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Smt.Usha Pandey And Another vs State Of U.P.& 2 Ors. on 23 March, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH

A.F.R.

Court No. – 9

Case :- U/S 482/378/407 No. – 2657 of 2008

Applicant :- Smt.Usha Pandey And Another

Opposite Party :- State Of U.P. 2 Ors.

Counsel for Applicant :- T.N.Tiwari

Counsel for Opposite Party :- Govt.Advocate,Anil Kumar Shukla,Rajiva Dubey,Salil Kumar Srivastava],Waseem Ahmad

Hon’ble Devendra Kumar Upadhyaya,J.

Heard Shri Lohitaksh Shukla, learned counsel appearing for the applicants in Criminal Misc. Application No.31185 of 2017 (petitioners in main petition filed under Section 482 of Cr.P.C.). These applicants will hereinafter be referred to as ”the petitioners’. Learned Additional Government Advocate representing the State of Uttar Pradesh and Shri Rajiva Dubey, learned counsel representing the opposite party no.3-Rajesh Kumar Pandey have also been heard.

Misc. Application No.31185 of 2017 prays for recalling the order dated 01.09.2014 passed by this Court, whereby the petition under Section 482 of Cr.P.C. was disposed of with liberty to the petitioners to file a fresh petition before this Court.

At the outset, learned counsel appearing for the opposite party no.3-Rajesh Kumar Pandey has submitted that in view of the bar contemplated under section 362 of Cr.P.C., once the main petition under section 482 of Cr.P.C. was disposed of by this Court vide order dated 01.09.2014, this Court has become functus officio and as such the application moved seeking recall of the said order is not maintainable and is liable to be rejected.

Before adverting to the rivals submissions advanced by the learned counsel appearing for the respective parties on the scope of applicability of section 362 of Cr.P.C. so far as the present miscellaneous application seeking recall of the order dated 01.09.2014 is concerned, the facts, which are relevant for consideration of the entire matter, are being noticed hereunder.

Petitioners, Smt. Usha Pandey and Anurag Pandey, are wife and son of opposite party no.3. On account of certain matrimonial discord, it appears that the petitioners and opposite party no.3 have not been living together. It appears that the petitioners were since not left with any means to maintain themselves, invoked the provisions of section 125 of Cr.P.C. and accordingly moved an application before the learned Magistrate for award of maintenance for themselves, who are wife and son respectively of opposite party no.3. The factum of marriage of the petitioner no.1 with opposite party no.3 and the petitioner no.2 being son having born out of their wedlock has not been denied. The learned Magistrate tried the application moved under section 125 of Cr.P.C., and finally allowed the same by means of the final judgment and order dated 22.03.2005, whereby he ordered that opposite party no.3 shall pay Rs.1000/- per month to the petitioner no.1 and shall also pay a sum of Rs.400/- per month to the petitioner no.2 from 29.03.2001 till he attained the age of majority. The aforesaid order dated 22.03.2005 passed by the learned Magistrate was challenged by the opposite party no.3 by filing a revision petition before the revisional court under section 397 of Cr.P.C. The said revision petition was allowed by the learned revisional court, namely, Special/Additional Sessions Judge, Lakhimpur Kheri by means of an order dated 09.05.2008, whereby the order passed by the learned Magistrate dated 22.03.2005 allowing the application for maintenance was set aside. Challenging the said order dated 09.05.2008 passed by the revisional court, the petitioners instituted these proceedings under section 482 of Cr.P.C. and the same was registered as Crl. Misc. Case No.2657/2008.

This Court while entertaining the petition under section 482 of Cr.P.C., filed by the petitioners initially, passed an order of interim stay on 24.07.2008 providing therein that till the next date of listing the order dated 09.05.2008 passed by the Special/Additional Sessions Judge, Lakhimpur Kheri, whereby the revision petition preferred by the opposite party no.3 against the order of the learned Magistrate was allowed, shall remain stayed.

