# Govind @ Arvind & Ors. Revisionists v. The State of U.P. & Anr

- **Citation:** (2023) 7 ILRA 525
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-31
- **Case number:** Recall/Restoration Application No. 5 of 2023
- **Bench:** Sanjay Kumar Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/govind-arvind-ors-revisionists-v-the-state-of-u-p-anr-50371
- **Pages:** 7

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 147, 148, 149, 302, 506 &
120B - The Code of criminal procedure,
526 INDIAN LAW REPORTS ALLAHABAD SERIES
1973 - Section 362 - Court not to alter
judgment
-
Criminal
justice
delivery
system does not empower the Court to
add or delete any words, except to correct
the clerical or arithmetical error as has
specifically
been
provided
under
the
statute itself that after pronouncement of
the judgement the Judge becomes functus
officio - Any mistake or glaring omission is
left
to
be
corrected
only
by
the
appropriate forum in accordance with
law.(Para - 16)

Application moved by prosecution/complainant -
revisionist/applicant
was
summoned
-
summoning order challenged by filing Criminal
Revision - disposed of by Court - hence
restoration application - revisionist/applicant
wants Court to rehear the case afresh on
merits.(Para - 2,6)

HELD:- Court not inclined to recall it's order,
disposing of the revision, due to Supreme Court
pronouncements
and
Section
362
Cr.P.C.
provisions.(Para -17)

Recall application rejected. (E-7)

List of Cases cited:

## Text

7 All. Govind @ Arvind & Ors. Vs. The State of U.P. & Anr.
525
awarded by learned Nyayadhikari and
affirmed by Appellate Court. However, this
fact cannot be lost sight that revisionist no.
4 and 5, who are impleaded as opposite
party no. 4 and 5 before court below, are
married sisters-in-law (nanand and nandoi)
of the complainant/respondent no. 2. They
admittedly reside at some other place and
their address have been given by the
complainant
herself
in
Vipulkhand,
Lucknow as the revisionist nos. 1 to 3 as
well as respondent no. 2 are presently
residing in district Firozabad, therefore, it
cannot be said that revisionist nos. 4 and 5
were in domestic relationship with the
complainant/respondent no. 2, particularly
in absence of specific pleadings and
evidence in this regard. The shared
households where respondent no. 2 has
stated to have lived after marriage with her
late husband and thereafter for sometime
with revisionist nos. 1 to 3 belongs to
Revisionist No. 1 and 2 according to
version
of
the
complainant
herself.
Respondent nos. 4 and 5 being family
members of her late husband cannot be
saddled
with
the
responsibility
of
providing maintenance awarded to the
complainant/respondent no. 2 in impugned
judgment of court of first instance nor they
can be held accountable to provide an
accommodation to her in shared household
which does not belong to them, therefore,
the impugned order is liable to be modified
to the extent that relief granted by court
below in impugned judgment will be
confined to in respect of revisionist nos. 1
to 3 and revisionist nos. 4 and 5 are
exempted from complying with impugned
order passed by court below providing
maintenance and accommodation in shared
households to the complainant, therefore,
the revision stands partly allowed to the
extent that impugned order is quashed with
regard to opposite party nos. 4 and 5 in
Complaint Case no. 637 of 2020, who are
revisionist nos. 4 and 5 before this Court,
however, impugned order shall held good
in respect of revisionist nos. 1 to 3, who are
opposite party nos. 1 to 3 before court
below.

21. With this modification, this Court
does not find any illegality, irregularity, or
in proprietary in the impugned judgments
passed by court below which are under
challenged
before
this
Court.
The
impugned order shall be binding upon
respondent nos. 1 to 3 and will be
executable against them on application
made by respondent no. 2 in this respect,
however, it is made clear that observations
made while deciding this revision are only
for purpose of present revision and will not
be any bearing on criminal case filed by the
complainant against the revisionists.
----------
(2023) 7 ILRA 525
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED:ALLAHABAD 31.05.2023

BEFORE

THE HON'BLE SANJAY KUMAR SINGH, J.

