# High Court in Harjeet Singh v. State of

- **Citation:** (2013) 2 ILRA 991
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-07-09
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/high-court-in-harjeet-singh-v-state-of-42668
- **Pages:** 6

## Headnote

Code of Criminal Procedure-Section-362-
Power to recall the judgment/order
passed on merit-inherent power under
section 482 can not be exercised-against
the
statutory
provision-after
signing
judgment-except clerical error-no power
to recall-application rejected.

Held: Para-18
Hon'ble the Apex Court has further held
that even the inherent powers conferred
under Section 482 Cr.P.C. have to be
exercised sparingly, carefully and with
caution. The legal position is clear that an
inherent powers cannot be invoked for
exercise of a power which is specifically
prohibited by the Code. The matter has
been considered by Hon'ble the Calcutta
High Court in Harjeet Singh Vs. State of
West Bengal (F.B.) (supra) and I agree with
the view of Hon'ble the Calcutta High Court.
With humble regards, I do not agree with
the decisions in Criminal Revision No.163 of
2001 and Criminal Revision No.3629 of
2004 passed by Single Judges of this Court
because the provisions of Section 362
Cr.P.C.
are
not
helping
the
present
revisionist and the law declared by Hon'ble
the Apex Court in Hari Singh Mann (supra)
and Harjeet Singh Vs. State of West Bengal
(supra) makes it clear that a judgment of
the High Court on appeal or revision cannot
be
reviewed
or
revised
except
in
accordance with the provisions of the
Cr.P.C. In the Code of Criminal Procedure,
there is no provisions to recall an order
passed on the merits.

Case Law discussed:
Crl. Revision No. 163 of 2001; 2001 SCCrR
129; 2005 Cr.L.J. 3286; AIR 1979(SC)87

## Text

2 All] Smt. Jyoti Belur Vs. C.B.I.
991
Regulation have to be read in line with
judgment of Hon'ble Apex Court in the
absence of challenge to the validity of the
regulation in this petition or in any other
petition earlier.

7. In view of what has been said above,
the writ petition is allowed. The opposite
parties are directed to count the services
rendered by the petitioner in work charged
establishment to the extent it is required for
qualifying services of ten years. The opposite
parties will give pensionary benefits to the
petitioner treating him to be a regular
employee for ten years.

8. The petitioner has retired in
2007. Five years have passed. He has
become a senior citizen of this country.
The opposite parties will be well
advised and directed to complete the
necessary formalities for payment of
pensionary benefits, say within a
maximum period of three months from
the date a certified copy of this order is
placed before them. The services of the
work charged period shall only be
counted for computing the qualifying
services of ten years.
---------
REVISIONAL JURISDICTION
CRIMINAL- SIDE
DATED: ALLAHABAD 09.07.2013

BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.

Criminal Revision No. 2708 of 2010.
Smt. Jyoti Belur

 ...Petitioner
Versus
C.B.I.

.

 ...Respondent

Counsel for the Petitioner:
Sri B.B. Suri, Sri A.K. Awasthi, Sri Manish
Tiwari
Sri R.K. Awasthi, Sri Vimal Chandra Tiwari
Sri Anoop Trivedi
Counsel for the Respondent:
A.G.A., Sri G.S. Hajela, Sri Nazrul Islam
Jafri.

Code of Criminal Procedure-Section-362-
Power to recall the judgment/order
passed on merit-inherent power under
section 482 can not be exercised-against
the
statutory
provision-after
signing
judgment-except clerical error-no power
to recall-application rejected.

