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Dolamani Bariha vs Bisakha Bariha on 11 December, 2017

IN THE HIGH COURT OF ORISSA, CUTTACK

CRLMC NO. 2349 OF 2005

An application under section 482 of the Code of Criminal
Procedure, 1973 in connection with Criminal Revision No.12 of
1995 and Criminal Misc. Case No.17 of 1998 disposed of by Addl.
Sessions Judge, Bolangir.
—————————–

Dolamani Bariha ……… Petitioner

-Versus-

Bisakha Bariha ……… Opposite party

For Petitioner: – Mr. B.S. Dasparida

For Opp. Party: – None
—————————–

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO

—————————————————————————————————

Date of Hearing Judgment: 11.12.2017

—————————————————————————————————

S. K. SAHOO, J. Heard Mr. B.S. Dasparida, learned counsel for the

petitioner.

None appears on behalf of the opposite party.

The petitioner Dolamani Bariha has filed this

application under section 482 of Cr.P.C. challenging the

impugned order dated 27.04.2005 passed by the learned Addl.

Sessions Judge, Bolangir in Criminal Misc. Case No.17 of 1998 in
2

dismissing the misc. case filed by the petitioner under section

362 of Cr.P.C. for correction of the judgment and order dated

01.05.1996 passed by the said Court in Criminal Revision No.12

of 1995.

The factual scenario of the case is that the petitioner

is the husband of the opposite party Bisakha Bariha. The

opposite party filed a petition under section 125 of Cr.P.C. which

was registered as Misc. Case No.33 of 1992 in the Court of

learned S.D.J.M., Patnagarh claiming monthly maintenance

against the petitioner. It is stated in the petition that she earlier

instituted a case under section 125 of Cr.P.C against the

petitioner which was registered as C.M.C. No.24 of 1978 in the

Court of learned S.D.J.M., Patnagarh which was disposed on the

terms of compromise between the parties on 13.01.1983.

Subsequently, in the changed circumstances, the opposite party

filed the aforesaid Misc. Case No.33 of 1992 claiming monthly

maintenance @ Rs.400/- and the learned S.D.J.M., Patnagarh

allowed the Misc. Case vide judgment and order dated

11.01.1995 and directed the petitioner to pay a sum of Rs.500/-

per month to the opposite party towards her maintenance with

effect from the date of filing of the Misc. Case i.e. from

15.09.1992. The order was challenged by the petitioner before

the Court of Session and it was registered as Criminal Revision
3

No.12 of 1995 in the Court of learned Sessions Judge, Bolangir

and was transferred to the learned Addl. Sessions Judge for

disposal. The learned Addl. Sessions Judge, Bolangir in the

operative portion of the judgment and order dated 01.05.1996

held as follows:-

“4. In view of my finding that the petition of
C.M.C.33/92 is barred by res judicata and for
the same reason, I do not want to discuss other
grounds though those are having merits,
because the learned lower Court had granted
excess allowance to the wife than the allowance
claimed by her. She prayed to get maintenance
allowance at the rate of Rs.400/- per month but
the learned S.D.J.M. has awarded Rs.500/- as
monthly allowance. Besides that the learned
S.D.J.M. has not considered the assets given to
the wife and the probable income out of the
same to compute the balance. Learned counsel
for the petitioner is therefore, correct in his
submission that the order of the learned
S.D.J.M., was illegal and incorrect.

5. In the result, the revision is dismissed on
merit and without cost.”

It is contended by the learned counsel for the

petitioner that in view of the finding arrived at paragraph 4,

though the revision petition should have been allowed on merit,
4

the learned revisional Court mentioned in paragraph 5, the

revision to be dismissed on merit and for that reason the

petitioner filed Criminal Misc. Case No.17 of 1998 under section

362 of Cr.P.C. on the ground that the word ‘dismissed’ in para 5

of the judgment passed in Criminal Revision No.12 of 1995 is

nothing but a clerical error and therefore, it should be corrected

as ‘allowed’ inasmuch as there is no bar under section 362 of

Cr.P.C. to make such correction but the learned Addl. Sessions

Judge, Bolangir vide impugned order dated 27.04.2005 held that

a criminal Court is not authorized to review or alter its own

judgment or order and accordingly, dismissed the Misc. Case on

the ground that it is not at all maintainable. It is further

contended that the learned revisional Court has committed

illegality in not correcting the clerical error.

