DEEPAK RATANSHI BHATIA Vs. NARAYAN ACHARYA

JUDGEMENT

(1.) THIS application has been preferred by the National Textile Corporation through its Senior Manager and in substance is for a relief that the earlier judgment of this Court in Criminal Writ Petition No. 814 of 1989 and Criminal Writ Petition No. 1891 of 1989 dated 27th November, 1990 be reviewed. The application is obviously one under section 362 Cr. P. C. though it is sought to be contended by Mr. Naren Thakore, the learned Counsel appearing on behalf of the applicants, that he is invoking the inherent jurisdiction of this Court under section 482 Cr. P. C.

(2.) BRIEFLY stated, the N. T. C. who are the applicants before me in this proceeding had instituted criminal proceedings against the Directors of the Finlay Mills Ltd. , who were the registered owners of certain trade marks. The unit of the Mills had been taken over by the N. T. C. in which capacity they were manufacturing certain textile products to which the trade marks in question apply and it was the Corporations case that even though the accused were the registered owners of the trade marks that they cannot be permitted to use the same. It was pointed out to the trial Court that the products in question which were being manufactured elsewhere had been using the same trade mark and that consequently the accused were criminally liable since the Corporation contended that the rights and the trade marks in question had vested in them on take over of the units as the same constituted property. The accused moved the High Court for quashing of the criminal proceedings, inter alia, contending that they were within their legal rights in using the trade marks in question as they were the registered owners of the same and that regardless of the take over of the unit, that the law could not preclude them from exercising those rights. The matters was hotly contested and this Court through a detailed judgment running into as many as 57 pages substantially upheld the contentions canvassed by the accused and quashed the criminal proceedings. If the respondents were aggrieved by the findings in that judgment, obviously they ought to have carried the matter higher which was not done. On 27-1-1992 the present Review Application was filed which was virtually 14 months after the decision of the case through the earlier judgment. Since the Review Application had to be heard by the same Judge who had decided the earlier matter, the same was kept pending by the office, until I was sitting singaly on the criminal side.

(3.) IT is relevant to point out that the office has raised a preliminary objection with regard to the maintainability of the present application by specifically pointing out that section 362 of the Code of Criminal Procedure prescribes a total bar to any alteration of a final judgment that has been signed except when it comes to correction of a clerical or an arithmetical error. My attention has been drawn to two judgments of the Supreme Court reported in A. I. R. 1979 Supreme Court, page 87 in the case of (State of Orissa v. Ram Chander Agarwala) wherein it has been laid down that the High Court has no power to review its order or judgment and further that the inherent powers cannot be invoked for exercise of the power of a Court to review a judgment and order. Again in A. I. R. 1981 Supreme Court, page 736 in the case of (Smt. Sooraj Devi v. Pyarelal and others) it has been laid down that the power to review for clerical or arithmetical errors, cannot be enlarged even by invoking the inherent powers of the Court under section 482 Cr. P. C. In not one but two judgments, the first of them being in the case of (Suresh T. Kilachand v. The State of Maharashtra) reported in 1991 Maharashtra Law Journal, page 1547 and the second in the case of (Sunder Lalwani v. State of Maharashtra) reported in 1991 Criminal Law Journal, page 2015, the relevant provisions of law and the case law on the subject have both been discussed and considered thread bare and I have taken the view that it is impermissible to alter a final judgment having regard to the express bar prescribed by section 362 of Cr. P. C. Furthermore, I have held that this bar cannot be surmounted by having recourse to the provisions of section 482 Cr. P. C. Relying on a Full Bench decision of the Rajasthan High Court and a Division Bench decision of the Karnataka High Court a submission had been advanced by the learned Counsel in those cases that in the interest of justice it was permissible to recall a judgment by virtue of the powers vested in the High Court under section 482 Cr. P. C. Distinguishing these judgments, I have held in the second of the cases referred to supra that there is no distinction between an order of recall and a review and that under these circumstances merely by using different terminology, one cannot indirectly achieve what is not permitted to be done directly.