any proceeding at

any stage, in the interests of justice to eliminate any

threat to a fair trial. In support of his contention he

relied upon a judgment of this Court in Talab Haji Hussain

v. Madhukar Purshottam Mondkar & Anr. [AIR 1958 SC 376].

We have noted with disgust that the impugned orders were

passed completely ignoring the basic principles of criminal

law. No review of an order is contemplated under the Code

of Criminal Procedure. After the disposal of the main

petition on 7.1.1999, there was no lis pending in the High

Court wherein the respondent could have filed any

miscellaneous petition. The filing of a miscellaneous

petition not referable to any provision of Code of Criminal

Procedure or the rules of the Court, cannot be resorted to

as a substitute of fresh litigation. The record of the

proceedings produced before us shows that directions in the

case filed by the respondents were issued apparently without

notice to any of the respondents in the petition. Merely

because the respondent NO.1 was an Advocate, did not justify

the issuance of directions at his request without notice of

the other side. The impugned orders dated 30th April, 1999

and 21st July, 1999 could not have been passed by the High

Court under its inherent power under Section 482 of the Code

of Criminal Procedure. The practice of filing miscellaneous

petitions after the disposal of the main case and issuance

of fresh directions in such miscellaneous petitions by the

High Court are unwarranted, not referable to any statutory

provision and in substance the abuse of the process of the

court.

There is no provision in the Code of Criminal Procedure

authorising the High Court to review its judgment passed

either in exercise of its appellate or revisional or

original criminal jurisdiction. Such a power cannot be

exercised with the aid or under the cloak of Section 482 of

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the Code. This Court in State of Orissa v. Ram Chander

Agarwala [AIR 1979 SC 87] held:

"Before concluding we will very briefly refer to cases

of this Court cited by counsel on both sides, 1958 SCR 1226:

(AIR 1958 SC 376) relates to the power of the High Court to

cancel bail. The High Court took the view that under S.561A

of the Code, it had inherent power to cancel the bail, and

finding that on the material produced before the Court it

would not be safe to permit the appellant to be at large

cancelled the bail, distinguishing the decision in 72 Ind

App 120: (AIR 1945 PC 94) (supra) and stated that the Privy

Council was not called upon to consider the question about

the inherent power of the High Court to cancel bail under

S.561A. In Sankatha Singh v. State of U.P. (1962) Supp

(2) SCR 871: (AIR 1962 SC 1208) this Court held that S.369

read with S.424 of the Code of Criminal Procedure

specifically prohibits the altering or reviewing of its

order by a court. The accused applied before a succeeding

Sessions Judge for re-hearing of an appeal. The learned

Judge was of the view that the appellate court had no power

to review or restore an appeal which has been disposed of.

The Supreme Court agreed with the view that the appellate

court had no power to review or restore an appeal. This

Court, expressing its opinion that the Sessions Court had no

power to review or restore an appeal observed that a

judgment, which does not comply with the requirements of

S.367 of the Code, may be liable to be set aside by a

superior court but will not give the appellate court any

power to set it aside itself and re-hear the appeal

observing that "Sec.369 read with S.424 of the Code makes it

clear that the appellate court is not to alter or review the

judgment once signed, except for the purpose of correcting a

clerical error. Reliance was placed on a decision of this

Court in Supdt. and Remembrancer of Legal Affairs W.B. v.

Mohan Singh, AIR 1975 SC 1002 by Mr.Patel, learned counsel

for the respondent wherein it was held that rejection of a

prior application for quashing is no bar for the High Court

entertaining a subsequent application as quashing does not

amount to review or revision. This decision instead of

supporting the respondent clearly lays down, following

Chopra's case (AIR 1955 SC 633) (supra) that once a judgment

has been pronounced by a High 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 Criminal Procedure Code which would

enable the High Court to review the same or to exercise

revisional jurisdiction. This Court entertained the

application for quashing the proceedings on the ground that

a subsequent application to quash would not amount to review

or revise an order made by the Court. The decision clearly

lays down that a judgment of the High Court on appeal or

revision cannot be reviewed or revised except in accordance

with the provisions of the Criminal Procedure Code. The

provisions of S.561A of the Code cannot be invoked for

exercise of a power which is specifically prohibited by the

Code."

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

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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. The reliance of the

respondent on Talab Haji Hussain's case (supra) is

misconceived. Even in that case it was pointed that

inherent powers conferred on High Courts under Section 561A

(Section 482 of the new Code) has to be exercised sparingly,

carefully and with caution and only where such exercise is

justified by the tests specifically laid down in the section

itself. It is not disputed that the petition filed under

Section 482 of the Code had been finally disposed of by the

High Court on 7.1.1999. The new Section 362 of the Code

which was drafted keeping in view the recommendations of the

41st Report of the Law Commission and the Joint Select

Committees appointed for the purpose, has extended the bar

of review not only to the judgment but also to the final

orders other than the judgment.

The impugned orders of the High Court dated 30.4.1999

and 21.7.1999 which is not referable to any statutory

provisions having been passed apparently in a review

petition in a criminal case is without jurisdiction and

liable to be quashed. In view of what has been stated

hereinabove, the appeals are allowed and the impugned order

of the High Court dated 30.4.1999 and 21.7.1999 are set

aside restoring its original order dated 7.1.1999.