® IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE10H DAY OF JANUARY, 2017 BEFORE THE HON’BLE Mr. JUSTICE K.N. PHANEENDRA CRIMINAL PETITION NO.4728/2015 BETWEEN:
1. IMRAN KHAN, S/O MOHAMMAD ALI JINNA, AGED ABOUT26YEARS, RESIDING OLD NO.64, (NEW22 PARAMANANDA STREET, 2ND FLOOR, SEVEN WELLS, CHENNAI-600001.
2. HAROON RASHID, S/O MOHAMMAD SALIM, AGED ABOUT31YEARS, NO.14, SAINT XAVIER STREET, 3RD FLOOR, SEVEN WELL, BROADWAY, PARAMAKUDLA, CHENNAI-600001. …PETITIONERS (BY SRI. H.MOHAN KUMAR, ADV.) AND: THE STATE OF KARNATAKA, REP. STATE BY FOREST DEPARTMENT, DEVANAHALLI RANGE, DEVANAHALLI-562110. (BY SRI.NASRULLA KHAN, HCGP) … RESPONDENT2THIS CRIMINAL PETITION IS FILED UNDER SECTION439OF CR.P.C., PRAYING TO ENLARGE THE PETITIONERS ON BAIL IN FOC NO.4/2015 OF FOREST DEPARTMENT, DEVANAHALLI RANGE, DEVANAHALLI, BENGALURU RURAL DISTRICT, FOR THE OFFENCE PUNISHABLE UNDER SECTIONS9 11, 39, 48-A, 49-B, 49-C & 51 OF WILD LIFE PROTECTION ACT1972AND ETC. THIS PETITION COMING ON FOR ORDER
S, THIS DAY, THE COURT PASSED THE FOLLOWING: ORDER
ON IA NO.1/2016 This application is filed under section 439(1)(b) of Criminal Procedure Code, 1973 (hereinafter referred to as “Cr.PC”, for short) in a disposed of petition seeking relaxation or setting aside the bail condition No.3 imposed vide order dated 30.7.2015.
2. This Court while passing the order on merits of the bail petition filed by the petitioners under section 439 of Cr.PC in connection with FOC No.4/2015 of Forest Department, Devanahalli Range, Devanahalli, Bengaluru Rural District for the offences punishable under sections 9, 11, 39, 48-A, 49-B, 49-C and 51 of Wildlife Protection Act, 1972, has imposed certain conditions, particularly, condition No.3 which is enumerated below. 3 “(3) Petitioners shall mark their attendance once in a month on the second Saturday before the I.O. between 10.00 a.m. and 5.00 p.m. till the completion of investigation.” 3. The learned Counsel for the petitioners submitted that the said condition is causing inconvenience to the petitioners and therefore the same may be relaxed.
4. This Court has raised a question as to – “Whether Interlocutory Application u/s.439(1)(b) of Cr.P.C. is maintainable in a disposed of matter?.” 5. The learned Counsel further submitted that earlier he had filed independent petition in Crl. Petition No.7568/2016 and this Court upholding the office objections with regard to the maintainability has dismissed the petition as not maintainable, therefore this present application is filed in the disposed of proceedings.
6. On careful perusal of the earlier petition and order passed in Crl. Petition No.7568/2016, office has 4 raised an objection that fresh criminal petition is not maintainable for modification of the order passed by the court. This court has not considered in detail with regard to the maintainability of the application or objections raised by the office, but the court has simply dismissed the petition as not maintainable without expressing any of its opinion.
7. As per the provision of Section 362(5) of Cr.P.C., the Court has no power to alter or review its judgment after it is signed. The same principle holds good in respect of final orders which are of the nature of judgment. After the Court has signed its judgment or final order disposing of a case, it shall not alter or review the same except to correct a clerical error or arithmetical error. The Court becomes functus officio after signing the judgment or order. This provision does not empower the Court to review its judgment or modify its order except in cases where the said order was passed without jurisdiction or in default of appearance without an adjudication on the 5 merits or to correct a clerical error. Therefore, it necessitated to consider the maintainability of the Interlocutory application. In my opinion, the order passed by this Court on merits considering the grounds urged therein, the court has imposed the conditions which are absolutely necessary at that particular point of time and accordingly imposing conditions, bail petition was disposed of by this court. Any modification or alteration of the order which are not clerical or arithmetical in nature, are not allowed under any of the provisions of Cr.PC.
8. Section 362 of Cr. PC which is the only provision which empowers the court to pass orders in a disposed of petition which reads thus: “362. Save as otherwise provided by this Code 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.” 6 9. The learned Counsel has not brought any other provision under Cr.PC under which, this Court can modify, alter or review its earlier order except the provision under section 362 of Cr.PC. Therefore, what is not granted under this particular provision cannot be done or invented by the court in order to pass such order. Section 362 of Cr.PC is a specific provision which prohibits the courts from altering or correcting its own Judgment or order except for correcting the typographical error. When specific provision prohibits the court from doing certain acts, it cannot be circumvented by the aid of any other provision under Cr.PC or by interpreting the provision in any other manner, as the said provision is very much clear. The said section clearly elucidates once the Judgment or order is disposed of and signed, the Court becomes functus officio.
10. The inherent powers of Section 482 of Cr.P.C. also cannot be invoked, reading the same with Section 439(1)(b) of CPC, the inherent powers u/s.482 of Cr.P.C. can only be used only where the alternative remedy is not available or there is no other specific provision which 7 enable the party to seek remedy before the Court. Section 439(1)(b) of Cr.P.C. is a disjunctive provision with reference to Section 439(1)(a) of Cr.P.C. It is an independent right given to the aggrieved person who can seek for modification or relaxation of the condition, in a bail Order. Therefore, the said provision being an independent, that cannot be read into the original order passed on the bail petition so as to invoke the same to modify or to relax any of the conditions imposed.
11. Moreover, the petitioners have approached this court for modification of condition No.3 which is a subsequent cause for action for the petitioners for relaxation or modification of the said condition imposed by the court. Therefore, the court has to independently apply its mind to the circumstances pleaded by the petitioners, whether they are entitled for relaxation or modification of the said condition or not. Therefore, the Court has to apply its mind independently after providing opportunity to the other side and then it has to pass an independent order under section 439(1)(b) of Cr.PC. At any stretch of 8 imagination, it cannot be said that such modification or relaxation of the condition amounts to only correcting the clerical error in the Judgment/order. When the provision cannot be interpreted in any other manner, in my opinion, the petitioners have to file separate petition for modification/alteration or relaxation of any condition in the earlier order passed by this court, under section 439(1)(b) of Cr.PC.
12. Therefore, I am of the opinion that this court earlier has not in detail considered this particular aspect which made me to consider the same. Accordingly, IA No.I/2017 is dismissed as not maintainable before this court and it is just and necessary to grant liberty to the petitioners to file necessary petition for relaxation of the condition afresh. AN/PL* Sd/- JUDGE