IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Date of decision: 13 . 11 .2024 State of H.P. …Petitioner.

Versus Sarv Sheel Mago & others. …Respondents.

Coram Hon’ble Mr. Justice Vivek Singh Thakur, Judge.

Hon’ble Mr. Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

For the Petitioner. Mr.Varun Chandel, Additional Advocate General.

For the Respondents: None.

Complainant Mr.Sanjay Bhardwaj present in person.

Vivek Singh Thakur, Judge (Oral)

Notice. Mr.Varun Chandel, Learned Additional Advocate General waives service and accepts notice on behalf of non-applicant/appellant.

Heard.

2. This application has been filed on various grounds enumerated therein, seeking direction to send the Criminal case for re-

1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes

trial in FIR No. 170, dated 30.10.2000, registered under Sections 307, 364, 506 and 34 of IPC in Police Station Barotiwala, District Solan, H.P.. 3. After registration of FIR, challan was presented before the Magistrate. On completion of trial, Additional Sessions Judge (Presiding Officer, Fast Track Court) Solan in case No. 30/FT/7 of 2004/2003, titled as State of H.P. Vs. Sarvsheel Mago & others had acquitted the accused persons.

4. The aforesaid acquittal was assailed by State of H.P. by preferring the appeal under Section 378 of Cr.P.C. bearing Cr. Appeal No. 181 of 2005. The said appeal was dismissed by the Division Bench of this High Court vide judgment dated 18.7.2012. At the time of final hearing in the said appeal, complainant was duly represented by Advocates.

5. Section 403 of Bharatiya Nagarik Suraksha Sanhita (earlier Section 362 of the Code of Criminal Procedure) provides as under:-

“403. Save as otherwise provided by this Sanhita 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.”

6. Though, applicant/complainant is putting reliance on provisions of Section 386 Cr.P.C. (now Section 427 of Bharatiya Nagarik Suraksha Sanhita) for making prayer to send the matter for re-trial, however, as apparent from the provisions of Section 403 of Bharatiya Nagarik Suraksha Sanhita (Section 362 of Cr.P.C.), after signing the final judgment in present matter and disposing the appeal, this Court has no power to alter or review the same, except to correct a clerical or arithmetical error.

7. Admittedly, in present application prayer has been made to send the matter for re-trial which, in the given facts and circumstances, shall amount reviewing the judgment already passed by this High Court by altering the same which is not permissible under law.

8. Applicant has also relied upon judgments passed by the Supreme Court in Criminal Appeal No. 2388 of 2014 (arising out of S.L.P. (Crl.) No. 8852 of 2013), decided on 11.11.2014, titled as Nar Singh Vs. State of Haryana; Cr. Appeal Nos. 466-449 of 2004 (arising out of SLP(Crl.) Nos. 538-541 of 2004) decided on 12.4.2004, titled as Zahira Habibulla H. Sheikh and Another Vs. State of Gujarat and others; Criminal Appeal Nos. 119-122 of 2017, decided on 31.1.2017, titled as Ajay Kumar Ghoshal Etc. Vs. State of Bihar & Another; and Criminal Appeal No. 1091 of 2006, decided on 31.8.2012, titled as Mohd. Hussain @ Julfikar Ali Vs. State (Govt.

of NCT) Delhi.

9. The aforesaid judgments in given facts and circumstances of present case are not applicable as directions in aforesaid judgments have been passed by the Supreme Court in appeals/petitions pending before the Supreme Court.

10. Judgment of Madhya Pradesh High Court in CRR No. 229/2017, titled as Raja alias Sumit & others Vs. State of MP, has also been relied upon by applicant/complainant. The Direction in the said case has also been passed by the said High Court in a Criminal Revision being adjudicated by the said Court, but not after passing of final judgment.

11. Present application has been preferred under S