1 2025:CGHC:17992 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRMP No. 1305 of 2025 1 - Sanjay Shrivastava S/o Shri Ramesh Kumar Shrivastav Aged About 48 Years R/o In-Front House Of Manharan Lal Pandey, 27 Kholi Vikas Nagar, Police Station Civil Line Bilaspur, Presently R/o Hemunagar, Sai Mandir, Dabbu Gali, Thana Torwa, Tahsil And District Bilaspur (C.G.) Pin 495001 ... Petitioner(s) versus 1 - Rekha Verma W/o Sanjay Shrivastav, D/o Late Shri Bachchulal Verma Aged About 48 Years R/o Transfermar, Hemunagar, Murrabhata Hemunagar Road, Police Station Torwa Bilaspur, Tahsil And District Bilaspur (C.G.) Pin-495001 ... Respondent(s) For Petitioner(s) : Mr. Pankaj Singh, Advocate. Hon'ble Shri Justice Ravindra Kumar Agrawal, J. Order on Board 21/04/2025 1. The petitioner has filed the instant petition under section 528 of the Bhartiya Nagarik Suraksha Sanhita, 2023 against the impugned order dated 12.11.2024 passed by this court in Criminal Revision No. 177 of 2024, whereby the order dated 07-09-2023 passed by the learned Family Court is set aside and she was granted the interim maintenance of Rs.15,000/- per 2 month from the date of the order passed by the learned family court i.e. 07.09.2023. 2. The brief facts of the case are that the respondent was a widowed lady who came in contact with the petitioner in the year 2013-14. The petitioner was head constable at that time in the police department and posted at Bilaspur. It was alleged that they had performed marriage by exchanging garland at Mahamaya Mandir, Ratanpur, and started living together. They resided together from 21-08-2014 to 19-06-2019. During residing together, the petitioner assured the respondent that he is also a divorced person. The respondent was the sanitization contractor at Municipal Corporation, Bilaspur at that time and was having sufficient source of income. An amount of about Rs. 55 lakhs of the respondent, which was in her bank account, was being utilized by the petitioner in purchasing a house, car, motorcycle etc. Some of the amount was also sent to the bank account of the daughter of the petitioner who was imparting medical education in China. After enjoying the luxurious life and the funds of the respondent, the petitioner left her in a very poor financial condition and threatened her that if she made any complaint to anyone, he would kill her. 3. On 18.08.2021, the respondent filed an application under section 125 of the Code of Criminal Procedure, before the learned Family Court, Bilaspur for grant of monthly maintenance amount of Rs. 28,000/- per month, which was registered as M.J.C. No. 457 of 2021. Along with the application, an application for grant of interim maintenance amount has also been filed in which she claimed Rs. 20,000/- per month as interim maintenance during the pendency of the main application. 4. The application filed by the respondent for grant of interim maintenance was decided on 07.09.2023 by the learned Second Additional Principal Judge, Family Court, Bilaspur and the same was dismissed by holding that there was no sufficient proof of their marriage. The said order dated 07.09.2023 3 passed by learned Family Court was challenged by the respondent before this court by filing Criminal Revision No. 177 of 2024. The said Criminal Revision No. 177/2024 came up for hearing on 12-11-2024 and after hearing the parties, this court has set aside the impugned order dated 07-09-2023 and granted Rs. 15,000/- per month as the interim maintenance amount to the respondent which is payable from the date of order passed by the learned Family Court i.e. 07-09-2023. The present petitioner is seeking the recalling/modification of the said order dated 12-11-2024 and to reconsider the same. 5. Learned counsel for the petitioner would submit that in para 17 of the order under challenge, it has been recorded that the petitioner (respondent in CRR No. 177/2024) is earning Rs. 55,000/- per month whereas the petitioner is dismissed from service on 20-09-2022 itself i.e. much prior to the passing of the order dated 12-11-2024. The petitioner is having no source of his income and is not in any employment. The petitioner is having a legally wedded wife and family is dependent upon him. He would also submit that there is no valid marriage between the petitioner and the respondent and she failed to establish the marital relationship, therefore, the petitioner cannot be compelled to pay maintenance to her. He would rely upon the judgment of Hon’ble Supreme Court passed in the case of “State of Punjab v. Davinder Pal Singh Bhullar and Ors.”2011 (14) SCC 770 and would submit that while invoking the inherent powers under Section 528 of the BNSS, 2023 (Section 482 of Cr.P.C.), this court has ample power to recall/modify the impugned order in the interest of justice and to prevent the miscarriage of justice. Therefore, the impugned order may be recalled/modified and to reconsider the order dated 12-11-2024 passed by this court. 6. I have heard learned counsel for the petitioner and perused the documents annexed with the petition. 