MOHAMMED ZAKIR versus SHABANA & ORS. on 23 July 2018

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SUPREME COURT REPORTS

[2018] 7 S.C.R.

A

MOHAMMED ZAKIR

v.

SHABANA & ORS.

(Criminal Appeal No. 926 of 2018)

BJULY 23, 2018

[KURIAN JOSEPH AND SANJAY KISHAN KAUL, JJ.]

Code of Criminal Procedure, 1973 – s.362 – Recalling of theorder – High Court recalled its own order, rendering it patentlyerroneous – Propriety of – Held: Not proper – The whole purposeCof s.362 is only to correct a clerical or arithmetical error – However,High Court sought to re-hear the matter on merits – That isimpermissible under law.

Disposing of the appeal, the Court

HELD: The High Court should not have exercised thepower under Section 362 Cr.P.C. for a correction on merits.However patently erroneous the earlier order be, it can only becorrected in the process known to law and not under Section 362Cr.P.C. The whole purpose of Section 362 Cr.P.C. is only to D

correct a clerical or arithmetical error. What the High CourtEsought to do in the impugned order is not to correct a clerical orarithmetical error; it sought to re-hear the matter on merits,since, according to the Judge, the earlier order was patentlyerroneous. That is impermissible under law. [Para 4] [1129-D-E]

CRIMINAL APPELLATE JURISDICTION : Criminal AppealFNo. 926 of 2018.

From the Judgment and Order dated 28.04.2017 of the High Courtof Karnataka at Bengaluru in Crl. Petition No. 2351 of 2017.

Gopal Sankaranarayanan(AC), Shrutanjaya Bhardwaj(AC),GJoseph Aristotle S., Mrs. Priya Aristotle, Ms. Payal N. Gaikwad, Advs.for the appearing parties.

Mohammed Zakir, Appellant-in-person.

H

The Judgment of the Court was delivered by KURIAN, J. 1. Leave granted.

2. We have heard the petitioner, who is appearing in person,Mr. Joseph Aristotle S., learned counsel appearing for Respondent Nos.1to 4 and Mr. Gopal Sankaranarayanan, learned counsel, who wasappointed as an amicus in this matter.

3. The appellant is aggrieved since the High Court passed anorder under Section 362 Cr.P.C. dated 28.04.2017 recalling its own orderdated 18.04.2017. The order dated 28.04.2017 reads as under:- “Notwithstanding section 362 of Cr.P.C. the order rendered bythis Court earlier on 18.04.2017 is found to be patently erroneousand therefore the order is withdrawn. The petition is restored tofile and the registry is directed not to webhost the order passedearlier and to take note of the fact that the order is withdrawn.”

4. The High Court should not have exercised the power underSection 362 Cr.P.C. for a correction on merits. However patentlyerroneous the earlier order be, it can only be corrected in the processknown to law and not under Section 362 Cr.P.C. The whole purpose ofSection 362 Cr.P.C. is only to correct a clerical or arithmetical error.What the High Court sought to do in the impugned order is not to correcta clerical or arithmetical error; it sought to re-hear the matter on merits,since, according to the learned Judge, the earlier order was patentlyerroneous. That is impermissible under law. Accordingly, we set asidethe impugned order dated 28.04.2017.

5. Now that the parties have appeared before us, we haveascertained that the appellant approached the High Court, aggrieved bythe notice issued by the Sessions Court on 25.01.2017 in Criminal AppealNo.95/2017. Since the said appeal is pending before Principal City Civiland Sessions Judge, Bengaluru, we do not propose to deal with the matteron merits. Accordingly, we set aside the order dated 18.04.2017 passedby the High Court and dispose of this appeal with a direction to thePrincipal City Civil and Sessions Judge, Bengalure to dispose of theCriminal Appeal No.95/2017 expeditiously.

6. Pending applications, if any, shall stand disposed of.

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