The petition under section 482 of Cr.P.C. was, however, decided on 01.09.2014 by this Court by observing that the order dated 09.05.2008 passed by the revisional court may be challenged under writ jurisdiction of this Court. While making such observation, the Court disposed of the petition under section 482 of Cr.P.C. with liberty to the petitioners to file a fresh writ petition before this Court. Thereafter the petitioners preferred a writ petition challenging the order passed by the revisional court dated 09.05.2008. The said writ petition was registered as Writ Petition No.7676 (M/S) of 2014. In this petition as well the Court initially passed an order on 09.12.2014 whereby the operation of the revisonal court’s order dated 09.05.2008 was stayed. The writ petition was, however, dismissed as not pressed with liberty to avail legal remedy available to the petitioners under law.

It is after dismissal of the said Writ Petition No.7676 (M/S) of 2014 by this Court vide order dated 10.03.2017, that Crl. Misc. Application No.31185/2017 has been moved by the petitioners seeking recall of the order dated 01.09.2014. It is in the wake of the aforesaid background facts that the Court has been called upon to decide as to whether the application for recall in this case is maintainable having regard to the overall facts and circumstances of the case and also in the wake of the statutory bar created under section 362 of Cr.P.C.

It has been contended by the learned counsel for the petitioners that after dismissal of the writ petition on 10.03.2017, the petitioners are left with no other remedy but to seek recall of the order dated 01.09.2014 and in case this recall is not granted by this Court, the petitioners shall be rendered remediless. He has further stated that Writ Petition No.7676 (M/S) of 2014 was dismissed as not pressed for the reason that Hon’ble Supreme Court in a judgment rendered on 26.02.2015 in the case of Radhey Shyam and another vs. Chhabi Nath and others (Civil Appeal No.2548 of 2009) has laid down the legal proposition that a writ of certiorari under Article 226 will be impermissible to be sought against the judicial orders passed by the civil courts. His submission is that it is only on account of the later development of law enunciated by Hon’ble Supreme Court in the case of Radhey Shyam and another (supra), which was pronounced subsequent to the filing of Writ Petition No.7676 (M/B) of 2014, that the petitioners did not press the writ petition, however, while doing so the petitioners were granted liberty to avail legal remedy, which may be available to them.

Opposing the very maintainability of this application, learned counsel appearing for the opposite party no.3 has emphatically argued that section 362 of Cr.P.C. clearly bars entertaining any such application seeking recall of an order passed earlier by this Court.

Drawing attention of this Court to the language applied in section 362 of Cr.P.C., learned counsel representing the opposite party no.3 has argued that under the statutory scheme as contemplated in section 362 of Cr.P.C., no Court is empowered to alter or review any of its judgment or final order except to the limited extent of correcting a clerical or arithmetical error. He has, thus, submitted that the word “Court” occurring in section 362 of Cr.P.C. would include High Court as well in exercise of its jurisdiction under section 482 of Cr.P.C. It has vehemently been argued by the learned counsel for the opposite party no.3 that the orders sought to be recalled by moving Criminal Misc. Application, i.e. the order dated 01.09.2014 may not be a judgment, however, it is certainly a final order and hence, no alteration in the said order is permissible in view of the statutory bar created by section 362 of Cr.P.C. He has, thus, further argued that in case the application moved by the petitioners is granted by this Court, the Court would be exceeding its jurisdiction and will be exercising the powers, which is not statutorily vested in it.

Reliance on several judgments has been placed by the learned counsel appearing for the petitioners as also by the learned counsel representing the opposite party no.3, who has vehemently argued and opposed the grant of prayer made by the petitioners in Criminal Misc. Application.

There is no doubt that the correct and true purport of the legal position emanating from a bare reading of section 362 of Cr.P.C. is that no Court, which expression shall include the High Court, is legally empowered or has any jurisdiction to alter or review any “judgment” or “final order disposing of a case”. The alteration in any judgment or final order is permissible only to the extent of making any correction of a clerical or arithmetical error. The bare reading of section 362 of Cr.P.C. thus, gives a clear idea without any ambiguity that any order passed or judgment rendered cannot be permitted to be altered or reviewed in substance. Language applied in section 362 of Cr.P.C. uses two words/phrases, which are relevant to be noted and are also significant for appropriate adjudication of the rival submissions made by the learned counsel for the parties. These words are (i) “judgment” and (ii) “final order disposing of a case”. As to whether the order dated 01.09.2014, whereby the petition filed under section 482 of Cr.P.C. was disposed of with liberty to the petitioners to file fresh writ petition, is a judgment, is not in dispute. The order dated 01.09.2014 does not decide any issue between the parties; neither does it consider the rival contentions and submissions of the parties to these proceedings on merit. In other words, it can safely be said that the said order dated 01.09.2014 does not decide any lis between the parties. It certainly cannot be termed to be a judgment.

