Interim Order 2

Order Details: Order Below EX 1
Pdf Text: C. C. No. 202 PW 2018 State Vs Rohan
CNR No.MHMM18-004568-2018
FURTHER ORDER BELOW EXH.1
1. The brief facts leading to filing of this application are as -
The compromise arrived between informant/victim and accused. In
pursuance of this compromise, both the parties i.e. first informant/victim
as well as accused appeared before this court in Lok Adalat on
03.03.2024, with their respective advocates. They filed compounding
application and pursis. Relying on the submissions made by both the
parties and their advocates, this court passed following order -
ORDER BELOW EXHIBIT - 01
Both parties present. Matter is amicably settled. Informant filed pursis, Exh.12, and stating
that he does not want to proceed further. Therefore, following order :
ORDER
A. The permission granted to compound the matter.
B. Proceeding stands disposed off.
C. The accused acquitted.
D. Concerned police station is directed to return the seized property to informant/victim.
E. Cash security, if any, deposited shall be refunded to the accused, if claimed within one
year from today.
F. After one year the cash security amount be forfeited to the Government. Liberty granted
to the accused to claim it even after one year by applying to that effect.
G. Copy of this order shall be given free of cost to informant/victim.
Sd/-
BANDRA, MUMBAI (KOMALSING RAJPUT)
DATE : 03.03.2024 M.M., 12TH COURT, BANDRA, MUMBAI
2. Now, it is came to notice of this court that some of the punishing
provisions invoked are non-compoundable. After perusal of the record it
is noticed that the order passed inadvertently due to peculiar facts and
circumstances bonafide mistake occurred on that day on account of heavy
work load, crowd gathered and under bonafide belief by relying upon the
submissions of parties.
3. The order dated 03.03.2024, is not sustainable in law. The mistake
occurred needs to be rectified. Though this court has very limited
scope/jurisdiction the maxim actus curiae neminem gravabit, comes into
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C. C. No. 202 PW 2018 State Vs Rohan
CNR No.MHMM18-004568-2018
play, which means act of court should prejudice no one. It is the duty of
this court to see that process of court should not be abused and when any
such thing is noticed court can undone such mistake and empowered to
rectify it by passing necessary orders on it’s own, in the interest of justice.
The court can not be said to be helpless in such a situation. In this regard
Supreme Court, in several judgments laid down that when the judgment is
rendered by fraud or passed by court mistakenly, it can recall it. Since
long back, in the matter of Indian Bank Vs Satyam Fibers India Pvt. Ltd.
((1996) 5 SCC 550), observed that -
Para.23. Since fraud affects the solemnity, regularity and orderliness of
the proceedings of the court and also amounts to an abuse of process of
court, the courts have been held to have inherent power to set aside an
order obtained by fraud practiced upon that court. Similarly, where the
court is mislead by a party or the court itself commits a mistake which
prejudices a party, the court has the inherent power to recall it’s order.
(See: Benoy Krishna Mukherjee vs. Mohanlal Goenka AIR 1950 Cal.
287; Gajanand Sha & Ors. vs. Dayanand Thakur AIR 1943 Patna 127;
Krishna Kumar vs. Jawand Singh AIR 1947 Nagpur 236; Devendra
Nath Sarkar vs. Ram Rachpal Singh ILR (1926) 1 Lucknow 341 = AIR
1926 Oudh 315; Saiyed Muhammad Raza vs. Ram Saroop & Ors. ILR
(1929) 4 Lucknow 562 = AIR 1929 Oudh 385 (FB); Bankey Behari Lal &
Anr. vs. Abdul Rahman & Ors. ILR (1932) 7 Lucknow 350 = AIR 1932
Oudh 63; Lekshmi Amma Chacki Amma vs. Mammen Mammen, 1955
Kerala Law Times 459.) The Court has also the inherent power to set
aside a sale brought about by fraud practised upon the Court (Ishwar
Mahton & Anr. vs. Sitaram Kumar & Ors. AIR 1954 Patna 450) or to
set aside the order recording compromise obtained by fraud.
