Indrajit Singh And Another vs State Of U.P. And Another on 17 May, 2025

Allahabad High Court

Indrajit Singh And Another vs State Of U.P. And Another on 17 May, 2025

Author: Raj Beer Singh

Bench: Raj Beer Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:82724
 
Court No. - 71
 

 
Case :- APPLICATION U/S 482 No. - 26335 of 2024
 

 
Applicant :- Indrajit Singh And Another
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Manoj Kumar Tiwari
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Raj Beer Singh,J.
 

Order On Misc. Recall Application :-

1. This Criminal Misc. recall application has been preferred seeking following relief:

”The relief sought by means of present Recall Application is that the Hon’ble Court may be pleased to allow this application by recalling the its order dated 05.09.2024 passed by Hon’ble Raj Beer Singh J. in application u/s 482 No. 26335 of 2024 (Indrajit Singh and Another V State of U.P. and Another).”

2. Another application has been filed for condonation of delay in filing of aforesaid recall application.

3. Considering facts of the matter and the submissions of learned counsel for the applicant, the delay in filing of aforesaid recall application is condoned.

4. Heard learned counsel for applicant and learned AGA for State on Misc. Recall application and perused the record.

5. Perusal of record shows that applicants have filed the application under section 482 CrPC No.26335 of 2024 (Indrajit Singh and another v. State of UP and another) for quashing of proceedings of Case No.2846 of 2023 (State v. Rajeev Tevatiya and others), case crime no. 242 of 2011, under Sections 498-A, 323, 504, 506 IPC and sections 3/4 of D.P. Act, P.S.- Jani, District- Meerut. After considering the arguments of learned counsel for the parties and material on record, that application under section 482 CrPC was decided by this Court vide order dated 05.09.2024, which is reproduced as under:

”1. Heard learned counsel for the applicants and learned AGA for the State.

3. This application under Section 482 Cr.P.C. has been preferred against order dated 23.07.2024, passed by the learned Additional Chief Judicial Magistrate, Court No.4, Meerut in Case No.2846 of 2023 (State Vs. Rajeev Tevatiya and others), arising out of Case Crime No.242 of 2011, under Sections 498A, 323, 504, 506 IPC and Section 3/4 D.P. Act, Police Station- Jani, District- Meerut, whereby an application filed by the applicants under Section 300 Cr.P.C. has been rejected.

4. It has been submitted by learned counsel for the applicants that the impugned order is against facts and law and liable to be set aside. Applicants are father-in-law and mother-in-law of the informant and no case is made out against them. Applicants were residing separately from informant and her husband. It is further submitted that in the year 2011, the informant has lodged the first information report and she has also lodged a complaint under Section 12 Domestic Violence Act. In said complaint under Section 12 Domestic Violence Act, the proceedings have already been concluded, wherein, the applicants were restrained from causing any domestic violence and the complainant was awarded maintenance and compensation. It was submitted that as the applicants have already faced trial under Section 12 Domestic Violence Act, thus, the applicants cannot be prosecuted for offences under Sections 498-A, 323, 504, 506 IPC and 3/4 D.P. Act, on similar allegations. In this connection the applicants have filed an application to drop the proceedings but said application has been rejected by the trial Court vide impugned order dated 23.07.2024. It was pointed out that substantially the allegations in both the cases were similar and thus, in view of the provisions of Section 300(1) Cr.P.C., the prosecution of the applicants for aforesaid offences is bared by law and thus, impugned order is liable to be set aside.

5. Learned AGA has opposed the application and submitted that there is no illegality or perversity in the impugned order. In the complaint under Section 12 Domestic Violence Act, the complainant has been merely granted maintenance. The proceedings of complaint under Section 12 Domestic Violence Act cannot be said prosecution of the applicants for substantially punishable offences and thus, the provisions of Section 300(1) Cr.P.C. are not attracted.

