Bar U/S 362 CrPC is not absolute; The Court has inherent jurisdiction to set aside an order to secure the ends of justice: Orissa High Court

the Orissa High Court recently ruled that bar below Section 362 is not absolute and the same cannot be strictly applied to order reminder which are obtained by playing fraud on the court. While recalling an order obtained by means of false declarations of dates, a single judge bench composed of Judge Sashikanta Mishra detained,

“The position that emerges from a reference to the aforementioned case law is that the prohibition provided for in Article 362 of the Cr.PC is not absolute and, in any event, does not apply in the event of a recall It is undisputed that the inherent power of the High Court under Section 482 of the Cr.PC may be exercised if one of three conditions exists, namely, giving effect to any order under the Code, to prevent abuse of legal process or to secure the ends of justice.”

Factual background:

An application has been filed by the petitioners under Section 482 Cr.PC challenging the orders made by Sessions Judge-cum-Special Judge, Malkangiri. The applicants maintained that they had been arrested on 06.09.2020 and placed in police custody on the same day and that as such the period provided for 180 days for the completion of the investigation should expire on 03.03.2021 .

The special judge, ruling on a motion filed by the investigating officer (IO) and the special prosecutor (special PP), extended the said deadline on 02.03.2021 by 60 days. Accordingly, the extended period was to expire on 01.05.2021. On the said date, the accused had neither been brought before the special judge nor their right to be released on ‘default bond’ they have been notified, even though the indictment has not been filed. The indictment was submitted two days later, i.e. on 03.05.2021, which was accepted and the applicants were subsequently dismissed, thus ignoring their inalienable right under Article 167(2) PC cr..

The High Court, in view of the allegations, held that the extended period was due to expire on 01.05.2021 and that the defendants had not been brought before the Court or informed of their right to be released on bail despite the no-show of the prosecution sheet, granted the motion granting the petitioners freedom to move the trial court for bail with the further instruction that they will be released on bail on such terms and conditions as may be set by the trial court, including the condition that they personally appear before the trial court on each date of posting the case without fault.

Subsequently, this provisional application (AI) was filed. The state had taken the position that the defendants had been remanded in custody on 07.09.2020 and therefore 180 days should expire on 06.03.2021 and not 03.03.2021. The IO requested an extension of time by filing a request on 27.02.2021, which was authorized on 02.03.2021 for a period of 60 days, which was to expire on 05.05.2021. The charge sheet was submitted on 03.05.2021. On this basis, it was alleged that the defendants deliberately misrepresented the facts to mislead the Court in order to obtain the order in their favor and, therefore, said order should be set aside.

State Conflicts:

MSK Mishra, Addl. The permanent state attorney argued that the petitioners were guilty of misrepresentation. It was argued that the defendants were arrested on 06.09.2020 but presented on 08.09.2020 and therefore the 180 day deadline should expire on 03.03.2021. Taking the same as the completion period of the 180 day period, the extended period was mentioned as 01.05.2021 and since the billing sheet was submitted on 03.05.2021, the same is described as a submission after the expiration of two days.

He also drew the Court’s attention to the table of dates filed by the learned lawyer for the applicants, which is on file, in which the above facts were clearly noted. According to him, the motion for extension of time was filed and authorized before the expiration of the 180-day period and the indictment was also submitted before the expiration of the extended period and, therefore, no right irrevocable whatsoever has been acquired in favor of the applicants to be released by default. But by completely misrepresenting such facts, they got the order, which is nothing but a fraud played out in court. Therefore, he prayed for the order to be recalled.

Arguments of the Applicants:

Mr JK Pandalearned counsel appearing for the plaintiffs argued that the IA is not tenable in law for the reason that according to Article 362 PC cr.., the Court has no power to revoke its own order after it has been made, as this would be tantamount to sitting on appeal from its own order. However, he neither admitted nor denied the claims raised by the district attorney regarding the allegations of misrepresentation of dates mentioned above.

Issue raised for review:

Is the prohibition under Section 362, Cr.PC absolute? How does this ban work vis-à-vis the inherent power of the High Court?

Court’s observations:

The Court referred to the judgment of the Supreme Court in R. Rajeshwari vs HN Jagdish2008 (4) SCC 82in which it was held that, although a specific impediment had been created in respect of the exercise of the jurisdiction of the High Court to review its own order and, normally, the exercise of jurisdiction under the Section 482 of the Code of Criminal Procedure would be unwarranted, but in some rare cases the High Court may do so where a judgment has been obtained from it by defrauding it.

It was further held that there is an inherent distinction between varying or revising and recalling an order. In this regard, the Court relied on the decision Habu c. state of rajasthanAIR 1987 Raj 83, in which a full bench of the High Court of Rajasthan ruled that the power to revoke is different from the power to vary or revise the judgment. Further, in Pushpangathan v. State of Kerala2015 (3) KLT 105the Kerala High Court held that Section 362, Cr.PC does not affect the power of the High Court under Section 482, Cr.PC to revoke a judgment or order, if the legal grounds are properly established by the complaining party.

The Court ruled that an order obtained by fraud could not stand because that would amount to committing a gross illegality. Even if not, the High Court, as the Court of Record, has the inherent power to correct the record. Moreover, as a court of record, it has a duty to keep its records properly and in accordance with the law.

Further, it has been held that in the event of any apparent error being noticed by the High Court or brought to its notice in relation to any order made by it, the High Court has not only the power but the duty to correct it . It is a plenary power of the High Court being a Superior Court and a Court of Record. In support of the above proposition, the Court relied on the judgment of the High Court of Punjab and Haryana in Sher Mohd. Khan vs. Madan Lal & Anr., 2013 (4) CPR (Criminal) 5.

Accordingly, the Court went on to observe,

“Therefore, this Court cannot be persuaded to believe that it was an honest mistake on the part of the defendants to have miscalculated the date, rather, having regard to all the facts and circumstances noted above, it becomes more than evident that they had done so deliberately in order to obtain a favorable order. This is nothing but misleading the Court. Needless to say, without such deliberate misrepresentation, this Court would not have not made the order in question.

Therefore, the Court observed that the order in question was made by exercising a power under section 482 of the Code which is unquestionably a plenary power. Therefore, once it appears that the affected party was not entitled to the order made in their favour, which is nothing but an abuse of the legal process, it would be perfectly legal because also justified in invoking the same power under section 482 of the Code in order to prevent such abuses and secure the ends of justice. Accordingly, said order was revoked.

Case title: Siba Bisoi & Ors. c.State of Odisha

Case no: IA n° 2162 of 2021 (resulting from CRLMC n° 2123 of 2021)

Judgment dated: March 15, 2022

Koram: Judge Sashikanta Mishra

Counsel for applicants: Ms. Jugal Kishore Panda, SS Dash, B. Karna and AP Dash, lawyers

Counsel for the Respondent: MSK Mishra, Addl. Permanent Council

Quote: 2022 LiveLaw (Ori) 30

Thelma J. Longworth