At this juncture, learned counsel for the opposite party no.3 has stated that it is not only that in case of a judgment that the bar of section 362 of Cr.P.C. shall operate but the said bar will operate in cases where any final order disposing of the case has been passed. His submission is, thus, that by the order dated 01.09.2014 the case was finally disposed of by this Court in exercise of its jurisdiction under section 482 of Cr.P.C. as such the order dated 01.09.2014 is final order disposing of the case and hence, the bar of section 362 of Cr.P.C. will operate even in this case with its full force.

To appreciate the contention of the learned counsel representing the opposite party no.3, regard may be had to a judgment dated 05.08.2015 rendered by this Court in a petition under 482 of Cr.P.C. namely, Petition No.1994 of 2011, Jawahar Lal @ Jawahar Lal Jalaj vs. State of U.P. and others. In the said case, the Court was confronted with the issues of operation of bar of section 362 of Cr.P.C. on an application moved seeking recall of an order, whereby the petition under section 482 of Cr.P.C. was dismissed for non-prosecution. After reviewing the entire law on the subject, it was clearly held by this Court in the case of Jawahar Lal @ Jawahar Lal Jalaj (supra) that the bar created by section 362 of Cr.P.C. will not operate so far as an application seeking recall of an order whereby the petition stood dismissed in default, is concerned. The Court taking into account various judgments of Hon’ble Supreme Court and other Hon’ble High Courts has clearly held that such an order dismissing a petition in default cannot be termed as judgment for the reason that judgment should contain not only the facts and pleadings but also evidence and further that for terming an order to be judgment, it would be required that there should be marshaling of facts as well as appreciation of evidence. The Court, thus, expressed opinion in the said case of Jawahar Lal @(Jawahar Lal Jalaj (supra) that if any petition stands dismissed for non-prosecution and the application for recall is allowed, such an order will not come within the meaning of the words “alter” or “review” as can be found mentioned in section 362 of Cr.P.C.

Learned counsel representing the opposite party no.3 has laid great emphasis on the phrase “final order disposing of a case” and has submitted that the order dated 01.09.2014 since disposed of the petition filed by the petitioner under section 482 of Cr.P.C., the same shall be termed to be a final order disposing of the case and hence petitioners cannot escaped from clutches of the bar created by section 362 of Cr.P.C.

The expression of “judgment” and “final order disposing of a case” may not be synonymous, however, in case an order by the Court is passed not on merits, neither deciding any issue may be an interlocutory issue, or a question of law, the same cannot be termed, in my considered opinion, to be a final order disposing of a case. In case an order is passed in some proceedings dismissing the proceedings so initiated on the ground of availability of any alternative remedy, such an order does not decide any issue or question of fact or law on merits. Such an order cannot be said to be a final order disposing of a case. The proceedings instituted in such a situation gets terminated by an expressed opinion of the Court only on the ground of availability of some alternative remedy available to such a person initiating the proceedings.

In civil law, for example, in case a suit is presented before a court, which does not have jurisdiction to try such a suit, in terms of the procedure as prescribed in the Code of Civil Procedure; appropriate course available to the Court is to return the plaint to be filed before a court of competent jurisdiction. If the Court in such a situation finds that it does not have the jurisdiction, it will return the plaint to the plaintiff to be presented and filed before the court of competent jurisdiction and such an order can not be termed to be a final order disposing of a case. If the facts of this case are analyzed, somewhat similar situation emerges. The petition preferred by the petitioners challenging the revisional order dated 09.05.2008 was disposed of only and only on the ground that against such an order the petitioners may prefer a writ petition and accordingly such liberty to file a fresh petition was granted to the petitioners by this Court while petition under section 482 of Cr.P.C., was disposed of by means of the order dated 01.09.2014. The order dated 01.09.2014 neither adverts to the facts of the case or to the evidence available or the pleadings by the respective parties, nor does it make any discussion of the respective cases put forth by the parties on merits. The order rather, only disposes of the petition giving liberty to the petitioners to file a fresh writ petition.