Held: Para-18
Hon'ble the Apex Court has further held
that even the inherent powers conferred
under Section 482 Cr.P.C. have to be
exercised sparingly, carefully and with
caution. The legal position is clear that an
inherent powers cannot be invoked for
exercise of a power which is specifically
prohibited by the Code. The matter has
been considered by Hon'ble the Calcutta
High Court in Harjeet Singh Vs. State of
West Bengal (F.B.) (supra) and I agree with
the view of Hon'ble the Calcutta High Court.
With humble regards, I do not agree with
the decisions in Criminal Revision No.163 of
2001 and Criminal Revision No.3629 of
2004 passed by Single Judges of this Court
because the provisions of Section 362
Cr.P.C.
are
not
helping
the
present
revisionist and the law declared by Hon'ble
the Apex Court in Hari Singh Mann (supra)
and Harjeet Singh Vs. State of West Bengal
(supra) makes it clear that a judgment of
the High Court on appeal or revision cannot
be
reviewed
or
revised
except
in
accordance with the provisions of the
Cr.P.C. In the Code of Criminal Procedure,
there is no provisions to recall an order
passed on the merits.

Case Law discussed:
Crl. Revision No. 163 of 2001; 2001 SCCrR
129; 2005 Cr.L.J. 3286; AIR 1979(SC)87

(Delivered by Hon'ble Aditya Nath Mittal, J.)

1. This application has been filed to
recall the order dated 9.4.2013 passed by
this Court on merits in Criminal Revision
992 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
No.2708 of 2010 "Smt. Jyoti Belur Vs.
C.B.I. through Inspector".

2. Learned counsel for the applicantrevisionist has submitted that the adjournment
slip was sent by learned counsel for the
applicant-revisionist and as such he was under
a bonafide belief that the matter might have
been adjourned. But subsequently he came to
know that the criminal revision has been
dismissed. It has also been submitted that this
Court has the power to recall its order in
which the opportunity of hearing has not been
afforded to learned counsel for the applicantrevisionist.

3. Learned counsel appearing for
opposite party has submitted that there is
no provision in Code of Criminal
Procedure to recall an order passed on
merits.

4. Learned counsel for the applicantrevisionist has relied upon an order dated
20.8.2010 passed by Single Judge of this
Court in Criminal Revision No.163 of
2001 "Shri Aleemuddin & another Vs.
State of U.P. & another", in which the
ground was taken that the counsel for the
applicant was not present hence could not
be heard on matter in issue.

5. Learned counsel for the applicantrevisionist has further relied upon a
judgment of this Court passed by Single
Judge in Criminal Revision No.3629 of
2004 "Anil Kumar Garg and others Vs.
State of U.P. and another", in which the
ground was taken that due to mistake of
clerk of the counsel, the revision could
not be marked.

6. Learned counsel appearing for
opposite party has relied upon Hari Singh
Mann Vs. Harbhajan Singh Bajwa and
others, 2001 SCCrR 129, in which
Hon'ble the Apex Court has held as
under:-

"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. 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
2 All] Smt. Jyoti Belur Vs. C.B.I.
993
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."

7. Learned counsel appearing for
opposite party has further relied upon
Harjeet Singh Vs. State of West Bengal,
2005 Cr.L.J. 3286, in which the Calcutta
High Court has held as under:-

"We have given our anxious
consideration to the issue involved
while striking a balance between the
procedure to be followed, protecting
the interest of justice in the light of the
valuable right to property and the
valuable right of audience we feel that
in the light of the clear dictum of the
law the Court cannot review or recall
its final Order, even in cases where the
parties may come up before it feeling
that they have not been heard or they
have left out something, which if
placed before the Court, may have
resulted in a different decision and that
the decision arrived in their absence
was an impaired finding. -Once the
Court lifts its pen after signature it
cannot put it once again; except of the
situations like for the purpose of
rectifying a clerical or arithmetical
error.

We hold that in view of Section 362
of the said Code there is a clear bar for
any Court, which includes the High Court,
to either review or recall an Order or
judgment passed even if it is found
subsequently that it offends the principles
of natural justice as this is the language of
Section 362 of the said Code."