Recall/Restoration Application No. 5 of 2023
in
Criminal Revision No. 1839 of 2023

Govind @ Arvind & Ors. ...Revisionists
Versus
The State of U.P. & Anr. ...Respondents

Counsel for the Revisionists:
Sri Amit Rana, Sri Anand Prakash Dubey, Sri
Neeraj Srivastava, Sri Suhel Ahmad Azmi

Counsel for the Respondents:
G.A., Sri Adesh Kumar, Barkha Chaudhary

(A) Criminal Law - Indian Penal Code,
1860 - Sections 147, 148, 149, 302, 506 &
120B - The Code of criminal procedure,
526 INDIAN LAW REPORTS ALLAHABAD SERIES
1973 - Section 362 - Court not to alter
judgment
-
Criminal
justice
delivery
system does not empower the Court to
add or delete any words, except to correct
the clerical or arithmetical error as has
specifically
been
provided
under
the
statute itself that after pronouncement of
the judgement the Judge becomes functus
officio - Any mistake or glaring omission is
left
to
be
corrected
only
by
the
appropriate forum in accordance with
law.(Para - 16)

Application moved by prosecution/complainant -
revisionist/applicant
was
summoned
-
summoning order challenged by filing Criminal
Revision - disposed of by Court - hence
restoration application - revisionist/applicant
wants Court to rehear the case afresh on
merits.(Para - 2,6)

HELD:- Court not inclined to recall it's order,
disposing of the revision, due to Supreme Court
pronouncements
and
Section
362
Cr.P.C.
provisions.(Para -17)

Recall application rejected. (E-7)

List of Cases cited:

1. Satender Kumar Antil Vs CBI & anr. , 2021
SCC Online SC 922

2. St. of Orissa Vs Ram Chander Agarwala &
ors. , 1979 SCR (1) 1114

3. Moti Lal Vs St. of M.P., AIR 1994 SC 1544

4. Naresh & anr. Vs St. of U.P., AIR 1981 SC
1385

5. Smt. Sooraj Devi Vs Pyare Lal & anr. , AIR
1981 SC 736

6. Hari Singh Mann Vs Harbhajan Singh Bajwa &
ors. , 2001 (1) SCC 169

7. St. represented by D.S.P. Vs K.V. Rajendran
& ors. ,Criminal Appeal No. 1389 of 2008

8. St. of Punj. Vs Davinder Pal Singh Bhullar,
(2011) 14 SCC 770
(Delivered by Hon'ble Sanjay Kumar
Singh, J.)

1. By means of this application, the
applicant/revisionist has prayed for recall
of the order dated 28.9.2022 passed by this
Court in Criminal Revision No. 1839 of
2022.

2. The facts giving rise to the present
restoration application are that on an
application
moved
by
the
prosecution/complainant,
the
revisionist/applicant was summoned by the
learned Additional Sessions Judge, Court
No. 6, Meerut vide order dated 07.4.2022
to face the trial in Case Crime No. 610 of
2020, under Section 147, 148, 149, 302,
506, 120B IPC. The aforesaid summoning
order
was
challenged
by
the
revisionist/applicant by filing Criminal
Revision No. 1839 of 2022 through
advocate Shri Amit Rana, which was
disposed of by this Court vide order dated
28.9.2022.

3. By means of this application, the
applicant has prayed for recall of the order
dated 28.9.2022 passed by this Court in
Criminal Revision No. 1839 of 2022. At the
time of hearing of the revision, learned
counsel for the applicant gave up his
challenge to the aforesaid impugned order
and confined his submission to the disposal
of his bail application in accordance with
the guidelines laid down by the Apex Court
in the case of Satender Kumar Antil Vs.
Central Bureau of Investigation and
another, 2021 SCC Online SC 922. The
said revision was disposed of by this Court
vide order dated 28.9.2022. The order
sought to be recalled reads thus:

"Heard
learned
counsel
for
the
revisionists,
learned
Additional
7 All. Govind @ Arvind & Ors. Vs. The State of U.P. & Anr.
527
Government Advocate for the State of
U.P./opposite party no.1 and perused the
record.