4 7. By way of the present petition, the petitioner seeks to recall/modify the order dated 12.11.2024 on the ground that in para 17 of the order dated 12.11.2024, there is an observation that the petitioner is a police constable and earning Rs. 55,000/- per month as his salary, but he has been dismissed from his service much prior to the date of passing of the order and is not in service and having no source of his income. The prayer made by the petitioner virtually amounts to review of the order dated 12-11-2024 passed by this court in CR.R. No. 177/2024, which is not permissible under the Criminal Procedure Code. 8. When a specific query is made to the learned counsel for the petitioner as to whether the dismissal order was filed before the learned family court prior to the passing of the order dated 12-11-2024 or made any submission to that effect, he fairly replied that no such order was filed either before the learned family court or before this court in CR.R. No. 177/2024. Even no such submission was being made while hearing of the case before this court on 12-11-2024. After hearing the parties, this court has passed the order on the basis of the material produced in the case. It was for the present petitioner to bring the complete facts and documents on record before arguing the matter finally. After passing of the order, the petitioner or any of the parties cannot say that they could not produced any particular evidence/document and by filing of the same, pray for reconsideration of the order which has already passed in the matter. The party should be vigilent about their case and to submit the entire evidence, to which they relied on their case before its conclusion. 9. The learned counsel for the petitioner relied the para 27 of the judgment of Davinder Pal Singh Bhullar (supra) in which it has been observed that where an order was obtained by abuse of the process of the court which would really amount to its being without jurisdiction, it may be recalled. It is not the case here and no order was obtained by the respondent (petitioner in 5 CrR No. 177/2024) by abuse of the process of the court. The order dated 12- 11-2024 is a byparte order and after hearing both the parties, the order was passed. At that time, the present petitioner, who was the best person to say that he is not in service and terminated, had not made any submission and had not filed any document to that effect. In that very judgment of Davinder Pal Singh Bhullar (supra), the Hon’ble Supreme Court has held in para 44 to 49 that once the order has been passed and signed, it can not be corrected except for clerical or arithmetical error. Para 44 to 49 of the judgment are as under:- "44. There is no power of review with the criminal court after the a judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 CrPC is based on an acknowledged principle of law that once a matter is finally disposed of by a court, the said court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final disposal bis set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. There is also no provision for modification of the judgment. (See Hari Singh Mann v. Harbhajan Singh Bajwa³¹ and Chhanni v. State of U.P.32). 45. Moreover, the prohibition contained in Section 362 CrPC is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 CrPC has no authority or jurisdiction to alter/review the same. (See Moti Lal v. State of M.P.33, Hari Singh Mann³¹ and State of Kerala v. M.M. Manikantan Nair34.) 46. If a judgment has been pronounced without jurisdiction or in d violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to 6 recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 CrPC would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide Chitawan v. Mahboob Ilahi35, Deepak Thanwardas Balwani v. State of Maharashtra 36, Habu v. State of Rajasthan37, Swarth Mahto v. Dharmdeo Narain Singh38, Makkapati Nagaswara Sastri v. S.S. Satyanarayan39, Asit Kumar Kar v. State of W.B. 40 and Vishnu Agarwal v. State of U.P.41). 47. This Court by virtue of Article 137 of the Constitution has been invested with an express power to review any judgment in criminal law and while no such power has been conferred on the High Court, inherent power a of the court cannot be exercised for doing that which is specifically prohibited by the Code itself. (Vide State v. K.V. Rajendran42.) 48. In Sooraj Devi v. Pyare Lal43 this Court held that the prohibition in Section 362 CrPC against the Court altering or reviewing its judgment, is subject to what is "otherwise provided by this Code or by any other law for the time being in force". Those words, however, refer to those provisions b only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 CrPC and, therefore, the attempt to invoke that power can be of no avail. 49. Thus, the law on the issue can be summarised to the effect that the criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law." 10. The relief claimed by the present petitioner virtually amounts to review of the order dated 12-11-2024 passed by this court which is not permissible under the Code of Criminal Procedure, 1973 or under the Bhartiya Nagarik 7 Suraksha Sanhita, 2023. There is no error apparent on the face of the record or clerical or arithmetical error in the impugned order. The documents, though available had not been filed and not submitted in the case and subsequent filing of the same after passing of the order does not make entitled the present petitioner for rehearing of the case. 11. In view of the above, I do not find any ground to allow the petition and to recall/modify the order dated 12-11-2024 passed by this court in Cr.R. No. 177/2024. Accordingly, the present petition is dismissed. Sd/- (Ravindra Kumar Agrawal) Judge Alok ALOK SHARMA Digitally signed by ALOK SHARMA Date: 2025.05.06 12:17:59 +0530