Dismissed

State v. Sarvsheel Mago

Himachal Pradesh HC13 Nov 2024CRMP/4584/2024

Case brief

AI extract

What is this about?

Complainant sought direction for re-trial in an acquitted case whose appeal had been dismissed. The High Court held that Section 403 BNSS (Section 362 Cr.P.C.) bars alteration or review of a signed final judgment except for clerical or arithmetical error, and Section 528 cannot override this bar. Application dismissed; applicant free to approach the Supreme Court.

What did the court decide?

None granted; application dismissed with liberty to avail appropriate remedy including approaching the Supreme Court.

State Vs Sarvsheel Mago — Criminal Trial and Appeal | Himachal Pradesh HC (2024)

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2024:HHC:11455

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.M.P. No. 4584 of 2024

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Date of decision: 13. 11.2024

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State of H.P. …Petitioner. Versus Sarv Sheel Mago & others. …Respondents. Coram

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Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Hon’ble Mr. Justice Rakesh Kainthla, Judge.

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Whether approved for reporting?¹

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For the Petitioner. Mr.Varun Chandel, Additional Advocate General. For the Respondents : None. Complainant Mr.Sanjay Bhardwaj present in person.

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Vivek Singh Thakur, Judge (Oral)

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Notice. Mr.Varun Chandel, Learned Additional Advocate

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General waives service and accepts notice on behalf of non-applicant/appellant.

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Heard.

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This application has been filed on various grounds enumerated therein, seeking direction to send the Criminal case for re-

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1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes

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2024:HHC:11455

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Cr.MP No. 4584 of 2024

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trial in FIR No. 170, dated 30.10.2000, registered under Sections 307, 364, 506 and 34 of IPC in Police Station Barotiwala, District Solan, H.P..

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After registration of FIR, challan was presented before the Magistrate. On completion of trial, Additional Sessions Judge (Presiding Officer, Fast Track Court) Solan in case No. 30/FT/7 of 2004/2003, titled as State of H.P. Vs. Sarvsheel Mago & others had acquitted the accused persons.

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The aforesaid acquittal was assailed by State of H.P. by preferring the appeal under Section 378 of Cr.P.C. bearing Cr. Appeal No. 181 of 2005. The said appeal was dismissed by the Division Bench of this High Court vide judgment dated 18.7.2012. At the time of final hearing in the said appeal, complainant was duly represented by Advocates.

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Section 403 of Bharatiya Nagarik Suraksha Sanhita (earlier Section 362 of the Code of Criminal Procedure) provides as under:-

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“403. Save as otherwise provided by this Sanhita 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.”

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Though, applicant/complainant is putting reliance on provisions of Section 386 Cr.P.C. (now Section 427 of Bharatiya Nagarik Suraksha Sanhita) for making prayer to send the matter for re-trial, however, as apparent from the provisions of Section 403 of Bharatiya

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2024:HHC:11455

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Cr.MP No. 4584 of 2024

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Nagarik Suraksha Sanhita (Section 362 of Cr.P.C.), after signing the final judgment in present matter and disposing the appeal, this Court has no power to alter or review the same, except to correct a clerical or arithmetical error.

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Admittedly, in present application prayer has been made to send the matter for re-trial which, in the given facts and circumstances, shall amount reviewing the judgment already passed by this High Court by altering the same which is not permissible under law.

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Applicant has also relied upon judgments passed by the Supreme Court in Criminal Appeal No. 2388 of 2014 (arising out of S.L.P. (Crl.) No. 8852 of 2013), decided on 11.11.2014, titled as Nar Singh Vs. State of Haryana; Cr. Appeal Nos. 466-449 of 2004 (arising out of SLP(Crl.) Nos. 538-541 of 2004) decided on 12.4.2004, titled as Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and others; Criminal Appeal Nos. 119-122 of 2017, decided on 31.1.2017, titled as Ajay Kumar Ghoshal Etc. Vs. State of Bihar & Another; and Criminal Appeal No. 1091 of 2006, decided on 31.8.2012, titled as Mohd. Hussain @ Julfikar Ali Vs. State (Govt. of NCT) Delhi.

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The aforesaid judgments in given facts and circumstances of present case are not applicable as directions in aforesaid judgments

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2024:HHC:11455

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Cr.MP No. 4584 of 2024

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have been passed by the Supreme Court in appeals/petitions pending before the Supreme Court.

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Judgment of Madhya Pradesh High Court in CRR No. 229/2017, titled as Raja alias Sumit & others Vs. State of MP, has also been relied upon by applicant/complainant. The Direction in the said case has also been passed by the said High Court in a Criminal Revision being adjudicated by the said Court, but not after passing of final judgment.

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Present application has been preferred under Section 528 of Bharatiya Nagarik Suraksha Sanhita (earlier Section 482 of Cr.P.C.). It is also more settled that provisions of Section 482 Cr.P.C. (now Section 528 of Bharatiya Nagarik Suraksha Sanhita) cannot be invoked to render the provisions of Section 362 Cr.P.C. (Section 403 of Bharatiya Nagarik Suraksha Sanhita) redundant. When there is specific bar in provision of the statute i.e. Code of Criminal Procedure/Bharatiya Nagarik Suraksha Sanhita providing mandatory prohibition and mandatory limitation, the provisions of Section 482 Cr.P.C. (now Section 528 of Bharatiya Nagarik Suraksha Sanhita) cannot be invoked as a device to surpass the express provision of law creating inhibition to alter or review final judgment passed in this matter.

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2024:HHC:11455

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Cr.MP No. 4584 of 2024

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In any case for redressal of his grievance the applicant/complainant is free to avail appropriate remedy including approaching the Supreme Court as permissible under law.

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The application is dismissed and pending applications also

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stand disposed of in aforesaid terms.

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(Vivek Singh Thakur), Judge.

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(Rakesh Kainthla), Judge.

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13^th November, 2024

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(Keshav)

State v. Sarvsheel Mago

Case brief

What is this about?

What did the court decide?

State v. Sarvsheel Mago

Case brief

What is this about?

What did the court decide?

What the court decided

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Cases cited

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