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Mohammed Zakir v. Shabana And Ors

Mohammed Zakir v. Shabana And Ors

(Supreme Court Of India)

Criminal Appeal No. 926/2018 (Arising from SLP (Crl.) No. 10102/2017) | 23-07-2018

Kurian Joseph, J.

1. Leave granted.

2. We have heard the Petitioner, who is appearing in person, Mr. Joseph Aristotle S., learned Counsel appearing for Respondent Nos. 1 to 4 and Mr. Gopal Sankaranarayanan, learned Counsel, who was appointed as an amicus in this matter.

3. The Appellant is aggrieved since the High Court passed an order Under Section 362 Code of Criminal Procedure dated 28.04.2017 recalling its own order dated 18.04.2017. The order dated 28.04.2017 reads as under:

Notwithstanding Section 362 of Code of Criminal Procedure the order rendered by this Court earlier on 18.04.2017 is found to be patently erroneous and therefore the order is withdrawn. The petition is restored to file and the registry is directed not to webhost the order passed earlier and to take note of the fact that the order is withdrawn.

4. The High Court should not have exercised the power Under Section 362 Code of Criminal Procedure for a correction on merits. However patently erroneous the earlier order be, it can only be corrected in the process known to law and not Under Section 362 Code of Criminal Procedure The whole purpose of Section 362 Code of Criminal Procedure is only to correct a clerical or arithmetical error. What the High Court sought to do in the impugned order is not to correct a clerical or arithmetical error; it sought to rehear the matter on merits, since, according to the learned Judge, the earlier order was patently erroneous. That is impermissible under law. Accordingly, we set aside the impugned order dated 28.04.2017.

5. Now that the parties have appeared before us, we have ascertained that the Appellant approached the High Court, aggrieved by the notice issued by the Sessions Court on 25.01.2017 in Criminal Appeal No. 95/2017. Since the said appeal is pending before Principal City Civil and Sessions Judge, Bengaluru, we do not propose to deal with the matter on merits. Accordingly, we set aside the order dated 18.04.2017 passed by the High Court and dispose of this appeal with a direction to the Principal City Civil and Sessions Judge, Bengaluru to dispose of the Criminal Appeal No. 95/1997 expeditiously.

6. Pending applications, if any, shall stand disposed of.

Advocate List

  • For Appearing Parties: Gopal Sankaranarayanan, (A.C.), Shrutanjaya Bhardwaj, (A.C.), Joseph Aristotle S., Priya Aristotle and Payal N. Gaikwad, Advs.

  • For Appellant/Petitioner/Plaintiff: Party-in-Person

Bench
  • HON'BLE JUDGE KURIAN JOSEPH
  • HON'BLE JUDGE SANJAY KISHAN KAUL
Eq Citations
  • 2018 (3) KLJ 816
  • 2018 (3) ACR 2531
  • 104 (2018) ACC 969
  • 2018 (3) JLJR 357
  • 2018 (3) CRIMES 491 (SC)
  • 2018 (2) N.C.C. 707
  • 2018 (2) OLR 752
  • (2018) 15 SCC 316
  • 2019 (1) SCJ 511
  • 2018 (4) RCR (CRIMINAL) 456
  • 2019 -1-LW (CRL) 959
  • 2018 (9) SCALE 374
  • LQ/SC/2018/895
Head Note

Criminal Procedure Code, 1973 — S. 362 — Power of High Court to recall its own order — Scope of — High Court recalling its own order dt. 18042017, which was found to be patently erroneous — Held, High Court should not have exercised power under S. 362 for a correction on merits — However patently erroneous the earlier order be, it can only be corrected in the process known to law and not under S. 362 — Whole purpose of S. 362 is only to correct a clerical or arithmetical error — What High Court sought to do in the impugned order is not to correct a clerical or arithmetical error, it sought to rehear the matter on merits since according to the learned Judge the earlier order was patently erroneous — That is impermissible under law — Impugned order set aside — Constitution of India — Art. 136 — Criminal Procedure Code, 1973, S. 362