The instant criminal revision under
Section 397/401 Cr.P.C. has been preferred
by the revisionists namely Govind @
Arvind, Ankit, Manish and Anil against the
judgment and order dated 07.04.2022
passed by Additional Sessions Judge, Court
No. 06, Meerut in Sessions Trial No. 186 of
2021, arising out of Case Crime No. 610 of
By means of this application, the applicant
has prayed for recall of the order dated
28.9.2022
passed
by
this
Court
in
Crimin2020 (State vs. Pankaj), under
Sections 302, 147, 148, 149, 506, 120-B
IPC, Police Station Kankarkhera, District
Meerut whereby the revisionists have been
summoned as an additional accused.

At the outset, learned counsel for the
revisionists gave up his challenge to the
aforesaid impugned order and confined his
submission requesting to grant some
protection to the revisionists to surrender
before the concerned court below. The
learned counsel for the revisionists further
stated at the Bar that he is not pressing any
other prayer on merits and prayed that a
direction may be issued to the concerned
court below to consider and decide the bail
application of the revisionists expeditiously.

Learned A.G.A. for the State of U.P.
submits that in case the revisionists is not
pressing the relief as sought for by on
merits and wants to surrender before the
concerned court below, he has no objection
if the Court grants protection to them for a
short period.

However considering the aforesaid
prayer made by learned counsel for the
revisionists,
it
is
directed
that
the
revisionists-Govind
@
Arvind,
Ankit,
Manish and Anil shall surrender before the
concerned court below within three weeks'
from today and in case they apply for bail,
the same shall be disposed of expeditiously
by the courts below in accordance with law
and keeping in view the guidelines as laid
down by the Apex Court in the case of
Satender Kumar Antil vs Central Bureau of
Investigation and another, reported in 2021
SCC Online SC 922.

For the period of three weeks' from
today or till the revisionists surrender
before the court concerned, whichever is
earlier, they shall not be arrested in the
aforesaid case.

With the above observations and
directions, the instant criminal revision
stands disposed of."

4. It appears that the revisionist has
not complied with the order of this Court
dated 28.9.2022 and filed this restoration
application
through
another
advocate
namely Smt. Gunjan Sharma with the
prayer to recall the order dated 28.9.2022
and decide Criminal Revision No. 1839 of
2022 afresh on merits.

5. Before discussing the case law on
the subject, it would be useful to quote
section 362 of Code of Criminal Procedure:

362. 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
judgement or final order disposing of a
case, shall alter or review the same
except
to
correct
a
clerical
or
arithmetical error.

6. Perusal of Section 362 Cr.P.C. it is
crystal clear that no Court after it has
signed its judgement or final order
disposing of a case, shall not alter or review
the same except to correct a clerical or
arithmetical error. By means of this recall
application, the revisionist/applicant wants
528 INDIAN LAW REPORTS ALLAHABAD SERIES
this Court to rehear the case afresh on
merits. If the contention of the learned
counsel for the applicant is accepted and
Court hears the case on merits and pass
order, that would amount to reviewing its
earlier order altering it, which is totally
prohibited by Section 362 Cr.P.C.

7. It is settled by Hon'ble Supreme
Court in plethora of judgement that the
Court should not review its earlier order.

8. In State of Orissa Vs. Ram
Chander Agarwala and others, 1979 SCR
(1) 1114, the accused therein after being
convicted filed an appeal before the learned
Sessions Judge. Learned Sessions Judge
while dismissing the appeals found that the
law required imposition of a minimum
sentence of fine of Rs. 1000/-for each
offence and as the sentence passed by the
Trial Court was not in accordance with the
law, he referred the matter to the High
Court for passing an appropriate sentence.
The accused preferred a revision against
the order of Sessions Judge. Both the
proceedings were heard together and the
High Court dismissed the revision petition
preferred by the accused and accepted the
reference by the Sessions Judge and
enhanced the sentence so far as the firms
are concerned to a sum of Rs. 3900/-. As
regard the Managers or the managing
partners the High Court sentenced them to
six months rigorous imprisonment. The
Manager and Managing partners filed
petitions before the High Court for review
of its order. The High court accepted the
petition for review and recalled its previous
judgement imposing sentence of six months
and instead imposed a fine of Rs. 3000/-.

9. Hon'ble Supreme Court while
quashing the subsequent order of the High
Court has held as under:

"That once a judgement has 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 judgement as there
are
no
provisions
in
the
Criminal
Procedure Code which would enable the
High Court to review the same or to
exercise revisional jurisdiction."

10. In Moti Lal Vs. State of Madhya
Pradesh, AIR 1994 SC 1544, Hon'ble
Supreme Court held that Section 362
Cr.P.C. in clear terms lays down that the
Court cannot alter judgement after the same
has been signed except to correct clerical or
arithmetical error. That being the position
the High Court had no jurisdiction under
Section 482 Cr.P.C. to alter the earlier
judgment.

11. A three Judge Bench of Hon'ble
Supreme Court in Naresh and another Vs.
State of Uttar Pradesh, AIR 1981 SC
1385, held as under:

"We are entirely at a loss to
understand the order dated April 14, 1989.
In their judgement dated February 25,
1980 while discussing the case against
Naresh the learned Judge had given a
specific and express finding that he
intended to kill the deceased Bahadur and,
therefore,
had
committed
an
offence
punishable under Section 302 Indian Penal
code. The operative part of the judgment
also said the same thing. We do not
understand what the learned Judges mean
when they state in their order dated April
14, 1980, " there is clerical mistake in the
operative part of the judgment." The High
Court was wholly wrong in altering the
judgment pronounced by them disposing of
the Criminal Appeals. That was clearly in
contravention of the provisions of Section
7 All. Govind @ Arvind & Ors. Vs. The State of U.P. & Anr.
529
362 Cr.P.C. what was worse, the High court
acted in purported exercise of the power to
correct clerical mistakes when in fact there
was none. The conviction under Section
302 Indian Penal Code was perfectly
correct and the conviction had been rightly
affirmed by the High Court in the first
instance. There was no occasion at all for
the purported exercise of power to correct
a clerical mistake and alter the conviction
under Section 302 to one under Section 304
Indian Penal Code. We are greatly
concerned that the High court should have
committed this grievous error. There is,
however, nothing that we can do about it at
this juncture as the State has not chosen to
file any appeal against the order dated
April 14, 1980."

12. In Smt. Sooraj Devi Vs. Pyare
Lal and another, AIR 1981 SC 736,
Hon'ble
Apex
Court
held
that
the
prohibition in Section 362 Cr.P.C. against
the
Court
altering
or
reviewing
its
judgement, is subject to what is "otherwise
provided by this code or by any other law
for the time being in force". Those 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 judgement. The inherent
power of the Court is not contemplated by
the saving provision contained in Section
362 Cr.P.C. and, therefore, the attempt to
invoke that power can be of no avail.

13.

Hari
Singh
Mann
Vs.
Harbhajan Singh Bajwa and others,
2001 (1) SCC 169, was a case in which
after disposal of the petition filed by the
applicant therein by the High Court and
consequently action was taken thereof, the
applicant filed another petition, which was
entertained and disposed of by the same
learned Single Judge. Hon'ble Apex Court
while setting aside the order passed by the
High Court held as under:

"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 authorizing 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 the Code.
530 INDIAN LAW REPORTS ALLAHABAD SERIES

The Court further held thus:

"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 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."

14. Hon'ble Supreme Court in State
represented
by
D.S.P.
Vs.
K.V.
Rajendran and others, (Criminal Appeal
No. 1389 of 2008), decided on 02.9.2008,
while dealing with a question as to whether
in exercise of the inherent powers under
Section 482 of the code of Criminal
Procedure, an order disposing of a criminal
petition, refusing to grant any relief, could
be
modified
and,
thereafter,
an
investigation, which was with the State
Police authorities could be transferred to
the Central Bureau of Investigation. The
Court
after
discussing
a
catena
of
judgement observed thus:

"As noted herein earlier, Section 362
of the code prohibits reopening of a final
order except in the cases of clerical or
arithmetical errors. Such being the position
and in view of the expressed prohibition in
the code itself in the form of Section 362,
exercise of power under Section 482 of the
Code cannot be exercised to reopen or alter
an order disposing of a petition decided on
merits."

