Dismissed

Kalupuri Chels v. State of Rajasthan

Rajasthan HC23 Jan 2020CRLMA/124/2011

Case brief

AI extract

What is this about?

The High Court dismissed a Criminal Miscellaneous Application seeking recall of an order granting bail in a disposed of Criminal Writ Petition. The Court held such applications are not maintainable, citing Section 362 Cr.P.C. and Supreme Court precedents barring review powers to High Courts except for clerical errors.

What did the court decide?

Application held not maintainable and dismissed.

Kalupuri Chels Vs State of Rajasthan — Civil Procedure and Limitation | Rajasthan HC (2020)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Criminal Miscellaneous Application No.124/2011

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S.B. Criminal Misc. Petition No.947/2011

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Kalupuri Chela Kanpuri, by caste Gusai, Resident of Bada Math, Via Bhaisawa, Tehsil Phulera, District Jaipur (Rajasthan)

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----Petitioner

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Versus

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The State of Rajasthan, through P.P.

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----Respondent

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For Petitioner(s) : Mr. D.S. Poonia For Respondent(s) : Mr. Ramsh Choudhary, PP For Applicant(s) : Mr. Mahesh Gupta

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Order

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23/01/2020

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This application has been filed by the complainant seeking recalling of order passed by this court dated 10.5.2011 in S.B. Criminal Misc. Petition No.947/2011 titled as Kalupuri Chela Kanpuri Versus State of Rajasthan.

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Learned counsel for the applicant submits that the order passed in the criminal misc. petition deserves to be recalled as the petitioner who approached this court has played fraud with the court as he was neither a person against whom warrants were issued nor he could have been in any manner aggrieved with the order passed by the learned ACJM, Sambhar Lake, Jaipur dated 27.1.2011. In view thereof, learned counsel submits that the order passed allowing the petition and converting the non-bailable

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(2 of 4)

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[CRLMA-124/2011]

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warrants to bailable warrants and setting aside of forfeiture of bonds, deserves to be recalled.

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Learned counsel appearing for the petitioner has relied on the judgment passed by the Supreme Court in the case of Nazma Versus Javed alias Anjum, 2013(1) SCC 376 to submit that this court would have no power to review/ recall its order passed in criminal proceedings as there is a specific bar under Section 362 Cr.P.C.

¶20

In the case of Akshay Kumar Singh Versus State (NCT of Delhi), 2019 SCC ONLINE 1653 , the Apex Court has examined the power and the scope of review and held that the Supreme Court would have power to review in criminal proceedings but the same is permissible only on the ground that there is any error on the face of the record. In Nazma Versus Javed alias Anjum (supra), the Apex Court considered the scope of review available to High Court under Section 482 Cr.P.C. and relying on the earlier judgment in Hari Singh Mann Versus Harbhajan Singh Bajwa, 2001 (1) SCC 169 , held as under:-

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“11. We are of the view that the High Court has committed a grave error in entertaining the criminal miscellaneous application No. 133306 of 2004 in a disposed of Criminal Writ Petition No. 5877 of 2003. Criminal Writ Petition No. 5877 of 2003 was disposed of on 25.9.2003 directing that the 1st Respondent should not be arrested until the conclusion of the investigation or submission of any report under Section 173 Code of Criminal Procedure. On an application filed by the 1st Respondent in that writ petition, the High Court later passed an order on 26.8.2004 stating that the Petitioner therein (1st Respondent) be not arrested until the conclusion of the trial. The practice of entertaining miscellaneous applications in disposed of writ petitions was deprecated by this Court in Hari Singh Mann

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(3 of 4)

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[CRLMA-124/2011]

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(supra). Reference to the following paragraph of that judgment is apposite:

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We have noted with disgust that the impugned orders were passed completely ignoring the basic principles of criminal law. No review of an order is contemplated under the Code of Criminal Procedure. After the disposal of the main petition on 7-1-1999, there was no lis pending in the High Court wherein the Respondent could have filed any miscellaneous petition. The filing of a miscellaneous petition not referable to any provision of the Code of Criminal Procedure or the rules of the court, cannot be resorted to as a substitute of fresh litigation. The record of the proceedings produced before us shows that directions in the case filed by the Respondents were issued apparently without notice to any of the Respondents in the petition. Merely because Respondent 1 was an Advocate, did not justify the issuance of directions at his request without notice of the other side. The impugned orders dated 30-4-1999 and 21-7-1999 could not have been passed by the High Court under its inherent power under Section 482 of the Code of Criminal Procedure. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the court.

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We are sorry to note that in spite of the clear pronouncement of law by this Court, still, the High Courts are passing the similar orders, which practice has to be deprecated in the strongest terms. of late, we notice that the High Courts are entertaining writ petitions under Articles 226 and 227 of the Constitution, so also under Section 482 Code of Criminal Procedure and passing and interfering with various orders granting or rejecting request for bail, which is the function of ordinary Criminal Court. The jurisdiction vested on the High Court under Articles 226 and 227 of the Constitution as well as Section 482 Code of Criminal Procedure are all exceptional in nature and to be used in most exceptional cases. The jurisdiction under Section 439 Code of Criminal Procedure is also discretionary and it is required to be exercised with great care and caution.

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(4 of 4)

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[CRLMA-124/2011]

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We are of the view that the High Court has committed a grave error in not only entertaining the criminal miscellaneous application in a disposed of writ petition, but also passing an order not to arrest the 1st Respondent till the conclusion of the trial. Grant of bail or not to grant, is within the powers of the regular Criminal Court and the High Court, in its inherent jurisdiction, not justified in usurping their powers. Once the criminal writ petition has been disposed of, the High Court becomes functus officio and cannot entertain review petitions or miscellaneous applications except for carrying out typographical or clerical errors. In the instant case, the High Court has entertained a petition in a disposed of criminal writ petition and granted reliefs, which is impermissible in law.”

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On perusal of Article 137 of the Constitution of India, this Court finds that the power available to review judgments or orders has been specifically granted by the Constitution to the Supreme Court. Further, no such power has been given to this Court either under Constitution or under the relevant provisions of Code of Criminal Procedure, 1973. Section 362 Cr.P.C. on the other hand specifically bars from altering or reviewing the order passed by the Court except to correct the clerical or arithmetical error.

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In view thereof, this criminal misc. application is held to be not maintainable and the same is, accordingly, dismissed. However, it would not preclude the applicant from taking other remedies, which may be available under the provisions of Cr.P.C.

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(SANJEEV PRAKASH SHARMA),J

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Karan Bhutani /531/36

Kalupuri Chels v. State of Rajasthan

Case brief

What is this about?

What did the court decide?

Kalupuri Chels v. State of Rajasthan

Case brief

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