It is the oft-repeated and a salutary principle of law that fraud and justice never dwell together (fraus et jus nunquam cohabitant)
Orissa High Court: Sashikant Mishra J. allowed the interim application (I.A.) and granted the relief sought and thereby cancelled the bail bonds executed erroneously.
The criminal petition i.e. CRLMC was filed by the petitioners under Section 482 Criminal Procedure Code i.e. Cr.P.C. to challenge the orders dated 06-09-2020/08-09-2020, 02-03-2021 and 03-05-2021 passed by the Sessions Judge-cum-Special Judge, Malkangiri. The present application was filed by the State seeking recall of order dated 18-11-2021 passed in the above CRLMC mainly on the ground that such order was obtained by the accused petitioners by misleading the Court.
Counsel for petitioners submitted that the petition (I.A.) is not maintainable in law for the reason that as per Section 362 of Cr.P.C., the Court has no power to recall its own order after the same has been pronounced as it would amount to sitting in appeal over its own order.
Coounsel for respondents submitted that the averments contained in the CRLMC petition are product of misrepresentation of facts, inasmuch as, it is stated that the accused persons were arrested on 06-09-2020 but were produced on 08-09-2020 and accordingly, 180 days period was due to expire on 03-03-2021. Mr. Mishra further submitted that the petition for extension of time was filed and allowed before expiry of the 180 day period and charge sheet was also submitted before expiry of the extended period and therefore, no indefeasible right whatsoever accrued in favour of the petitioners for being released on default bail. But by completely misrepresenting such facts they have obtained the order, which is nothing but a fraud played on the Court and therefore, the order should be recalled.
Section 362 of Cr.P.C., which reads as under:
“362. Court not to alter judgement. 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.”
The Court relied on judgment R. Rajeshwari v. H.N. Jagdish, (2008) 4 SCC 82 wherein it was held that although a specific bar has been created in regard to exercise of the jurisdiction of the High Court to review its own order and ordinarily, exercise of jurisdiction under Section 482 of the Code of Criminal Procedure would be unwarranted but in some rare cases, the High Court may do so where a judgment has been obtained from it by practicing fraud on it.
The Court observed that even otherwise Section 362 of the Code places a bar on the Court to ‘alter’ or ‘review’ its order or judgment. Once the judgment is pronounced and signed the Court becomes functus officio and therefore, no further alteration or review of the same is permissible save and except to correct clerical or arithmetical errors.
The Court stated that the bar under Section 362 of Cr.P.C. is not absolute and in any case, does not apply in case of recall of the order. There is no dispute that the inherent power of the High Court under Section 482 to give effect to any order under the Code, to prevent abuse of the process of Court or to secure the ends of justice. In case any of the three conditions exist, the High Court would be justified in exercising its jurisdiction.
The Court further observed that the impugned order was passed on erroneous premises as charge sheet was submitted two days after expiry of the extended period and since, the accused persons had not been produced nor their right to be released on default bail informed to them, the CRLMC was allowed by holding that they were entitled to be released on bail.
The court after perusing facts, calculating dates, analysing case laws observed that Court is unable to persuade itself to believe that it was a bonafide error on the part of the accused persons to miscalculate the date, rather, having regard to all the facts and circumstances noted hereinabove, it becomes more than evident that they had done so deliberately in order to obtain a favourable order. This is nothing but playing fraud on the Court. It goes without saying that but for such deliberate mis-presentation this Court would not have passed the order in question.
The Court stated that an order obtained by fraud cannot be allowed to subsist as it would amount to perpetrating a gross illegality. Even otherwise, the High Court, as a Court of record, has inherent power to correct the record. It, as a Court of record, has a duty to keep its records correctly and in accordance with law. In case any apparent error is noticed by the High Court or brought to its notice in respect of any orders passed by it, the High Court has not only the power but a duty to correct it. This is a plenary power of the High Court being a superior Court and a Court of record.
The Court made it amply clear that in the instant case, the order in question was passed exercising power under Section 482 of the Code which is indisputably, a plenary power. Therefore, once it comes to light that the party concerned was not entitled to the order passed in its favor, which is nothing but an abuse of the process of Court, it would be perfectly legal as also justified in invoking the very same power under Section 482 of the Code so as to prevent such abuse and to secure the ends of justice. True, such power has to be exercised sparingly but if the circumstances so warrant, the Court is expected to rise to the occasion to set right the wrong.
The Court thus held “it becomes evident that the accused petitioners were not entitled to default bail but had obtained such order by deliberately misrepresenting facts before this Court. As such, the order in question cannot be allowed to subsist and deserves to be set aside.”
IO being a responsible police officer in charge of investigating an offence as heinous as one under the NDPS Act carrying stringent punishment, is not expected to show such irresponsible conduct in calculating the time-period for completion of investigation while making prayer for extension of such time. There is no gainsaying about the ill-effect of such callousness and irresponsible conduct. The case at hand is a case in point. This Court therefore hopes and trusts that the higher police authorities shall take note of this lapse and issue necessary instructions to be followed by the IOs, particularly in NDPS cases [Saba Bisoi v. State of Odisha, 2022 SCC OnLine Ori 948, decided on 15-03-2022]
For Petitioners : M/s. Jugal Kishore Panda, S.S. Dash, B. Karna & A.P. Dash
For Opp. Parties : Mr. S.K. Mishra