This court dismissed an interlocutory application seeking restoration of a dismissed criminal petition. The court held that Section 362 Cr.PC cannot recall orders passed on merit and found no grounds to recall the quashing order under Section 482 Cr.PC.
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GAHC010095952018
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : I.A.(Crl.) 369/2018
1:SANTA RAM RABHA S/O- LT BOKEL RABHA, R/O- 2 NO. NALAPARA, P.O. NALAPARA, P.S. BOKO, DIST- KAMRUP (ASSAM), 781123 VERSUS 1:RAMESH RABHA AND 3 ORS S/O- LT MOHESWAR RABHA AND R/O- 2 NO. NALAPARA LALMATI, P.O. NALAPARA, P.S. BOKO, DIST- KAMRUP, ASSAM, 781123 2:KABINDRA RABHA S/O- LT MOHESWAR RABHA AND R/O- 2 NO. NALAPARA LALMATI P.O. NALAPARA P.S. BOKO DIST- KAMRUP ASSAM 781123 3:BHUPEN RABHA S/O- LT MOHESWAR RABHA AND R/O- 2 NO. NALAPARA LALMATI P.O. NALAPARA P.S. BOKO DIST- KAMRUP ASSAM 781123 4:STATE OF ASSAM REP. BY P.P. ASSA
Advocate for the Petitioner : MR. M TALUKDAR Advocate for the Respondent : PP, ASSAM
BEFORE HONOURABLE MR. JUSTICE MIR ALFAZ ALI
ORDER
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Date : 04-09-2019
Heard the learned counsels for both the parties.
This interlocutory application has been filed purportedly under Section 362 read with Section 482 of the Cr.PC praying for restoration of the Crl. Petition No. 638/2017 by setting aside the order dated 10.04.2018.
The learned counsel for the applicant submits that the order dated 10.04.2018 was passed without hearing the present petitioner. The learned counsel for the respondent resisted the said submission and stated that there is no provision for recalling the order which has been passed on merit after hearing the parties.
The fact leading to the order dated 10.04.2018 was that the present petitioner lodged an FIR alleging that the opposite parties by violating the order of status-quo granted by the civil court, had entered into the suit property. The matter was investigated by the police and charge sheet was submitted under Section 188 read with Section 447 of the IPC, whereupon the learned Magistrate took cognizance. The said order of taking cognizance was challenged before this Court by filing a Criminal Petition No. 638/2017 stating that the learned Magistrate did not have the jurisdiction to take cognizance of the offence under Sections 188/447 of the IPC for violation of the status-quo order passed by the Court in absence of the complaint filed by the concerned court in view of Section 195 of the Cr.P.C.
The notice was issued to the respondents including the present petitioner. However, on the relevant date, the co-respondents’ side was represented by the Public Prosecutor. However the present petitioner remained absent. Upon hearing the learned counsel for both the parties, this Court allowed the said criminal petition and quashed the criminal proceeding in G.R. Case No.
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230/2015.
The contention of the learned counsel for the present petitioner is that he was not heard. It appears from the records that notice was duly served on the respondents. In spite of service of notice, the petitioner remained absent. Upon hearing the petitioner and the learned State counsel, the impugned order was passed. Therefore, the said order cannot be said to be an order of dismissal for default or an ex-parte order passed without hearing. Section 362 empowers the court only to correct any clerical or arithmetical error in the judgment and order. It does not permit recalling or setting aside any order passed on merit.
Even on the merit of the case, I do not find any reasonable grounds for recalling the impugned order in exercise of inherent powers conferred under Section 482 of the Cr.P.C. in as much as apparently the magistrate acted without jurisdiction while taking cognizance of offence under Section 188 of the IPC on the basis of charge sheet and in absence of complaint. Therefore, the present petition itself appears to be an abuse of process of the Court.
In view of the above, I find no merit in this petition and according, the same stands dismissed.
JUDGE
Comparing Assistant
2 issues framed by the court
Whether an interlocutory application under Section 362 Cr.PC can be used to recall an order passed on merit.
Whether Section 482 Cr.PC permits setting aside an order dismissing a criminal petition as abuse of process.
1 provisions across 1 enactments
SANTA RAM RABHA
RAMESH RABHA AND 3 ORS
MIR ALFAZ ALI
As recorded by the court registry
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