6. I have considered the rival submissions and perused the record.

7. The main contention raised on behalf of applicants is that the informant has filed a case under section 12 of Protection of Women from Domestic Violence Act 2005 (hereinafter referred as D.V. Act), wherein applicants have faced proceeding and the informant has been awarded maintenance and thus, the prosecution of applicants on similar allegations for offence under section 498-A, 323, 504, 506 IPC and section D.P. Act is barred by the provisions of section 300(1) CrPC.

8. Article 20(2) of Constitution of India enshrines the doctrine of double jeopardy and it provides that no person shall be prosecuted and punished for the same offence more than once. In other words no person shall be put twice in peril for the same offence. Similar provision has been made in section 300 (1) Cr.P.C., which is extracted hereunder :

“Section 300. Person once convicted or acquitted not to be tried for same offence.

(1) A person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made under sub-section (1) of section 221, or for which he might have been convicted under sub- section (2) thereof.

9. Perusal of the provisions of Article 20(2) of Constitution of India and section 300(1) CrPC shows that to attract the principle of ‘double jeopardy’, the two sets of proceedings must be wholly identical with same ingredients constituting the offence in both instances. D.V. Act provides an alternative remedy for a woman, who suffered domestic violence, for seeking monetary relief and compensation etc in addition to the existing remedies available under law. Section 12 D.V. Act does not provide any substantial sentence of imprisonment unless and until the order of the Court is violated or not complied with, whereas the offence under section 498-A, 323, 504, 506 IPC and section 3/ 4 D.P. Act provide substantial sentence of imprisonment for offences like cruelty, assault and intimidation etc. The ingredients of the said penal offences are different from the mischief provided under section 12 of D. V. Act. The purpose of provisions of section 12 D.V. Act is mainly to provide maintenance, compensation and other reliefs of like nature to a women, who has suffered domestic violence. In fact the proceeding under Domestic Violence are to some extent civil in nature. This Court is of considered view that the proceedings under section 12 of D.V. Act would not create double jeopardy in respect of prosecution of applicants under section 498-A IPC and section D.P. Act. The contention raised by the learned counsel for the applicant is not acceptable, hence repelled.

10. The trial court has considered the matter in correct perspective and rejected the application of the applicants by a reasoned order. The impugned order does not call any interference by invoking jurisdiction under section 482 CrPC.

11. Application under section 482 CrPC is dismissed.

6. Learned counsel for the applicant submitted that while passing the impugned order dated 05.09.2024 this Court has failed to consider the provisions of Section 300(1) CrPC as well as position of law laid down in Case of T.P. Gopalakrishnan v. State of Kerala, 2022 (0) SCC 1268. Referring to facts of the matter, it was submitted that applicants have already been tried and convicted in case no. 498 of 2011, under Section 12 of Domestic Violence Act and thus, on the same allegations they can not be prosecuted for offence under Section 498-A, 323, 504, 506 IPC and Sections 3/4 of D.P. Act. Learned counsel has referred facts of the matter and submitted that while passing the impugned order dated 05.09.2024 this Court has failed to consider the position of law and thus, the order dated 05.09.2024 is liable to be recalled and the aforesaid application under section 482 CrPC be allowed.

7. Learned AGA has submitted that the order dated 05.09.2024 has been passed on merits after considering submissions of learned counsel for the parties and as per law the same cannot be reviewed / recalled.

8. I have considered the rival submissions and perused the records.

9. In view of submissions of learned counsel for the applicant it is clear that in disguise of instant Recall Application, the applicants are seeking review of the judgment / order dated 05.09.2024 passed in application u/s 482 CrPC No.26335 of 2024 (Indrajit Singh and another v. State of UP and another).

10. So far the legal position on point of review is concerned, the provision of Section 362 of CrPC explicitly restricts the Court’s power to review its judgments and thereby precluding a fresh evaluation of the same set of facts. Any challenge to such final order could only be made to the Supreme Court in accordance with law. The power to review or recall an order is limited, barring any inherent power for substantive modification.

11. The Hon’ble Supreme Court in case of Narayan Prasad vs. State of Bihar reported at 2017 SCC Online SC 1738 has held that :-

”6. In order to decide the controversy at hand, it would be useful to reproduce Sections 362 and 482 of The Code of Criminal Procedure, 1973 [hereinafter ‘CrPC‘ for brevity] –

362. Court not to alter judgment.- Save as otherwise provided by this 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.

