RABINDRA SABAR Vs. STATE

JUDGEMENT

(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.

(3.) Section 362 of the Code of Criminal Proce dure (in brief 'Code') states that save as otherwise provided by the 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. Despite the aforesaid legal bar, Shri Mishra relying on the judgment of this Court in Trilochan Dhal v. State, (1995) R OCR 57 contended that a Curt can re-hear the appeal if 'glaring mistakes' are detected in the judgment. In that case the learned single Judge recalled the previous judg ment 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 re corded in the previous judgment under Section 325, I.P.C. was modified to one under Section 323, I.P.C. 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 aforesaid case is against the pronouncements of the apex Court an State of Orissa v. Rama Chander Agarwala, AIR 1979 SC 87 : (1979 Cri LJ 33). In the case of Ram Chander (supra) this Court after passing the judg ment awarding substantive sentence of imprison ment 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 the inherent power under Section 482 of the Code (Section 561 of the old Code) cannot be invoked fox 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, (1993) 76 Cut LT 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 inasmuch 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 lawyer who was heard in the matter.