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2016 Supreme(Mad) 570
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
P.N. PRAKASH, J.
Pandian - Petitioner
Versus
S. Varadharajan & Others - Respondents
Crl.M.P.(MD) No. 1817 of 2016 in Crl.O.P.(MD) No. 2984 of 2016
Decided On : 25-02-2016
The court has the power to recall an order in extraordinary cases, as provided under Section 362 Cr.P.C., to address serious mistakes or jurisdictional errors.
Headnote:
Recalling Order - Criminal Petition - Section 362 Cr.P.C., W.P.(MD) Nos.12242 of 2014 & 1603 of 2010, W.A.(MD) Nos.1531 and 1532 of 2014 - The court recalled the order based on the petitioner's suppression of facts and the inadvertent usurpation of powers of the Division Bench. The legal provision under Section 362 Cr.P.C. was invoked to address the extraordinary circumstances.
Fact of the Case:
The petitioner sought police protection for felling and removing trees in revenue lands, leading to a law and order problem. The respondent filed a petition for recalling the order, alleging suppression of facts by the petitioner.
Finding of the Court:
The court found that the petitioner had suppressed facts and that the matter should have been adjudicated before the Division Bench. It also noted the threat of contempt of the Division Bench order by the Tahsildar.
Issues: Suppression of facts, jurisdictional error, threat of contempt of court
Ratio Decidendi: The court invoked Section 362 Cr.P.C. to address the extraordinary circumstances and recalled the order due to the petitioner's suppression of facts and the inadvertent usurpation of powers of the Division Bench.
Final Decision: The order granting police protection was recalled, and the parties were given liberty to adjudicate their rights before the Division Bench.
1. This Criminal Miscellaneous petition coming on for hearing on this day upon perusing the petition and the affidavit filed in support thereof on the file of the High Court and upon hearing the arguments of M/S.R.MAHESWARAN, Advocate for the petitioner and of M/s. RAJARAJAN Government Advocate for the respondents 2 to 4, and of Mr. G.R.Swaminathan for S.Devasena, Advocate for the 1st Respondent this court made the following order:-
On 18.02.2016, this Court has passed the following order in Crl.O.P.(MD) No.2984 of 2016:
“3. It is seen that the petitioner is a hereditary Executive Trustee of Sri Arulmigu Sanjeevi Rayar Koil, Pidampatti. Earlier in W.A.Nos.1531 and 1532 of 2014, the Division Bench of this Court had passed orders on 29.01.2016 granting an order of interim injunction restraining the Revenue Authorities and police from interfering with the auctioning of fruit bearing and non-fruit bearing trees and cutting of trees in patta land and 8 tanks of Sri Arulmigu Sanjeevi Rayar Koil, Pidampatti. When the auction has been conducted and when the successful bidder was removing the trees, it is alleged that he has been prevented by some vested interest. In this connection, the petitioner has given a complaint based on which petition enquiry in C.S.R.No.10 of 2016 is being conducted.
4. Under such circumstances, this Court directs the respondent police to conduct enquiry in the case in C.S.R.No.10 of 2016 expeditiously and provide sufficient police protection in terms of the order passed by the Division Bench in W.A.Nos.1531 and 1532 of 2014, dated 29.01.2016.
5. With the above directions, this Criminal Original Petition is disposed of.
2. Today, Mr.M.Rajarajan, learned Government Advocate and Mr.R.Maheswaran, learned counsel appearing for private parties represented that by virtue of the order passed by this Court, the petitioner has obtained police protection for felling and removing the trees in the revenue lands, on account of which, a serious law and order problem has arisen in the village and therefore, pressed for recalling the order.
3. Pandian / petitioner herein / 4th respondent in Crl.O.P.(MD) No.2984 of 2016 has filed this present petition for recalling the order, on the ground that S.Varadharajan / petitioner in Crl.O.P.(MD) No.2984 of 2016 has suppressed several facts before this Court and has obtained the order of police protection. Hence, this Court issued notice to Mr.G.R.Swaminathan, counsel on record in Crl.O.P.(MD) No.2984 of 2016 and posted the matter at 02:15 for hearing today.
4. Heard Mr.G.R.Swaminathan, learned counsel for S.Varadharajan / petitioner in Crl.O.P.(MD) No.2984 of 2016, Mr.R.Maheswaran, learned counsel for Pandian/R4 in Crl.O.P.(MD) No.2984 of 2016 and the petitioner in Crl.M.P.(MD) No.1817 of 2016, for recalling the order and Mr.M.Rajarajan, learned Government Advocate.
5. Mr.Maheswaran, learned counsel for the petitioner submitted that the order obtained fraudulently from this Court has to be recalled, which was refuted by Mr.G.R.Swaminathan, learned counsel for the petitioner in Crl.O.P.(MD) No.2984 of 2016.
6. Normally, this Court has no power to recall an order in view of the bar under Section 362 Cr.P.C., but in extra ordinary cases, where a serious mistake has crept in, it cannot be stated that this Court is helpless. [See Deepa Gourang Murdeshwar Katre vs. Principal V.A.V.College of Arts and Others, (2007 AIR SCW 1901) and A.V.Papayya Sastry and Others vs. Government of A.P. and Others, (2007 AIR SCW 2212)].
7. It is the case of Varadharajan that he is the hereditary trustee of Sri Sanjeevirayar Kovil and it is his assertion that the Temple owns eight water tanks since the time of Rule of Raja Thondaman. In this regard, Varadharajan filed W.P.(MD) Nos.12242 of 2014 & 1603 of 2010 in which final orders were passed on 24.09.2014 by a learned Single Judge of this Court, the operative portion of which, reads as follows:
“11. In the light of the above, this Court is of the view that the
