Patna High Court
Satendra RaiversusThe State of Bihar
- Decided
- Disposal
- ALLOWED
- Bench
- JITENDRA KUMAR
Holding
A criminal court cannot review its own order except to correct clerical or arithmetical errors, and since the prosecution did not challenge the earlier order, the later order allowing summons is void.
Summary
The petitioners challenged an order dated 30‑09‑2015 in which the Additional Sessions Judge allowed the prosecution to summon four witnesses under Section 311 of the Criminal Procedure Code, despite an earlier order on 11‑03‑2014 rejecting the same application. They argued that the judge had no power to review his own earlier order except to correct clerical or arithmetical errors, as mandated by Section 362 Cr.PC, and that the prosecution had a remedy to contest the 2014 order but failed to use it, rendering the later order void. The State contended that the order was justified in the interest of justice. The Court examined the statutory provisions and held that a criminal court cannot alter its own order except for clerical errors and that the prosecution’s failure to appeal the 2014 order made it final. Consequently, the petition was allowed, setting aside the 2015 order, while the Court also criticised the negligence of the trial‑court officials and the public prosecutor.
Issues considered
- Whether an Additional Sessions Judge can review or alter a prior order rejecting a prosecution's application for summoning witnesses under Section 311 Cr.PC.
- Whether Section 362 Cr.PC bars such review except for clerical or arithmetical errors.
- Whether the prosecution had a remedy to challenge the earlier order and, if so, whether its failure to avail that remedy makes the later order untenable.
Legislation cited
- Code of Criminal Procedure, 1973 — s. 311, 313, 362, 482
Subjects
- Criminal Procedure
- Section 311
- Section 362
- Review of order
- Inherent powers
- Prosecution witnesses
- Judicial negligence
- Criminal miscellaneous petition
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
CRIMINAL MISCELLANEOUS No.18327 of 2016
Arising Out of PS. Case No.-143 Year-2009 Thana- SASARAM MUFFSIL District- Rohtas
======================================================
1. Satendra Rai, Son of Singhashan Rai, R/o vill - Bishanpura, P.s. - Sasaram,
Dist- Rohtas.
2. Santosh Rai@Manu Rai, Son of Ramehswar Rai.
3. Sanjeet Rai, Son of Janardan Rai.
4. Pradeep Kumar@Dabloo @Pradeep Rai, Son of Rajdeo Rai.
5. Ravi Rai, Son of late Babban Rai.
6. Ajeet Rai, Son of Janardan Rai.
7. Akhilesh Rai, son of Naresh Rai.
8. Anil Rai@Pintu Singh, Son of late Babban Rai, All Resident of Villl-
Bishanpura, P.S. Sasaram District Rohtas.
... ... Petitioners
Versus
1. The State of Bihar
2. Birendra Rai, S/o Late Ram Nagina Rai, R/o vill - Bishunpura, P.S. -
Sasaram, Distt. - Rohtas.
... ... Opposite Parties
======================================================
Appearance :
For the Petitioners : Mr. Bajrang Lal, Advocate
Mr. Ashok Kumar, Advocate
For the State : Mr. M.Dayal, APP
For the Vigilance : Mr. Arvind Kumar, Advocate
Amici Curiae : Mr. Anil Singh, Advocate
Mr. Siddharth Harsh, Advocate
======================================================
CORAM: HONOURABLE MR. JUSTICE JITENDRA KUMAR
ORAL ORDER
31 06-02-2026 The present Criminal Miscellaneous Petition has
been preferred by the Petitioner against the impugned order
dated 30.09.2015, passed by learned 3rd Additional District and
Sessions Judge, Rohtas at Sasaram in Sessions Trial No.195 of
2010, whereby learned Additional Sessions Judge has allowed
the application of the prosecution filed under Section 311 Cr.PC
Patna High Court CR. MISC. No.18327 of 2016(31) dt.06-02-2026
2/6
to summon four witnesses, including the informant, namely,
Virendra Rai, Abhinay Kumar, Binod Rai and Chandan Rai.
2. Heard learned counsel for the Petitioner, learned
APP for the State and learned Amici Curiae, Mr. Anil Singh,
Advocate and Mr. Siddharth Harsh, Advocate
3. Learned counsel for the Petitioner submits that the
impugned order has been erroneously passed by learned
Additional Sessions Judge in violation of Section 362 Cr.PC
which prohibits altering or reviewing an order except to correct
any clerical or arithmetical error. He refers to the order dated
11.03.2014, whereby learned Trial Court has rejected the similar
application filed by the prosecution for summoning the same
witnesses and in such situation, learned Trial Court has no
jurisdiction to review his own order. He further submits that
against the order dated 11.03.2014 passed by learned Additional
Sessions Judge, the prosecution had remedy to come to this
Court challenging the dismissal of its application for
summoning witnesses but the prosecution has not availed this
remedy and hence, this order has become absolute. Learned
Additional Sessions Judge had no power to review it,
subsequently. Hence, the order is not sustainable and it is liable
to be set aside.
