@JUDGMENTTAG-ORDER
S.K. Dubey, J.
In Criminal Appeal No. 180/1987 filed by 14 accused persons, namely, Munshisingh, Babusingh, Prakashsingh, Kripalsingh, Hanumansingh. Bhagwansingh, Surendrasingh, Sundersingh, Pramodsingh, Narendrasingh, Indersingh. Devendrasingh alias Pooran, Jagveersingh and Rajendrasingh, against their conviction and sentences, a Division Bench of this Court of Hon''ble Shri K.K. Varma, J. now retired. and one of us (S.K. Dubey, J.). who delivered the judgment on 15-12-1992. dismissed the appeal of 8 accused persons, and after appreciating the evidence of the eye-witnesses and the medical evidence, acquitted those accused persons who were armed with lathis and stick, as their participation and infliction of lathi blows was found to be suspicious because of the omnibus statements of eye-witnesses including that of injured P.W.2 "Nattha, which was discrepant with the FIR (Ex. P-41) and medical evidence. But. in operative part of the judgment, out of six such accused, appeal of only five accused persons, namely, Hanumansingh alias Hamamsingh (appellant No. 5), Sundersingh (appellant No. 8), Indersingh (appellant No. 11), Jagvirsingh (appellant No. 13) and Rajendrasingh (appellant No. 14) was allowed.
Therefore, the applicant Babusingh son of Meharbansingh, aged about 80 years, who was one of the accused persons armed with lathi, having his appeal not been allowed, has preferred this application u/s 362 of the Code of Criminal Procedure for correction of clerical error occurred in the aforesaid judgment.
Shri B.L. Bhargava, learned counsel for the applicant submitted that an accidental or clerical error has crept in, as right from lodging of FIR (Ex. P-41) to eye-witnesses" account including that of injured P.W.2 Nattha, the prosecution case is that Bahusingh was armed with a lathi, who inflicted lathi blows. There is a discussion to that effect in the judgment in para 24, but this Court in paras 31 and 33, instead of writing six accused persons who were holding lathis, by accidental slip has mentioned as five; as a consequence of that only five accused persons have been acquitted leaving the applicant/appellant, therefore, the clerical error be corrected and the applicant''s appeal be also allowed and he be acquitted.
Shri S.B. Mishra, learned Government Advocate, who argued the appeal on behalf of the State, did not dispute that the accused Babusingh was armed with lathi, but, submitted that this Court after signing of the judgment has become functus officio. hence, has no jurisdiction to alter or review the same.
It is trite law that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against the judgment, as there is no provision in the Code which would enable the Court to review the same or to exercise the revisional jurisdiction because of the bar u/s 362 of the Code. See
It is also trite that the Court is not empowered to review its own decision under the purported exercise of inherent power u/s 482 of the Code, which is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. Section 362 of the Code expressly provides that 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 save as otherwise provided by the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. See : AIR 1990 SC 1605. Mosst. Simrikhia v. Smt. Dolley Mukherjee alias Smt. Chabbi Mukherjee and Anr..
A clerical or arithmetical error is an error occasioned by any accidental slip or omission of the Court. It represents that which the Court never intended to say. It is an error apparent on the face of the record and does not depend upon its discovery on arguments or disputation. An arithmetical mistake is a mistake of calculation and a clerical error is a mistake in writing or typing. See the decision of the Supreme Court in case of
In the background of the settled law, this Court is called upon to consider whether the application u/s 362 of the Code is for review? In our opinion, certainly not. The applicant is not seeking a judicial consideration which is outside the jurisdiction of the Court. Prayer of the applicant is only that because of clerical error by accidental slip, as he was not holding any fire-arm but was having a lathi which is the case of the prosecution right from the lodging of the FIR (Ex. P-41) and has been proved such by the prosecution by evidence oral and documentary, the number of such accused persons who were holding lathis and the stick was six, and not five. As I myself wrote the judgment, the Court never intended to say that the applicant is also to be convicted even in spite of being not armed with fire-arm, but, admittedly, with a lathi, therefore, it is nothing, but an error apparent on the face of the record which does not depend upon its discovery on arguments or disputation. Therefore, if the mistake is not corrected it will cause a great injustice to the applicant. It is one of the highest duties of all Courts, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case, to take care that the act of the Court does no injury to any of the parties, nobody should suffer for the act of the court "actus curiae neminem gravabit", that is, the maxim which fully applies to the facts of this case.
To exercise our power u/s 362 of the Code, we also place reliance on a recent unreported decision rendered in Criminal Case No. 854/92, decided on 2-4-1992, wherein the mistake was corrected which occurred in Criminal Appeal No. 227/1978, decided on 5-3-1992, as while hearing the said appeal the case of the appellant was only considered in respect to the conviction and sentence u/s 302/34, Indian Penal Code, and not against the conviction and sentence u/s 325/34, Indian Penal Code. The Court placing reliance on Ramchander''s case (supra) heard the appeal on merits and directed the accused persons not to surrender, as in the opinion of the Court, sentence already undergone was sufficient to meet the ends of justice.
In view of the aforesaid discussions, as the mistake is clerical, we allow the application u/s 362 of the Code and direct that the applicant/appellant Babusingh son of Meharbansingh need not surrender; he shall also stand acquitted of all the charges, his bail bonds shall stand discharged.
A copy of this order be annexed with the judgment in Criminal Appeal No. 180/1987, decided on 15-12-1992, as part of the judgment.
