Jammu & Kashmir High Court – Srinagar Bench
Ghulam Rasool Mir vs Ut Of J&K Th. P/S Pulwama & Ors on 7 April, 2025
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
Serial No. 04
Supplementary
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IN THE HIGH COURT OF JAMMU & KASHMIR AND
LADAKH AT SRINAGAR.
CrlM No. 1789/2024 in
CRM(M) No. 47/2024
Ghulam Rasool Mir.
..... Petitioner(s)
Through: -
Mr. Mushtaq Ahmad Dar, Advocate.
V/s
UT of J&K th. P/S Pulwama & Ors.
..... Respondent(s)
Through: -
CORAM:
HON'BLE MR. JUSTICE JAVED IQBAL WANI, JUDGE
ORDER
07.04.2025.
1. Through the medium of instant application, petitioner-
applicant herein seeks reviewing/recalling/rescinding of
the order dated 19th November, 2024 passed by this Court
in CRM(M) No. 47/2024, titled as “Ghulam Rasool Mir v.
UT of J&K &Ors“.
2. Facts necessary for disposal of the instant application,
emerging from the record would reveal that the applicant
herein being petitioner in the aforesaid CRM (M) No.
47/2024 had invoked inherent jurisdiction of this Court,
enshrined in Section 482 Cr. P.C, having called in question
orders dated 3rd April, 2023 and 15th June, 2023, passed by
the court of Principal Sessions Judge, Pulwama, which
CRM (M) No. 47/2024 after hearing the counsel for the
parties, in terms of order dated 19th November, 2024, came
to be dismissed.
CrlM No. 1789/2024 in
Abdul Rashid Ganaie CRM(M) No. 47/2024
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3. It is being pleaded in the instant application by the
petitioner/applicant herein that the same is filed under
Section 561-A Cr. P.C (Section 482 Cr. PC) read with
Section 94 of Constitution of Jammu and Kashmir (Section
215 of the Constitution of India).
4. It is further pleaded in the application that this Court while
dismissing the CRM (M) No. 47/2024 supra did not allow
the counsel appearing for the petitioner-applicant herein
to project his case and in fact the counsel was not heard or
allowed to read the petition as well, various judgments of
Hon’ble High Courts referred therein the petition as the
said fact can be ascertained from the CCTV footage of the
Court and, as such, the instant application be also treated
under extra ordinary criminal jurisdiction of this Court, so
that the grievances of the petitioner-applicant herein are
redressed and the order dated 19th November, 2024 is
reviewed/recalled/rescinded in the interest of justice as
otherwise grave prejudice is caused to the petitioner-
applicant herein.
Heard learned counsel for the petitioner-applicant
herein and perused the record available on the file.
5. In the first instance the counsel for the applicant herein in
response to the query of the Court, qua the maintainability
of this application referred to and relied upon the
provisions of Article 215 of the Constitution as well as
two judgments, one of the Apex Court passed in case
CrlM No. 1789/2024 in
Abdul Rashid Ganaie CRM(M) No. 47/2024
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tilted M.M. Thomas v state of Kerala and Anr reported in
2000 (1) 666 and the other passed by this Court in case
tilted Dr. Nisar Ali v. Dr. Mohammad Shafi Dar and
Anr. reported in SLJ 2001, 199.
6. In so far as the said provisions of Article 215 of the
Constitution is concerned, same reads as under:-
Article 215 “Every High Court shall be a Court
of records and shall have all the
powers of such a court including the
power to punishment for contempt of
itself”.
Here a reference to the judgment of the Apex Court
passed in case tilted as M.V. Elisabeth And Ors vs
Harwan Investment And Trading Pvt. ltd 1992
reported in AIR 1993 Supp (2) SCC 433, would be
relevant herein wherein it has been inter-alia held that
the High Court is the superior Court of record and has
inherent and plenary powers unless expressly and
impliedly barred, and subject to appellate and
discretionary jurisdiction of the Supreme Court, the
High Courts have unlimited jurisdiction including the
jurisdiction to determine its own powers.