(Bindeshwari Pd.Chaudhary vs. Debendra Pd. Singh & Ors. AIR 1958
Patna 618; Smt. Tara Bai vs. V.S. Krishnaswamy Rao AIR 1985
Karnataka 270).
4. Relying on these observations, Supreme Court in case of of Budhia
Swain and ors. Vs Gopinath Deb and ors. (1999 SCC OnLine SC 545), observed
that -
Para.7. In Corpus Juris Secundum (Vol. XIX) under the Chapter "Judgment-
Opening and Vacating" (paras.265 to 284 at pages 487-510) the law on the subject
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C. C. No. 202 PW 2018 State Vs Rohan
CNR No.MHMM18-004568-2018
has been stated. The grounds on which the courts may open or vacate their
judgments are generally matters which render the judgment void or which are
specified in statutes authorising such actions. Invalidity of the judgment of such
nature as to render it void is a valid ground for vacating it at least if the invalidity is
apparent on the face of the record. Fraud or collusion in obtaining a judgment is a
sufficient ground for opening or vacating it. A judgment secured in violation of an
agreement not to enter judgment may be vacated on that ground. However, in
general, a judgment will not be opened or vacated on grounds which could have
been pleaded in the original action. A motion to vacate will not be entered when the
proper remedy is by some other proceedings, such as by appeal. The right to
vacation of a judgment may be lost by waiver or estoppel. Where a party injured
acquiesces in the rendition of the judgment or submits to it, waiver or estoppel
results.
Para 8. In our opinion a tribunal or a court may recall an order earlier made by it, if
(i) the proceedings culminating into an order suffer from the inherent lack of
jurisdiction and such lack of jurisdiction is patent,
(ii) there exists fraud or collusion in obtaining the judgment,
(iii) there has been a mistake of the court prejudicing a party or
(iv) a judgment was rendered in ignorance of the fact that a necessary party had
not been served at all or had died and the estate was not represented.
The power to recall a judgment will not be exercised when the ground for re-
opening the proceedings or vacating the judgment was available to be pleaded in the
original action but was not done or where a proper remedy in some other
proceeding such as by way of appeal or revision was available but was not availed.
The right to seek vacation of a judgment may be lost by waiver, estoppel or
acquiescence.
5. Thus, court can not be said to be helpless to undone the wrong
occurred or caused on account of it’s wrong order passed inadvertently or
under bonafide belief relying on the submissions of the parties, or for any
other reason of fraud, etc. It can be done in the present matter by recalling
the order dated 03.03.2024, allowing composition of offences and
disposing of the matter. Therefore, following order in the interest of
justice -
ORDER
a. The order of granting permission to compound the offence and
acquitting the accused along with other consequential orders passed
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C. C. No. 202 PW 2018 State Vs Rohan
CNR No.MHMM18-004568-2018
following it, are recalled.
b. The matter is ordered to be proceeded further as per law from the
stage from where it had been disposed off.
c. Issue summons to accused for facing trial, in the matter.
d. Concerned clerk shall revoke the matter in C.I.S. and it is ordered
to be kept on 19.10.2024, for appearance of accused.
e. Concerned Clerk of this court shall also directed to take the note of
revocation of this matters in Balance Sheet and made the change
accordingly. He shall also sent the corrected disposal statement of Lok
Adalat dated 03.03.2024, to D.L.S.A., Mumbai through Hon’ble Chief
Judicial Magistrate.
f. The Record and Proceedings shall be called from the office of
Hon’ble Principal Judge, City Civil and Sessions Court, Mumbai.
MUMBAI (KOMALSING RAJPUT)
DATE – 31.08.2024 J.M.F.C., 12TH COURT, BANDRA, MUMBAI
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