8. Reliance has further been placed
on State of Orissa Vs. Ram Chander
Agarwala, AIR 1979 (SC) 87, in which
Hon'ble the Apex Court has held as
under:-

"Before concluding we will very briefly
refer to cases of this Court cited by counsel
on both sides. 1958 S.C.R.1226 relates to the
power of the High Court to cancel bail. The
High Court took the view that under section
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 1945 Law Reports and 72 Indian
Appeals (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 section
561A. In Sankata Singh v. State of U.P.,(1)
this Court held that section 360 read with
section 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 all 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 section 369
of the Code, may be liable to be set aside by
a superior court but will not give the
994 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
appellate court any power to. set it aside
himself and rehear the appeal observing that
"section 369 read with section 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 Superintendent and
Remembrance of Legal Affairs W.B. v.
Mohan Singh and others(2) 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 (supra) that once a judgment
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 judgment 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. 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 section
561A of the Code cannot be revoked for
exercise of a power which is specifically
prohibited by the Code."

9. Section 362 Cr.P.C. provides as
under:-

"362. Court not to alter judgement.--
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."

10. The present matter was filed in
the year 2008 in which the stay order was
granted. The matter was adjourned
various times on the request of learned
counsel for the revisionist. On 18.9.2012,
the following order was passed:-

"A mention has been made on behalf
of the revisionist to pass over the case for
today. Record shows that revision has
been listed time and again but hearing is
being postponed on one ground or the
other. On 30.07.2012, last opportunity
was given to Mr. Awasthi to file rejoinder
affidavit but so far as no such affidavit
has been filed.

In the interest of justice, the case is
passed over for today.

List peremptorily in the next cause
list.

Till the next date of listing, interim
order is extended.

It is made clear that if arguments are
not advanced, interim order will not be
extended on the next date."

11. Again on 6.2.2013, the following
order was passed:-

"List has been revised. None present
for the revisionist.

On 18.9.2012 it was directed that the
case has been listed so many times but
hearing is being postponed on one ground
or the other. It was also made clear that if
arguments are not advanced then interim
order will not be extended on the next
date.
2 All] Smt. Jyoti Belur Vs. C.B.I.
995

Again the illness slip has been sent
by learned counsel for the revisionist. It
appears that the interim order is being
misused by the revisionist, therefore, the
interim order is vacated.

List on 5.3.2013, for hearing."

12. Even after aforesaid order, the
case was again passed over on the illness
slip of learned counsel for the revisionist
and on 18.3.2013, the following order was
passed:-

"Learned counsel for the revisionist
has again prayed to pass over this case.
The case is pending since long and so
many adjournments have been taken by
the counsel for the revisionist. The
interim order has also been vacated on the
ground that it is being misused. In the
interest of justice one more opportunity is
given to argue the matter.

List on 2.4.2013 peremptorily.

It is made clear that no further
adjournment shall be granted on any
ground whatsoever."

13. On 2.4.2013, the following order
was passed:-

"Case called out in the revised list.

Learned counsel for the revisionist
has sent mention slip today. The same be
taken on record and be made part of the
record.

List this matter in the next cause list.

As the revision pertains to years
2010 and the proceedings of the lower
court are held-up on account of pendency
of this revision, it is requested that learned
counsel for the revisionist to positively
argue the matter on the next date fixed."

14. Despite of the aforesaid strict
orders, learned counsel for the revisionist
again had not argued the matter and had
sent the adjournment slip which was
rejected with the following observations:-

"Learned counsel for the revisionist
has again sent adjournment slip. From the
perusal of the order sheet it reveals that
the case is being adjourned on repeated
illness slips of counsel for the revisionist.
The interim order has also been vacated
by order dated 6.2.2013. Again last
opportunity was given by order dated
18.3.2013 and it was made clear that no
further adjournment shall be granted on
any ground whatsoever, even then the
case was again adjourned on 2.4.2013. It
is thus clear that the adjournment/illness
slips are being misused, therefore, the
adjournment slip is rejected."

15. After hearing learned A.G.A.
and counsel for the opposite party, the
aforesaid criminal revision was dismissed
on merits by order dated 9.4.2013.

