Rabindra Sabar and anr. Vs. State - Court Judgment

Excerpt:
- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - the provision of section 362 of the code which clearly prohibits alteration or review of the judgment or final order except for the purpose of correcting a clerical or arithmetical error was not brought to the notice of the learned judge. ainul haque, 76 (1993) clt 390 wherein it has been held that power to recall could be exercised to secure ends of' justice in exceptional cases and if the court is satisfied that the same is necessary.orderr.k. patra, j.1. heard shri mishra, learned counsel for the appellant. 2. this is a petition by the convict- appellant sent from the jail praying for re-hearing of the appeal which has already been dismissed by this court by judgment dated 6-10-1994. section 362 of the code of criminal procedure (in brief 'code') states that save as otherwise provided by the code or by 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. despite the aforesaid legal bar, shri mishra relying on the judgment of this court in trilochan dhal v. state, (1995) 8 ocr 57 contended that a court can re-hear the appeal if glaring mistakes' are detected in the judgment. in that case the learned single judge recalled the previous judgment because glaring mistake had crept in. 'glaring mistake' according to the learned judge was the effect of non-consideration of evidence relating to absence of x-ray report and non-examination of the concerned doctor. on that basis the conviction recorded in the previous judgment under section 325, ipc was modified to one under section 323,1pc. with great respect, i may say that the view taken in the matter is not correct. the provision of section 362 of the code which clearly prohibits alteration or review of the judgment or final order except for the purpose of correcting a clerical or arithmetical error was not brought to the notice of the learned judge. the judgment rendered in the affore said case is against the pronouncements of the apex court in state of orissa v. ram chander agarwala, air 1979 sc 87. in the case of ram chander (supra) this court after passing the judgment awarding substantive sentence of imprisonment recalled the judgment on a petition filed by the convict and the substantive sentence of imprisonment was substituted by imposition of fine. the supreme court reversed the said order holding that the high court has no power to revise its own order. the court observed that once judgment has been pronounced by a high court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the code which would enable the high court to review the same or to exercise revisional jurisdiction. the court further held that tie inherent power under section 482 of the code (section 561 of the old code) cannot be invoked for exercise of power which is specifically prohibited by the code. shri mishra also refers to judgment of this court in state of orissa v. ainul haque, 76 (1993) clt 390 wherein it has been held that power to recall could be exercised to secure ends of' justice in exceptional cases and if the court is satisfied that the same is necessary. ainul haque was a case where the matter was disposed of without hearing the accused as if there was . no appearance on his behalf although he had appeared in the case through a lawyer. the ratio-of ainul haque (supra) cannot be extended to the facts of this case in as much as it is not the case of the appellant that he was not heard at the time of hearing of the appeal. it is an admitted fact that the appellant was represented by a lawer who was heard in the matter.the present is not a case to correct any clerical or arithmetical error which is permissible under section 362 of the code. . it is a case where the appellant seeks re-hearing of the appeal on some additional grounds. in view of the aforesaid legal position, i am afraid, his prayer cannot be conceded. accordingly, the petition, is rejected. the appellant may be informed accordingly.

Judgment:
ORDER

R.K. Patra, J.

1. Heard Shri Mishra, learned counsel for the appellant.

2. This is a petition by the convict- appellant sent from the Jail praying for re-hearing of the appeal which has already been dismissed by this Court by judgment dated 6-10-1994.

Section 362 of the Code of Criminal Procedure (in brief 'Code') states that save as otherwise provided by the Code or by 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. Despite the aforesaid legal bar, Shri Mishra relying on the judgment of this Court in Trilochan Dhal v. State, (1995) 8 OCR 57 contended that a Court can re-hear the appeal if glaring mistakes' are detected in the judgment. In that case the learned Single Judge recalled the previous judgment because glaring mistake had crept in. 'Glaring mistake' according to the learned Judge was the effect of non-consideration of evidence relating to absence of x-ray report and non-examination of the concerned doctor. On that basis the conviction recorded in the previous judgment under Section 325, IPC was modified to one under Section 323,1PC. With great respect, I may say that the view taken in the matter is not correct. The provision of Section 362 of the Code which clearly prohibits alteration or review of the judgment or final order except for the purpose of correcting a clerical or arithmetical error was not brought to the notice of the learned Judge. The judgment rendered in the affore said case is against the pronouncements of the apex Court in State of Orissa v. Ram Chander Agarwala, AIR 1979 SC 87. In the case of Ram Chander (supra) this Court after passing the judgment awarding substantive sentence of imprisonment recalled the judgment on a petition filed by the convict and the substantive sentence of imprisonment was substituted by imposition of fine. The Supreme Court reversed the said order holding that the High Court has no power to revise its own order. The Court observed that once judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code which would enable the High Court to review the same or to exercise revisional jurisdiction. The Court further held that tie inherent power under Section 482 of the Code (Section 561 of the Old Code) cannot be invoked for exercise of power which is specifically prohibited by the Code. Shri Mishra also refers to judgment of this Court in State of Orissa v. Ainul Haque, 76 (1993) CLT 390 wherein it has been held that power to recall could be exercised to secure ends of' justice in exceptional cases and if the Court is satisfied that the same is necessary. Ainul Haque was a case where the matter was disposed of without hearing the accused as if there was . no appearance on his behalf although he had appeared in the case through a lawyer. The ratio-of Ainul Haque (supra) cannot be extended to the facts of this case in as much as it is not the case of the appellant that he was not heard at the time of hearing of the appeal. It is an admitted fact that the appellant was represented by a lawer who was heard in the matter.

The present is not a case to correct any clerical or arithmetical error which is permissible under Section 362 of the Code. . It is a case where the appellant seeks re-hearing of the appeal on some additional grounds. In view of the aforesaid legal position, I am afraid, his prayer cannot be conceded. Accordingly, the petition, is rejected. The appellant may be informed accordingly.