Patna High Court CR. MISC. No.18327 of 2016(31) dt.06-02-2026
3/6
4. However, learned APP for the State finds that there
is no illegality or impropriety in the impugned order. In the
interest of justice, the summoning of witnesses was required.
5. However, learned Amici Curiae, Mr. Anil Singh
and Mr. Siddharth Harsh submit that as per the law, no order by
Criminal Court can be altered or reviewed except to correct the
arithmetical or clerical error. The Criminal Court had no power
to allow the similar application which he had earlier rejected.
The prosecution should have come to this Court against the
rejection order dated 11.03.2014, whereby learned Additional
Session Judge had rejected the application of the prosecution to
summon the witnesses. They also refer to the judgment, State of
Punjab Vs. Devendra Pal Singh Bhullar, as reported in 2011
14 SCC 770, wherein Hon’ble Supreme Court has held that no
Criminal Court can alter or review its own order except to
correct arithmetical or clerical error. Even the inherent power
under article 482 Cr.PC cannot be invoked by this Court
contrary to any statutory provisions as provided in 362 Cr.PC.
Hence, the impugned order is not sustainable in the eye of law
and the same is liable to be set aside.
6. At this stage, learned counsel for the Petitioner also
submits that even interest of justice does not lie on the side of
Patna High Court CR. MISC. No.18327 of 2016(31) dt.06-02-2026
4/6
the prosecution. The FIR has been lodged in this case long way
back in the year 2009 alleging that there is land dispute between
the parties and there was fisting and air firing. There is no
allegation of any gun shot injury to any alleged victim. The case
is false and frivolous. He further submits that despite sufficient
opportunity granted by learned Trial Court, the prosecution has
failed to produce any witnesses and even after the impugned
order passed in the year 2015, about ten years ago, the
prosecution has failed to adduce any witnesses and the
statement of the accused has been already recorded under
Section 313 and at this stage, re-opening of the prosecution
evidence would be grave injustice to the accused persons, who
are now at the fag end of their life.
7. I considered the submissions advanced by both the
parties and perused the material on record.
8. I find that there is no dispute that under Cr.PC,
Criminal Court cannot review its order except to correct any
clerical or arithmetical error. Even inherent power under 482
Cr.PC cannot be invoked to do something which is prohibited
under Cr.PC. Moreover, the prosecution had remedy to file
appropriate proceeding against the order dated 11.03.2014
whereby the application under Section 311 filed by the
Patna High Court CR. MISC. No.18327 of 2016(31) dt.06-02-2026
5/6
prosecution was dismissed by learned Addition Sessions Judge,
but the prosecution has not availed any opportunity, and hence,
that order has become absolute.
9. Hence, in my considered view, the petition is liable
to be allowed. Accordingly, the present petition stands allowed.
10. However, this Court is very much concerned
about the role played by the prosecution as well as the Judicial
Officers presiding over the Trial Court. The Public Prosecutor at
the Trial Court seems to be gross negligent in prosecuting the
case as well as the Judicial Officers presiding the Trial Court
have also abdicated their duty. They have failed to exhaust the
measures provided in Cr.P.C to ensure the attendance of the
relevant prosecution witnesses in the Court for their
examination. If the government agency, like police was not
discharging their duty to execute the processes, they should
have taken action against the police officials. I find nothing of
that sort in the order sheet. I have nowhere found that all the
processes were issued by learned Court against the witnesses
nor is any execution report of the processes. It reflects very
badly on the part of the Judicial Officers, who have presided
over the Trial Court from time to time. This Court is refraining
from taking any step towards disciplinary action against the
Patna High Court CR. MISC. No.18327 of 2016(31) dt.06-02-2026
6/6
Judicial Officers or any step against the prosecutor, but the
Court is not approving the conduct as shown by them. They
must be alert in future.
11. The assistance provided by learned Amici Curiae
is highly appreciated. The Secretary, Patna High Court Legal
Services Committee is directed to pay an amount of Rs.7,000/-
each to learned Amici Curiae as honorarium.
12. A copy of this order be sent to learned Amici
Curiae as well as the Secretary, Patna High Court Legal
Services Committee for information and needful.
(Jitendra Kumar, J.)
Chandan/-
U T
Checking your session…