16. As far as the provisions of
Section 362 Cr.P.C. are concerned, the
Court including the High Court has no
power to alter or review its judgment or
final order disposing of a case except to
correct a clerical or arithmetical error. In the
present case, ample opportunities were
afforded to the counsel for the revisionist to
argue the matter but the matter was
adjourned on one pretext or the other. This
court was compelled to pass even strict
order and had also requested learned
counsel for the applicant to argue the matter
but the request of the Court was not taken
seriously. I have no hesitation to mention
that the illness slips/adjournment slips have
been grossly misused by learned counsel for
the revisionist and no heed has been paid to
comply with the directions of this Court. It
is also relevant to mention that apart from
996 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
present counsel Sri Anoop Trivedi, there
were other counsels for the revisionist
namely Sri B.B. Suri, Sri A.K. Awasthi, Sri
Manish Tiwary, Sri R.K. Awasthi. It cannot
be presumed by any stretch of imagination
that none of the counsel was available for
argument,
therefore,
taking
into
consideration the background and the
conduct of the revisionist, the adjournment
slip was rejected. This Court while passing
the final order has considered the grounds of
revision and the merits of the case.

17. Hon'ble the Apex Court in Hari
Singh Mann (supra) has clearly held that
after signing of the judgment or the final
order, disposing of a case, only the clerical or
arithmetical error can be corrected and in
absence of a specific statutory provisions, the
court becomes functus officio.

18. Hon'ble the Apex Court has further
held that even the inherent powers conferred
under Section 482 Cr.P.C. have to be
exercised sparingly, carefully and with
caution. The legal position is clear that an
inherent powers cannot be invoked for
exercise of a power which is specifically
prohibited by the Code. The matter has been
considered by Hon'ble the Calcutta High
Court in Harjeet Singh Vs. State of West
Bengal (F.B.) (supra) and I agree with the
view of Hon'ble the Calcutta High Court.
With humble regards, I do not agree with the
decisions in Criminal Revision No.163 of
2001 and Criminal Revision No.3629 of
2004 passed by Single Judges of this Court
because the provisions of Section 362
Cr.P.C. are not helping the present revisionist
and the law declared by Hon'ble the Apex
Court in Hari Singh Mann (supra) and
Harjeet Singh Vs. State of West Bengal
(supra) makes it clear that a judgment of the
High Court on appeal or revision cannot be
reviewed or revised except in accordance
with the provisions of the Cr.P.C. In the Code
of Criminal Procedure, there is no provisions
to recall an order passed on the merits.

19. For the facts and circumstances
mentioned above, I do not find any merits
in the submission of learned counsel for
the revisionist to recall an order passed on
merits. The recall application is rejected.
---------
ORIGINAL JURISDICTION
CIVIL- SIDE
DATED: LUCKNOW 20.05.2013

BEFORE
THE HON'BLE ANIL KUMAR, J.

Service Single No. 2754 of 2010

Ram Autar Shukla

 ...Petitioner
Versus
State of U.P. and Ors.
 ...Respondents

Counsel for the Petitioner:
Sri Ramesh Kumar Srivastava

Counsel for the Respondents:
C.S.C.
Fundamental
Rule-54(4)-Backwagesdismissal order-set-a-side without back
wages-admittedly
delay
caused
in
disciplinary proceeding by the employer
and not on part of petitioner- held-before
dismissal no show cause notice givenentire exercise being contrary to provision
of section 54(4)-order not sustainable.

Held: Para-40
In the instant matter, from the perusal of
the impugned order dated 25.4.2009, the
position which emerges out is that the
competent authority/opposite party no.4
has set aside the order of dismissal taking a
sympathetic view with a direction that the
petitioner is not entitled for any pay and
allowances for the said period, without
issuing any notice and without affording
any opportunity to the writ petitioner to
make
a
representation,
further
the
competent authority also did not consider