2015 (11) TMI 1841 - HC - Indian Laws

Seeking recall of order - power of criminal court to review its own order - difference between review and recall - the fact about the pendency of one more criminal revision against the same impugned order was informed to this court within 5 minutes of passing of the order - Principles of natural justice - opportunity of hearing not provided to the applicants - HELD THAT - There is no dispute that the opposite party nos. 2 3 and 4 were not given opportunity of hearing when this Court passed the order dated 7.3.2013. Whether a criminal court has power to recall its order? - HELD THAT - Section 362 Cr.P.C. reveals that a Court is not authorised to alter or review its judgment except for the limited purpose of correcting some clerical or arithmetical error. However there is a saving provision also because Section 362 Cr.P.C. starts with the words Save as otherwise provided by this Code or by any other law for the time being in force - saving provision is section 401 Cr.P.C. which clearly provides that no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. So far as the power to recall its order by a court dealing with criminal matter is concerned the judgment of Hon ble Supreme Court discussed earlier makes a clear distinction between review and recall and authorises a criminal court to recall its order in case it suffers from some technical error or has been passed ex-parte without giving opportunity of hearing to opposite party. This Court is of the firm view that Section 362 Cr.P.C. only bars a review of the order. It does not bar recall of any order specially if the order has been passed ex-parte against the principle of natural justice - the recall application is allowed.

Summary

Issues Involved:
1. Recall of the ex-parte order dated 7.3.2013.
2. Violation of the principle of natural justice.
3. Maintainability of the recall application under Section 362 Cr.P.C.
4. Distinction between "review" and "recall" in criminal proceedings.

Detailed Analysis:

1. Recall of the Ex-parte Order Dated 7.3.2013:
An application was filed to recall the order dated 7.3.2013, which was passed ex-parte in a criminal revision. The applicants argued that their counsel was unavailable due to engagements in another court and requested an opportunity to be heard. The court had passed the order without hearing the applicants' counsel, which led to the request for recalling the order.

2. Violation of the Principle of Natural Justice:
The applicants contended that the order dated 7.3.2013 was passed in violation of the principle of natural justice as they were not given an opportunity to be heard. The court acknowledged that the opposite party nos. 2, 3, and 4 were not present during the hearing and were not given a chance to present their case, thus violating the principle of natural justice.

3. Maintainability of the Recall Application Under Section 362 Cr.P.C.:
The opposing counsel argued that the recall application was not maintainable under Section 362 Cr.P.C., which bars the court from altering or reviewing its judgment once it has been signed and finalized. However, the court noted that Section 362 Cr.P.C. includes a saving provision that allows for exceptions as provided by the Code or any other law in force. The court further examined the distinction between "review" and "recall" and concluded that Section 362 Cr.P.C. bars "review" but not "recall" of orders, especially when passed ex-parte and without giving an opportunity of hearing to the affected party.

4. Distinction Between "Review" and "Recall" in Criminal Proceedings:
The court referred to several judgments, including Vishnu Agarwal vs. State of U.P. and others, which clarified the distinction between "review" and "recall." A "review" involves reconsidering the merits of the case, while a "recall" pertains to procedural errors, such as passing an order without hearing the affected party. The court held that it has the inherent power to recall an order passed ex-parte to prevent injustice and ensure compliance with the principles of natural justice.

Conclusion:
The court allowed the recall application, emphasizing that Section 362 Cr.P.C. does not bar the recall of an ex-parte order passed without hearing the affected party. The order dated 7.3.2013 was recalled, and the matter was directed to be listed along with the connected criminal revision before the appropriate bench.

Order:
The recall application is allowed. The order dated 7.3.2013 is recalled. List this matter along with Criminal Revision No. 3385 of 2008 (old Criminal Revision (Defective) No. 457 of 2008) before the appropriate bench in the next cause list.