When the petitioners approached this Court after the order dated 01.09.2014 by filing a writ petition under Article 226 of the Constitution of India challenging the order dated 09.05.2008 passed by the revisional court, the writ petition was dismissed; rather it was dismissed as withdrawn with liberty to the petitioners to seek appropriate remedy, which may be available to them under law. The said order dismissing the writ petition on 10.03.2017 has been passed only on account of the later development of law whereby the Hon’ble Supreme Court in the case of Radhey Shyam and another (supra) has clearly held that writ of certiorari under Article 226 of the Constitution of India may not be available to a person aggrieved by an order passed by the civil court.

In case the application by the petitioners is not allowed and this petition under section 482 of Cr.P.C. is not restored, the petitioners shall be rendered remediless without there being any fault on their part or without there being any fault, which can be said to be attributed to them in seeking redressal of their grievances against the order dated 09.05.2008, passed by the revisional court.

As observed above, the matter relating to bar of section 362 of Cr.P.C. has been dealt with elaborately by this Court in the case of Jawahar Lal @ Jawahar Lal Jalaj (supra) the relevant observations made by this Court in the said case are quoted hereunder:

“Certainly, if any petition has been dismissed for want of prosecution or in default of the petitioner and the reasons for decision have not been rendered after applying the mind to the pleadings of the case as well as the grounds of petition, that order of dismiss in default cannot be termed as ‘Judgment’ because the judgement should contain not only the facts and pleadings of the case but also the documentary as well as oral evidence. In the judgment, it is required that there should be marshalling of the facts as well as appreciation of the evidence in respect of the determination of the matter in issue. The judge is also required to give reasons for its decision after looking into the various probabilities as well as cogent reasons for relying or not relying the contention and evidence of either party.

The process of judgment involves the following stages:

I. Collection of Facts;

II. Time Sequencing of Facts

III. Shifting facts from opinions

IV. Marshalling of Facts

V. Find out the Problems (Charge/Issues)

VI. What is the main problem (Charge/Issue)

VII. Record of Evidence

VIII. Churning of Evidence

IX. Shifting of Evidence

X. Weighing the different alternatives

XI. Apply Precedents

XII. Look into Prohibitions

XIII. Findings and Conclusions

XIV. Order.

In the present case, the petition has been dismissed for want of prosecution, although opportunity of hearing was given but that opportunity of hearing could not be availed due to sudden illness of the counsel. The inherent power under section 482 Cr.P.C. can be exercised to give effect to any order under Cr.P.C. or to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Certainly, if the application has been dismissed for default, that cannot be termed as ‘judgement’.

Accordingly, the bar as provided by section 362 Cr. P.C. shall not be applicable. This court has power to dismiss in default any application or writ petition and at the same time has also power to restore such proceedings on sufficient grounds being shown for non-appearance provided it appears to the court that default was not wilful and it was accidental. There are instances, where either legal advise is given or due to shrewd character of the litigant malafide efforts are adopted with a view to delay the proceedings of the case, such tactics are also adopted to get the case dismissed in default and then to move application for restoration and thus, lingering on the proceedings. Certainly, such practice must be carved out and should not be permitted to continue.

The views expressed by the various High Courts in the aforesaid decisions are in favour of the restoration of such petition, which has been dismissed in default in exercise of powers under section 482 of the code of criminal procedure with a view to secure the ends of justice and I am also in respectful agreement with the views expressed by the various High Courts in the aforesaid decisions.

Therefore, I am of the view that if any petition has been dismissed in default and the application for recall is made, then it will not come within the meaning of words ‘alter’ or ‘review’ as expressed in Section 362 of the Code. Accordingly, such orders may be recalled or set aside provided the intention of the parties is bonafide i.e. party who has moved the application for recall or restoration is not unnecessary lingering on the proceedings malafidely or that interim order or stay order, if any, is not being misused. ”

I may also refer to yet another judgment dated 11.08.2014 rendered by this Court in Transfer Application (Criminal) No.64 of 2008, Rakesh Srivastava “Nyayik” vs. State of U.P., wherein distinction between review and recall has been discussed. The Court in the said case has further observed that in a recall application the Court does not go into the merit and simply recalls an order, referring to a judgment rendered by Hon’ble Supreme Court in the case of All Bengal Licensees Association vs. Raghabendra Singh and others [AIR (2007) SC 1386]. The Court has observed that section 362 of Cr.P.C. cannot be considered in a rigid and over-technical manner to defeat the ends of justice. In the instant case, if the application seeking recall of the order dated 01.09.2014 is not entertained, the same would render the petitioners remediless, which would certainly defeat the ends of justice.