7. Before proceedings further in the matter, a reference
hereunder to the provisions of Section 362 of Criminal
Procedure Code, 1973 (now Section 403 of BNSS of 2023)
would be relevant herein being germane hereto.
Section 362 Cr.PC/403 BNSS.
CrlM No. 1789/2024 in
Abdul Rashid Ganaie CRM(M) No. 47/2024
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“Section 403 of the Bharatiya Nagarik Suraksha
Sanhita, 2023, stipulates that once a court has
signed its judgment or final order disposing of a
case, it cannot alter or review the judgment, except
for correcting clerical or arithmetical errors”
In reference to the aforesaid provisions the Apex Court in
case titled as State of Orissa vs. Ram Chander Agarwala,
reported in 1979 V. SCC 305, has held that once a
judgment has been pronounced by the 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 Criminal Procedure Code
which would enable the High Court to review the same or
to exercise revisional jurisdiction and that further Section
561-A of the Code cannot be invoked for exercise of
power which is specifically prohibited by the Code.
The Apex Court further in case titled as Sanjeev Kapoor v.
Chandana Kapoor and others reported in 2020 SCC (13)
172 has held in regard to Section 369 and 362 of Cr. PC
as under:-
The Legislative Scheme as delineated by Section
369 of Code of Criminal Procedure, 1898, as
well as Legislative Scheme as delineated
by Section 362 of Code of Criminal Procedure,
1973 is one and the same. The embargo put on
the criminal court to alter or review its judgment
is with a purpose and object. The judgments of
this Court as noted above, summarised the law
to the effect that criminal justice delivery system
does not cloth criminal court with power to alterCrlM No. 1789/2024 in
Abdul Rashid Ganaie CRM(M) No. 47/2024
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or review the judgment or final order disposing
the case except to correct the clerical or
arithmetical error. After the judgment delivered
by a criminal Court or passing final order
disposing the case the Court becomes functus
officio and any mistake or glaring omission is
left to be corrected only by appropriate forum in
accordance with law.
8. Reverting back to the case in hand and as has been noticed
in the preceding paras, reviewing, recalling and rescinding
of order dated 19.11.2024 is being sought by the
petitioner-applicant herein while maintaining the instant
application firstly under Article 215 of the Constitution
and in the alternative under extraordinary writ jurisdiction
under inherent power of this Court enshrined in Section
482 Cr. PC [now Section 528 BNSS].
9. Indisputably, the main and fundamental ground urged in
the instant application by the petitioner-applicant herein is
that his counsel was not heard inasmuch as, was not
permitted to read the petition and the judgments referred
therein the petition. However, having regard to the
principles of the law laid down by the Apex Court in the
judgment’s supra, the said contentions and pleas raised by
the petitioner-applicant herein in the instant application
and as noticed in the preceding paras cannot by any stretch
of imagination said to be constituting any ground much
less one recognized by law to invoke either the provisions
of Section 362 Cr. PC or else Article 226 of the
CrlM No. 1789/2024 in
Abdul Rashid Ganaie CRM(M) No. 47/2024
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Constitution in challenging Section 482 Cr. PC. Even
under the provisions of Article 215 of the Constitution,
relied upon in support of the instant application by the
petitioner-applicant herein cannot be invoked on the
aforesaid grounds urged and in fact the application of the
same sought is misplaced and legally misconceived
including the reliance placed upon the aforesaid judgments
relied upon in this regard.
10. Viewed thus for what has been observed, considered and
analyzed hereinabove, the instant application is found to be
grossly misconceived both on facts as well law and
consequently fails and is, accordingly, dismissed with
costs, amounting to Rs. 10,000/- payable by the petitioner-
applicant herein before the Registrar Judicial of this Court
within a period of two weeks from the date of passing of
this order.
1.
2.
(Javed Iqbal Wani)
Judge
SRINAGAR
07.04.2025
“Abdul Rashid”
Whether approved for reporting? Yes/No
CrlM No. 1789/2024 in
Abdul Rashid Ganaie CRM(M) No. 47/2024
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authenticity of this Page 6 of 6
document