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2010 Supreme(All) 2380
[2010(8) ADJ 446]
ALLAHABAD HIGH COURT
BEFORE : RAM AUTAR SINGH, J.
RAM SEWAK RAI …Revisionist
Versus
STATE OF U.P. AND OTHERS …Respondents
(Criminal Revision No. 1002 of 2003, decided on 23rd July, 2010)
Counsel :
Kamal Narain Rai for the Revisionist; I.S. Tomar, Awadhesh Rai, A.G.A. for the Respondents.
Headnote:(A) Criminal Procedure Code, 1973—Sections 133, 482, 137(2) and 362—Limitation Act, 1963—Section 5—Nuisance—Compromise—Recalling of order—Rejection of—Under Section 133 of Cr.P.C. application moved by applicant for recall of order—Dismissal of—Revision against—Measurement of spot conducted by team of Revenue, Consolidation and Police officials—Tehsildar submitted report—Compromise between parties—On terms of compromise Magistrate decided case finally—Revision against dismissed summarily on account of its being time barred—Writ petition against—Disposed of with direction that writ Court cannot go into factual aspect of dispute—Bar of Section 362 of Cr.P.C. applicable—Once Court signed order/judgment the Court becomes functus officio—Present revision filed after two years of judgment—Revisionist availed all remedies under law. [Paras 12, 13 and 14]
(B) Criminal Procedure Code, 1973—Section 362—Scope of—Once Judge has signed its judgment or final order disposing off a case—Shall not alter the same—Except to such clerical or arithmetical error—No provision of Cr.P.C. authorising the Court to review its own. [Para 13]
(C) Criminal Procedure Code, 1973—Section 482—Review—Power of High Court—No power under Section 482 of Cr.P.C. can be exercised by High Court to review or alter its own order. [Para 12]
Result; Revision Dismissed.
Hon’ble Ram Autar Singh, J.—This revision has been filed against the judgment and order dated 10.1.2003 passed by Sub Divisional Magistrate, Mohammadabad Gohna, District Mau in Case No. 12/14 (Ram Chander v. Ram Sewak) under Sections 133 Cr.P.C., whereunder the application moved by the applicant for recall of the order dated 22.9.1998 passed in Case No. 67/31/1998 under Section 133 Cr.P.C. has been dismissed.
2. It transpires from the record that respondent No. 3 Ram Chandra Rai moved an application on 3.6.1998 before Sub Divisional Magistrate concerned to this effect that the revisionist Ram Sewak Rai started to dig the foundation of his house in the land which was always used by Ram Chandra Rai as his passage since time of ancestor and Ram Sewak Rai tried to close his passage.
3. The Sub Divisional Magistrate, Mohammadabad Gohna registered Case No. 67 of 1998, under Section 133 Cr.P.C. and constituted a team comprising revenue, consolidation and police officials, who conducted measurement of the spot and Tehsildar submitted report dated 6.7.1998. The parties submitted compromise alongwith site plan in the light of above report. The learned Magistrate then decided the case in terms of compromise on 22.9.1998 finally. The revisionist also filed Criminal Revision No. 15 of 2000 against this order but the same was summarily dismissed on account of its being barred by limitation.
4. The revisionist preferred Criminal Misc. Writ Petition No. 4662 of 2001 (Ram Sewak Rai v. State of U.P. and others) before this Court for quashing the order dated 22.9.1998 passed by Sub Divisional Magistrate but the same was disposed off with this observation that the writ Court could not go into the factual aspect of the dispute as to whether any compromise took place between the parties and the petitioner was thus permitted to approach the same Court which passed the said order dated 22.9.1998.
5. The revisionist then moved an application dated 12.9.2001 before Sub Divisional Magistrate concerned for setting aside the order dated 22.9.1998 passed on the basis of alleged compromise with this allegation that the said compromise never took place between the parties. The Review Application No. 12/14 has been dismissed by Sub Divisional Magistrate on 10.1.2003, against which this revision has been filed.
6. I have heard Shri Kamal Narain Rai, learned counsel for the revisionist, learned A.G.A. for respondents No. 1 and 2 and Shri Awadesh Rai, learned counsel for respondent No. 3 on this revision at length and perused the record.
7. The learned counsel for the revisionist has contended that the Court below had no jurisdiction to decide the said case under Section 133 Cr.P.C., because the respondent No. 3 nowhere alleged the said land to be public passage, but he always termed the same to be his private passage. Moreover O.S. No. 644 of 1999 (Ram Chandra Rai v. Ram Autar) and O.S. No. 757 of 1993 (Ram Autar v. Ram Chandra Rai) were instituted before Civil Judge (J.D.), Mau for permanent injunction regarding alleged disputed passage, which was also subject matter of proceedings under Section 133 Cr.P.C. and thus Court below committed mistake in ignoring the provisions of Section 137 (2) Cr.P.C. and illegally decided the same.
8. The learned counsel for the revisionist has further submitted that the disputed land being a private passage of respondent No. 3 proceedings under Section 133 Cr.P.C. could neither be initiated nor was legally maintainable. No person to alleged compromise had put his signature on the alleged compromise dated 14.9.1998 and thus the same could not be treated to be a compromise or "Panch Vyawastha", the learned Court below committed error in placing reliance on order passed by revisional Court in Revision No. 15 of 2000, wherein application under Section 5 of Limitation Act was dismissed.
9. The learned counsel for the respondent No. 3, repelling above contentions, submitted that a suit for permanent injunction was filed by th
