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INTRODUCTION
Section 362 of the code of criminal procedure forms the basis of the entire code. This section has had an important role to play in the criminal procedure. This section has been mentioned in chapter XXVII of the code and has been very vital for the determination of reviewing or recalling of a judgment in various instances.
This article provides for a basic understanding regarding the meaning, general rule, exceptions and various precedents that have been given for the better explanation and increase of scope of this section.
MEANING
Section 362 can be seen as a simple section consisting of a few words which seem pretty easy to understand but the main confusion arises with the general rule and exceptions of this section.
Section 362 has been mentioned as follows in the Code of Criminal Procedure, 1973:
“362. Court not to alter judgment– save as otherwise provided by this code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”
Section 362 CrPC is based on acknowledgement principle of law that once the matter is finally disposed of by a Court, the said Court in the absence of any specific statutory provision becomes functus officio and disentitledto entertain a fresh prayer for reviewing the judgment unless the former judgment is set aside by a court of a competent jurisdiction in a manner prescribed by law.
In the case of Jawahar Yadav v. State of Chhattisgarh[1], the Supreme Court had held that by way of Section 362 CrPc, the CrPC does not even authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction.
As per the black Dictionary, the words ‘recall a judgment’ means to revoke, or reverse a judgment for matters of fact; when it is annulled by reasons of errors of law. It is said to be “reversed”. Whereas, the words ‘review’ means to examine judicially, a reconsideration, second view or examination, revision, consideration for purposes of correction and used especially of the examination of a cause by an Appellate Court, and of a second investigation.
This section can be divided into two parts i.e. the general rule and the exception as expressly mentioned in the section.
The scope of S. 362 CrPC with regard to S. 482 of the code was provided by the Supreme Court in the case of Manohar Nathu Sao Samarth v. Marat Rao[2] which were summarised by the full bench of Rajasthan High Court in the case of Habu v. State (F.B.)[3] which are as follows:
1. That the powers to deal with the case must flow with the statute.
2. That the powers given under Section 362 CrPC given to the Court for reviewing or altering is limited only for correcting an arithmetical or clerical error and specifically prohibits Courts from touching he judgment by taking away the powers altering or reviewing the judgment or the final order and as such principle of functus officio has been accepted.
3. That the prohibition contained in S. 362 CrPC is not only restricted to the Trial Court but also extends to Appellate Court or the Revisional Court.
4. That the inherent powers of the Court cannot be invoked where there is an express prohibition and in other words, Section 482 cannot be invoked.
GENERAL RULE
The general rule expressly provides for the court not to alter its judgment. This means that once a judgment has been signed by any court of law, the same cannot be recalled back for any amendments.