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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. L...I...T.......T.......T.......T.......T.......T.......T..J     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@@                  JJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJJ to  the  directions issued against the SSP,  Roopnagar,  the@@

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JJJJJJJJJJJJJJJJJJJJJJJJJJ 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.