15. In State of Punjab Vs. Davinder
Pal Singh Bhullar, (2011) 14 SCC 770 the
Hon'ble Apex Court held as under:

"There is no power of review with the
criminal court after the judgement has been
rendered. The High Court can alter or
review its judgement before it is signed.
When an order is passed, it cannot be
reviewed. Section 362 Cr.P.C. 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 specific
statutory provision becomes functus officio
and is disentitled to entertain a fresh
prayer for any 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 order for
disposing of a case is signed. Such an order
cannot be altered except to the extent of
correcting a clerical or arithmetical error.
There is also no provision for modification
of the judgement."

16. Thus, the law on the issue can be
summarized to the effect that the criminal
justice delivery system does not empower
the Court to add or delete any words,
except to correct the clerical or arithmetical
error as has specifically been provided
under
the
statute
itself
that
after
pronouncement of the judgement the Judge
becomes functus officio. Any mistake or
glaring omission is left to be corrected only
by the appropriate forum in accordance
with law.

17. In view of the aforesaid
pronouncements of Hon'ble Supreme Court
7 All. Irshad Khan & Ors. Vs. State of U.P. & Anr.
531
coupled with the provisions of Section 362
Cr.P.C., I am not inclined to recall my order
dated 28.9.2022 disposing of the revision.

18.

Accordingly,
this
recall
application is rejected.
----------
(2023) 7 ILRA 531
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.07.2023

BEFORE

THE HON'BLE RAM MANOHAR NARAYAN
MISHRA, J.

Criminal Revision No. 5132 of 2022

Irshad Khan & Ors. ...Revisionists
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Revisionists:
Mohammad Sadab Khan

Counsel for the Respondents:
G.A.

(A) Criminal Law - The Code of Criminal
Procedure, 1973 - Section 397/401 -
Revision - Sections 107, 116 & 151 -
Challan by local police , Section 111 -
issuance
of
notice
,
Section
193
-
Cognizance of offences by Courts of
Session, Section 207 - Supply to the
accused of copy of police report and other
documents, Indian Penal Code, 1860 -
Sections 147, 148, 149, 307, 336, 332,
353, 420, 447, 504, 506 , Criminal Law
Amendment Act - Section 7 - In cases
triable by court of session as provided in
schedule of the Code - Magistrate has no
power to try the case - he is required to
commit the case before the court of
session where trial may take place -
Magistrate
is
empowered
to
take
cognizance
of
any
offence
unless
otherwise provided including the offence
exclusively
triable
by
the
court
of
sessions. (Para -13)
Accused persons (revisionists) filed 24kha
discharge application - dismissed by court
(C.J.M.) - charged under various sections of
Criminal Law Amendment Act - not heard by
Court of Session - issued bailable warrant
against absentee accused - criminal revision
filed - against order of C.J.M. (Para - 4,5,6,7)

HELD:- Magistrate committed legal error while
deciding
discharge
application
moved
by
accused persons inter-alia under section 307
IPC, which is triable by court of session. Proper
course was to commit the case to Court of
Session, quoting court orders. Magistrate court
instructed to commit case to Court of Session
after ensuring compliance with section 207
Cr.P.C. Court of session to hear and dispose of
discharge application under section 227 Cr.P.C.
after hearing both sides. (Para -19,20,21)

Revision allowed. (E-7)

List of Cases cited:

1. Dharampal Vs St. of Har., (2014) 3 SC 306

2. Sukhbir Singh Vs St. of U.P. & anr., Section
482 No. 21859 of 2021

(Delivered by Hon'ble Ram Manohar
Narayan Mishra, J.)

1. Heard learned counsel for the
revisionists and learned AGA for the State.

2. None appeared on behalf of
respondent no. 2 to contest this criminal
revision today.

3. Counter affidavit has already been
filed by respondent no. 2 in this case.
Learned counsel for the revisionists has
submitted that he is not inclined to file
rejoinder affidavit and prayed for hearing
the matter on merits.

4. The present criminal revision is
filed against the order dated 4.11.2022
passed by learned C.J.M., Jalaun at Orai in