IA No. 1 of 2016

This application is filed under section 439(1)(b) of Criminal Procedure Code, 1973 (hereinafter referred to as “Cr.PC”, for short) in a disposed of petition seeking relaxation or setting aside the bail condition No.3 imposed vide order dated 30.7.2015.

2. This Court while passing the order on merits of the bail petition filed by the petitioners under section 439 of Cr.PC in connection with FOC No.4/2015 of Forest Department, Devanahalli Range, Devanahalli, Bengaluru Rural District for the offences punishable under sections 9, 11, 39, 48A, 49B, 49C and 51 of Wildlife Protection Act, 1972, has imposed certain conditions, particularly, condition No.3 which is enumerated below.

“(3) Petitioners shall mark their attendance once in a month on the second Saturday before the I.O. between 10.00 a.m. and 5.00 p.m. till the completion of investigation.”

3. The learned Counsel for the petitioners submitted that the said condition is causing inconvenience to the petitioners and therefore the same may be relaxed.

4. This Court has raised a question as to –

“Whether Interlocutory Application u/s.439(1)(b) of Cr.P.C. is maintainable in a disposed of matter?”

5. The learned Counsel further submitted that earlier he had filed independent petition in Crl. Petition No.7568/2016 and this Court upholding the office objections with regard to the maintainability has dismissed the petition as not maintainable, therefore this present application is filed in the disposed of proceedings.

6. On careful perusal of the earlier petition and order passed in Crl. Petition No. 7568 of 2016, office has raised an objection that fresh criminal petition is not maintainable for modification of the order passed by the court. This court has not considered in detail with regard to the maintainability of the application or objections raised by the office, but the court has simply dismissed the petition as not maintainable without expressing any of its opinion.

7. As per the provision of Section 362(5) of Cr.P.C., the Court has no power to alter or review its judgment after it is signed. The same principle holds good in respect of final orders which are of the nature of judgment. After the Court has signed its judgment or final order disposing of a case, it shall not alter or review the same except to correct a clerical error or arithmetical error. The Court becomes functus officio after signing the judgment or order. This provision does not empower the Court to review its judgment or modify its order except in cases where the said order was passed without jurisdiction or in default of appearance without an adjudication on the merits or to correct a clerical error. Therefore, it necessitated to consider the maintainability of the Interlocutory application. In my opinion, the order passed by this Court on merits considering the grounds urged therein, the court has imposed the conditions which are absolutely necessary at that particular point of time and accordingly imposing conditions, bail petition was disposed of by this court. Any modification or alteration of the order which are not clerical or arithmetical in nature, are not allowed under any of the provisions of Cr.PC.

8. Section 362 of Cr. PC which is the only provision which empowers the court to pass orders in a disposed of petition which reads thus:-

“362. 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.”

9. The learned Counsel has not brought any other provision under Cr.PC under which, this Court can modify, alter or review its earlier order except the provision under section 362 of Cr.PC. Therefore, what is not granted under this particular provision cannot be done or invented by the court in order to pass such order. Section 362 of Cr.PC is a specific provision which prohibits the courts from alteri