Submission of learned counsel representing the opposite party no.3 opposing the Crl. Misc. Application also runs contrary to the well established principle of “Excess to Justice to All.” The facts of this case have created a situation where the petitioners at this juncture appear to be remediless. Such a situation has not been envisaged either by the legislature or by the constitutional scheme under Constitution of India.

Shri Rajiva Dubey, learned counsel representing the opposite party no.3 has relied upon three judgments of Hon’ble Supreme Court. These case are, (i) State Represented by DSP, SB CID, Chennai vs. K.V. Rajendran and others [(2008) 8 SCC 673] (ii) Hari Singh Mann vs. Harbhajan Singh Bajwa and others, [(2001) 1 SCC 169] and (iii) Smt. Sooraj Devi vs. Pyare Lal and another [(1981) 1 SCC 500].

So far as the legal proposition enunciated by Hon’ble Supreme Court in the aforesaid judgments is concerned, the same is undisputable, however, for entertaining an application seeking recall of an order which is neither “judgment nor can be termed to be a final order deciding a case”, the bar of section 362 of Cr.P.C., as noticed above, cannot come in the way of passing an order, which ultimately meets the ends of justice. So far as the case of State Represented by DSP, SB CID, Chennai (supra) is concerned, in para 22 of the said report, Hon’ble Supreme Court has clearly noticed that exercise of power under section 482 of the Cr.P.C. cannot be exercised to reopen or alter or an order disposing of a petition decided on merits in view of the bar created by section 362. Emphasis of Hon’ble Supreme Court in the said case, thus, is that the order, which cannot be altered or reopened in view of the bar of section 362 of Cr.P.C. should be in the nature where it decides the matter on merits. Admittedly, in the instant case, the order dated 01.09.2014 does not decide the matter on merits hence in my opinion having regard to the law laid down by Hon’ble Supreme Court in the said case of State Represented by DSP, SB CID, Chennai (supra) there is no impediment for entertaining the application for recall. The said judgment does not come to the rescue of the opposite party no.3. Referring to other two judgments cited by Shri Rajiva Dubey, learned counsel representing the opposite party n.3 I may only observe that in the aforesaid two cases as well review/recall or alteration of the orders was sought only once the Court had decided the matter on merits earlier. In the instant case since the order dated 01.09.2014 cannot be termed to be an order passed on merits, neither can it be termed to be a judgment or an order deciding the issue finally, the aforesaid judgments of Hon’ble Supreme Court will have no applications so far as the case of the opposite party no.3 as put forth by Shri Rajiva Dubey, learned counsel representing the respondent no.3 is concerned.

For the reasons aforesaid, Crl. Misc. Application No.31185/2017 deserves to be allowed. The said application is, thus, allowed. The order dated 01.09.2014 is set aside. The petition is restored to its original number.

Learned counsel appearing for the petitioners has now submitted that the order dated 09.05.2008 passed by the revisional court is amenable to revisional jurisdiction of this Court under section 397 read with section 401 of Cr.P.C.

Learned Additional Government Advocate and learned counsel representing the opposite party no.3 attempted to argue, though feebly, that the remedy of revision petition under section 397/401 of Cr.P.C. would not be available to the petitioners challenging an order dated 09.05.2008, however, their arguments are not found in consonance with the provisions of section 397/401 of Cr.P.C.

This petition under section 482 of Cr.P.C. is, thus, converted into a revision petition under section 397/401 of Cr.P.C.

Office is accordingly directed to re-register this petition as Revision Petition under the aforesaid provisions and place it before the appropriate bench in the next cause list showing the name of Shri T.N. Tewari as learned counsel for the revisionist and Shri Rajiva Dubey as learned counsel for the opposite party no.3.

Order Date :- 23.3.2018

akhilesh/

 

 

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