Section 362 of Cr.P.C. reads as follows:-

“Section 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 judgment or final
order disposing of a case, shall alter or review
the same except to correct a clerical or
arithmetical error.”

The Hon’ble Supreme Court in case of Smt. Sooraj

Devi -Vrs.- Pyare Lal and another reported in A.I.R. 1981
5

Supreme Court 736 has explained the meaning of phrase ‘a

clerical or arithmetical error’ and it has been held that it is an

error which is occasioned by an accidental slip or omission of the

Court. It represents that which the Court never intended to say.

It is an error apparent on the face of the record and does not

depend for its discovery on argument or disputation. An

arithmetical error is a mistake of calculation and a clerical error

is a mistake in writing or typing. Therefore, in view of section

362 of Cr.P.C. only clerical and arithmetical error can be

corrected and an order passed after hearing the parties cannot

be a recalled under section 362 of Cr.P.C.

Section 362 of the Code of Criminal Procedure

prohibits reopening of a final order except in the cases of clerical

or arithmetical errors.

In case of State of Punjab -Vrs.- Davinder Pal

Singh Bhullar and Ors. reported in (2012) 51 Orissa

Criminal Reports (SC) 220, it is held as follows:-

“30. Thus, the law on the issue can be
summarised to the effect that the criminal
justice delivery system does not clothe the Court
to add or delete any words, except to correct the
clerical or arithmetical error as specifically been
provided under the statute itself after
pronouncement of the judgment as the Judge
6

becomes functus officio. Any mistake or glaring
omission is left to be corrected only by the
appropriate forum in accordance with law.”

The High Court under section 482 Code of Criminal

Procedure is crowned with a statutory power to exercise control

over the administration of justice in criminal proceedings within

its territorial jurisdiction. The High Court can intervene where the

abuse of the process of any Court is located and the same can be

rectified by invoking such power. Such power can be exercised to

do the real and substantial justice, to do the right and to undo a

wrong in course of administration of justice. It is neither an

unfettered and arbitrary jurisdiction nor the High Court will act at

its whim or caprice.

On going through the judgment passed by the

learned Addl. Sessions Judge, Bolangir in Criminal Revision

No.12 of 1995, it is apparent that the learned revisional Court

held the case to be in favour of the petitioner in paragraph 4

after giving specific reasons and even gone to the extent of

holding that the learned counsel for the petitioner is correct in

his submission that the order of the learned S.D.J.M., Patnagarh

was illegal and incorrect. In view of such observation, it should

have been mentioned in paragraph 5 that the revision is

‘allowed’ instead of ‘dismissed’. I am view that a glaring clerical
7

error has been cropped up in paragraph 5 by mentioning the

word ‘dismissed’ instead of ‘allowed’ which the revisional Court

never intended to say so. It is an error apparent on the face of

the record.

Therefore, I find sufficient force in the contention of

learned counsel for the petitioner and set aside the impugned

order dated 27.04.2005 passed by the learned Addl. Sessions

Judge, Bolangir in Criminal Misc. Case No.17 of 1998 and direct

that in paragraph 5 of the judgment and order dated 01.05.1996

of the learned Addl. Sessions Judge, Bolangir passed in Criminal

Revision No.12 of 1995, the word ‘dismissed’ should be read as

‘allowed’.

With the aforesaid observation, the CRLMC is

disposed of.

…………………………

S. K. Sahoo, J.

Orissa High Court, Cuttack
The 11th December, 2017/Sukanta

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