482. Saving of inherent powers of High Court.-Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.

7. Plain reading of these Sections indicate that the prohibition under the section 362 of CrPC, 1973 is absolute; after the judgment is signed even the High Court in exercise of its inherent power under section 482 of CrPC, 1973 has no authority or jurisdiction to alter/review the same. The inherent power under section 482 of CrPC, 1973 was purported to avoid 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.

8. 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.” .

12. It is also well settled that that the inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362 CrPC. In this connection a reference may be made to the law laid down in Sooraj Devi V Pyare Lal MANU/SC/0228/1981: 1981CriLJ296. It was held that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power.

13. Hon’ble Supreme Court in case of Hari Singh Mann V Harbhajan Singh Bajwa and Ors., MANU/SC/0665/2000 has deprecated the practice of moving an application under 482 CrPC after final disposal of the proceedings in following words :-

”8. We have noted with disgust that the impugned orders were passed completely ignoring the basic principles of criminal law. No review of an order is contemplated under the CrPC. After the disposal of the main petition on 7-1-1999, there was no lis pending in the High Court wherein the respondent could have filed any miscellaneous petition. The filing of a miscellaneous petition not referable to any provision of CrPC or the rules of the Court, cannot be resorted to as a substitute of fresh litigation. The record of the proceedings produced before us shows that directions in the case filed by the respondents were issued apparently without notice to any of the respondents in the petition. Merely because the respondent No. 1 was an Advocate, did not justify the issuance of directions at his request without notice of the other side. The impugned orders dated 30th April, 1999 and 21st July, 1999 could not have been passed by the High Court under its inherent power under Section 482 of the CrPC. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the court.

9. There is no provision in the CrPC authorising the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code.”

14. Thus, a bare reading of section 362 of Cr.P.C. would indicate that no Court, which expression shall include the High Court, is legally empowered or has any jurisdiction to alter or review any “judgment” or “final order disposing of a case”. The alteration in any judgment or final order is permissible only to the extent of making any correction of a clerical or arithmetical error. The bare reading of section 362 Cr.P.C. thus, gives a clear idea without any ambiguity that any order passed or judgment rendered cannot be permitted to be altered or reviewed in substance. Language applied in Section 362 of Cr.P.C. uses two words/phrases, which are relevant to be noted and are also significant for appropriate adjudication of the rival submissions made by the learned counsel for the parties. These words are (i) “judgment” and (ii) “final order disposing of a case”. As to whether the order dated 05.09.2024, whereby the petition filed under section 482 Cr.P.C. was dismissed on merits, is a judgment, is not in dispute.

15. Coming to the facts of the present case, perusal of record shows that applicants have filed an application u/s 482 CrPC No.26335 of 2024 (Indrajit Singh and another v. State of UP and another) for quashing of proceedings of Case No.2846 of 2023 (State v. Rajeev Tevatiya and others), case crime no. 242 of 2011, under Sections 498-A, 323, 504, 506 IPC and sections 3/4 of D.P. Act, P.S.- Jani, District- Meerut. After considering arguments of learned counsel for the applicants, that case was decided by this Court vide order dated 05.09.2024 and application under section 482 CrPC dismissed. The main grievance of the applicant is that while passing the said order, this Court has not taken into consideration case the law laid down in case of in Case of T.P. Gopalakrishnan v. State of Kerala, 2022 (0) SCC 1268. There is nothing to show that any such case law was cited at the time of hearing of the application u/s 482 CrPC. The contention that while passing the impugned order dated 05.09.2024, this Court has failed to consider the provisions of Section 300(1) CrPC, is wholly incorrect and misconceived and thus, not tenable.

16. Considering facts of the matter and position of law, no case for review / recall of impugned order dated 05.09.2024 is made out. The instant criminal misc. recall application is wholly misconceived and thus, liable to be dismissed.

17. Accordingly, the criminal misc. recall application is dismissed.

Order Date :- 17.5.2025

Rama Kant