33. clerical and arithmetical error

Section 362 Cr. P.C. clearly bars the court to alter or review its judgment or final order except to correct a clerical or arithmetical error. What is clerical or arithmetical error has been explained by Hon'ble Apex Court in the case of 'Master Constructions Company Pvt. Ltd. Vs. State of Orissa' AIR 1966 SC 1047 and it has been held that arithmetical error is a mistake of calculation and a clerical error is mistake in writing or typing. In the present case, the impugned order does not suffer from any arithmetical error or clerical error. On the other hand, case of the applicant is that her counsel could not appear to argue the case on the date fixed because his name was wrongly printed in the cause list as Vinod Kumar Srivastava in place of Vinod Kumar Sharma. It may, however, be mentioned that the revision was not dismissed in default as there is no provision for dismissal of the criminal revision in default and it was decided on merits holding that the order passed by the Addl. Sessions Judge for treating the application under section 156(3) Cr.P.C. as a complaint was justified. Now the question is whether this Court can recall or review its above judgment in view of the clear bar under section 362 Cr.P.C.

In the case of 'Sankatha Singh and others Vs. State of Uttar Pradesh' A.I.R. 1962 S.C. 1208 the facts were that the accused had filed an appeal before the Sessions Judge against the conviction order, and on the date fixed for hearing of that appeal, none appeared for the accused appellants. Then the learned Sessions Judge dismissed the appeal on merits. Thereafter the accused moved an application for setting aside that order on the ground that their counsel could not appear to argue the case and so the order dismissing the appeal should be set aside and an opportunity should be provided to the appellant to argue the appeal. This application was allowed by the Sessions Judge who had earlier dismissed the appeal. However, before the appeal could be taken up for hearing, that Sessions Judge was transferred, and in his place another Sessions Judge took over charge. When the appeal came up before him for hearing, he was of the view that his predecessor had no right under the provisions of the Cr.P.C. to set aside the earlier order of dismissal of the appeal, and so the order passed by him for rehearing of the appeal was without jurisdiction. He, therefore, maintained the earlier order of dismissal of the appeal passed by his predecessor, and refused to re-hear the appeal. Aggrieved with that order, the accused challenged it before the High Court but the High Court approved the view taken by the Sessions Judge that the earlier order of dismissal of the appeal could not be reviewed. Then the accused went to the Hon'ble Supreme Court and the Supreme Court dismissing the appeal observed that the appellate court has no power to review or restore an appeal which has been disposed of and so the Sessions Judge could not set aside his earlier order dismissing the appeal when neither the appellants nor their counsel had appeared, and could not order for rehearing of the appeal. It was further held that section 369 read with section 424 of the Code (old Cr.P.C.) make it clear that the appellate Court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error. It was also held that even assuming that the Sessions Judge can exercise inherent powers, he cannot pass the order for re-hearing of the appeal in exercise of such powers when Section 369 read with section 424 of the Code (old Cr.P.C. ) specifically prohibit the altering or reviewing of its order by the Court and that inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing.