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ABOUT THE AUTHOR

Advocate Dr. Rau P S Girwar is an esteemed advocate and has been involved in the field of law since 2010 and has contested cases in the Supreme Court of India and various high courts including the Punjab and Haryana High Court, Delhi High Court, Indore High Court and various district and sessions courts.

He has an excellence and experience in civil, criminal, constitutional and service matters and has a wide range of experiences in various matters including money laundering, narcotic and murder cases.

This article has been written with assistance of his junior Kushaatula Puhanian, who is a third year law-student studying at the Guru Gobind Singh Indraprastha University, New Delhi.

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.

EXCEPTIONS

There are a few exceptions that have been expressly mentioned in this section while the other exceptions are those that have evolved by way of precedents given by the Supreme Court and various other High Courts.

1. There being an arithmetical error in the judgment or order.

2. There being clerical error in the judgment or order.

3. The judgment not being of the nature as disposing the case.

4. The judgment or order being interlocutory in nature.

5. The aggrieved party not being heard before passing of the order or judgment.

6. The order or judgment not being signed or sealed by the respective judicial officer i.e. the judge presiding over the case.

7. The order being of a complaint as had been dismissed under section 203 or section 249 of the code.

8. The case falls under the circumstances of section 397 of the code.

9. An order for the recalling of the order by inferior court has been passed by the High Court exercising its powers under S. 482 of the code.

In the case of B.R.V. Satyanarayana v. The State[4] it was held that it is a universal principle of law that when a matter has been finally disposed of by a Court, such Court is functus officio in respect of that matter. In the absence of a direct statutory provision, the Court which became functus officio cannot entertain a fresh prayer for the same relief unless and until the previous order of final disposal has been set aside. It is this cardinal principle that has been incorporated in Section 362 of the Code. Admittedly, there is no provision in any other law permitting the High Court to alter or review a final order passed by it in a criminal revision case. Inherent powers under Section 482 cannot be exercised to do what the Code specifically prohibits the Court from doing. When Section 362 expressly prohibits the Court from altering or reviewing its final order after the same is signed, it would not be open to High Court to review or alter the order by admitting a fresh revision application.    

REVIEW PETITION V. RECALL PETITION: THE DIFFERENCE

While a review petition is based on the dismissal of a case on the basis of merits where the court considers the case on merits, in case of a recall petition the court does not go into merits of the case but when the opportunity of being heard was not given to an affected party.[5]   

As per Law Lexicon, the word ‘Review’ means a fresh view of matters already examined and an act of loading, offer something again with a view to correction or improvement. As per Agarwala’s Legal Dictionary, the word ‘Review’ means the process under which a court in certain circumstances can reconsider its own judgment, a general survey or re-examination, a retrospective survey of past actions etc. (Order 47 C.P.C). As per Pitman’s Dictionary of English Shorthand, the word ‘Recall’ means a calling back, to call back, to revoke, to bring back to memory, whereas the word ‘review’ means looking back, retrospect, a critical examination, as inspection, a written criticism, to view again.[6]

From a cumulative reading of the meanings given to the words ‘Review and Recall’ by the various dictionaries and the provisions of S. 362 and 482 of the Code, it can be deducted that ‘recall’ is complete abrogation of a judgment or a final order, whereas ‘review’ presupposes continuance of initial judgment or final order with some changes or re-examination and re-consideration of the judgment or final order. So, the power of recalling is different than the power of reviewing the judgment or final order.

JUDGMENT

The whole section revolves around the word ‘judgment’ which has not been as such defined in the code but which has been interpreted by the Supreme Court and various High Courts time and again.

The Sind High Court in the case of Mt. Harbai v. Raya Premji[7] defined the word judgment as some final determination of the case which would end it once for all. An example of which can be the order of conviction or acquittal.

The judgment as has been mentioned in the order should be of the nature as disposing of the case. The word disposing of a case means making the value of a case to zero after hearing and considering the opinion of the both the sides. It simply refers to the completion of a case in the court of law. A case can be disposed of by various methods:

1. An order of acquittal.

2. An order of conviction.

3. An order of dismissal of a case on merit.

4. An order of dismissal of a case as withdrawn.

5. Disposal of a petition with direction to the Respondents.

6. Dismissal of a petition on default. 

Out of all the methods of disposing of a case, the only method where an order can be recalled is when a petition has been dismissed on merit i.e. when opportunity of being heard has not been provided to the party whose interest is involved in the petition. If the counsel of the other party has a reasonable cause for non-appearance in the case during the argument, then the same order can be recalled by the court using the inherent powers provided to the high court under section 482 CrPC.  

The Jammu and Kashmir high Court in the case of Sonaullah Mir v. State[8] had stated that an order of discharge passed without consideration of the merits of the case does not amount to judgment.

In the case of Md. Sauman Ali v. State of Assam[9] that a case or appeal dismissed at default for absence of the prosecuting party or their advocates, where the party id represented by advocates by an order without going into merits does not come under the ambit of ‘judgment’ under section 362 of CrPC. So, the court dismissing the appeal for default can restore it to a pending fie, if the defaulting party can show good cause for the default. This is pari materia to the case titled Keralakumaran v. State of Kerala[10].

The Calcutta High Court in the case titled Damu Senapati v. Sirdhar Rajwar[11] that a judgment means an expression of opinion of judge arrived at after due consideration of the evidence and arguments, if any.

In the case of Emperor v. Nandlal Chunnilal Bodiwala[12] it was held that the judgment of a High Court in its criminal jurisdiction is ordinarily final and does not therefore, require the statement of any reasons, especially in a revisional application where the parties need not be heard.

In the case of Mohd. Shoaib v. Abu Bakar[13] it was held that ordinarily, there would be no difference between a petition which is dismissed on merit and a petition which is dismissed as withdrawn. This means that such scenarios do not act as exceptions to S. 362 CrPC and cannot therefore be recalled.

JUDGMENT NOT SIGNED BY THE COURT

A judgment which is not signed by the Court forms no bar in the scope of Section 362 of the Code. In the case of Kushalbhai Ratanbhai Rohit v. State of Gujarat[14] the order was dictated by the Court, but had not been signed. Recall of Order by High Court was considered as proper in view of S. 362 CrPC. 

In the case of Sangam Lal v. Rent Control and Eviction Officer, Allahbad[15] a full bench decision wherein interpretation to the High Court Rules was given and it was held that there is power of review in both cases where the judgment has been delivered but not signed and cases in which judgment has been delivered, signed and sealed. In the former case, the power to alter or amend or even to change completely is unlimited provided notice is given to the parties and they are heard before the proposed change is made, while in the latter case the power is limited and review is permitted only on very narrow grounds. Hence, a judgment which has been orally dictated in open court can be completely changed before it is signed and sealed provided notice is given to all parties concerned and they are heard before the change is made.

CLERICAL AND ARITHMETICAL ERROR: MEANING

Clerical and arithmetical errors are those errors which can only be explained by considering it as a slip or mistake while the making of an order or judgment. While arithmetical error means the mistake of calculation, the clerical error can be described as a mistake in writing or typing.

CASE NOT DISPOSED ON MERITS

What has to be kept in mind is recalling of an order is possible only when the case was not considered and disposed of on merits of the case. But, once the judgment or order is passed considering the case on merits and signed, it is not open to the court to recall the order just because the parties or their respective advocates were not heard.

The following were the observations with regard to disposal of a case on default by the full bench of the Rajasthan High Court in the case of Habu v. State (F.B.)[16]:

1. Right of the accused to be heard is his valuable right which cannot be taken away by any provision of law.

2. If the accused has not been given an opportunity of being heard or is not provided with the Counsel when not duly represented it will be volatile of principles of natural justice as well as Article 21 of the Constitution.

3. That to provide defence Counsel in case the accused is not in a position to engage is fundamental duty of the State and has throughout been recognised and now incorporated in section 304 CrPC and in Article 39A of the Constitution.

4. That bar of review or alter is different than the power of recall.

5. That inherent powers given under section 482 CrPC are wide enough to cover any type of cases if three conditions mentioned therein so warrant, namely

• For the purpose of giving effect to any order passed under the Code of Criminal Procedure;
• For the purposes of preventing the abuse of the process of any court; and
• For securing the ends of justice.

6. The principle of audi alteram partem shall be violated if right of hearing is taken away.

7. That when the judgment is recalled it is complete obliteration/ abrogation of the earlier judgment and the appeal or the revision, as the case maybe, has to be heard and decided afresh.

8. That a Court subordinate to High Court cannot exercise the inherent powers and the Code restricts it to the High Court alone.

9. That no fixed parameters can be fixed and hard and fast rule also cannot be laid down and Court in appropriate cases where it is specified that one of the three conditions of Section 482 Criminal Procedure Code are attracted should interfere. 

In the case of State of Maharashtra v. Sunder P. Lalvani[17] it was held that where a review is not permissible, a recall is also not permissible. Even if the inherent powers under section 482 CrPC are to be invoked, it would not be open to the High Court to permit something thereunder which is specifically prohibited under section 362 CrPC.

When an appeal has been rejected in consequence of non-appearance of the appellant’s pleader, and an adequate excuse was subsequently given to the satisfaction of the court, it was competent to the court to re-hear the appeal, though it should be sparingly used.

In the case of Brij Bhushan Singhal v. CBI[18] it was held that it is not open to the special judge to modify or review his order except for the limited reasons given in S. 362 of the code but this embargo cannot be applied to the High Court exercising its powers under section 482 CrPC.

The Madras High Court held in the case of Gangadharabhatla Satyanarayana v. Mudi Narayanaswami[19] that there was no objection to the maintainability of a second revision petition when the first one had reason of default for failure but not on merits. Hence, when a matter is disposed of by reason of default, there should be no objection to the re-entertainment of a second application for the same relief.

In Re Anthony Doss[20] it was held that the High Court never has any inherent power to alter or review its own judgment in a criminal case once it has been pronounced and signed, particularly where the appellant or his counsel were not heard on account of their own default.

In the cases of Dahu Raut v. Emperor[21] and Prem Mahton v. Emperor[22], it was held that there is no inherent power in the High Court under section 482 CrPC to alter or review its own judgment once it has been pronounced except in cases where it was passed without jurisdiction or in default of appearance i.e. without affording an opportunity to the accused to appear.     

The Lahore High Court in the case of Muhammad Sadiq v. Emperor[23] held that where an appeal has been dismissed without the appellant or his pleader being given a reasonable opportunity of being heard in support of the same, the order dismissing the appeal must be held to have been passed without judgment and the Court has inherent power to make an order that the appeal should be re-heard after giving the appellant or his counsel a reasonable opportunity of being heard in support of the same.

In the case of Emperor v. Shivadatt[24] it was held that wherein owing to the counsel’s carelessness in not appearing in the Court at the time when a case is called out for hearing, his client’s case goes unrepresented and an ex parte order is passed, the High Court has jurisdiction under Section 561-A (section 428 of the new Code) of the Criminal Procedure Code to entertain an application to re-hear the matter if, in its discretion, it considers it necessary to do so in order to secure the ends of justice. 

In the case of Deepak Thanwardas Balwani v. State of Maharashtra[25] it was held that in its inherent powers as provided under Section 482, Criminal Procedure Code, 1973, the High Court can review or revise its judgment is such a judgment is pronounced without giving an opportunity of being heard to party who is entitled to a hearing and that party is not at fault. For the mistake of Court, a party cannot suffer.

In the case of Rafiq v. Munshilal[26] it was held by the Supreme Court that where an appeal filed by the appellant was disposed of in absence of his counsel, so also was his application for recall of order of dismissal rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who as per the present adversary legal system has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel.

In the case of Md. Sukur Ali v. State of Assam[27] the Apex Court had observed that liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and liberty is the most important fundamental right of the fundamental rights guaranteed by the Constitution. Article 21 can be said to be the heart and soul of the fundamental rights. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case. Hence, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a counsel, there will be violation of Article 21 of the Constitution. As such even if the counsel of the accused does not appear because of his negligence or deliberately, even then the court should not decide a criminal case against the accused in the absence of his counsel since an accused in a criminal case should not suffer for the fault of his counsel and in such a situation the Court should appoint another counsel as amicus curiae to defend the accused.

In the case of Vishnu Agarwal v. State of U.P. & Anr.[28] The Hon’ble Court was pleased to observe that it often happens that sometimes a case is not noted by the Counsel or his clerk in the cause list and hence, the Counsel does not appear. This is a human mistake and can happen to anyone. Hence, the High Court recalled the order on dated 02.09.2003 and directed the case to be listed for fresh hearing. The aforesaid order recalling the order dated 02.09.2003 which has been challenged in the Hon’ble Apex Court was maintained on the ground that Section 362 cannot be considered in a rigid and over-technical manner to defeat the ends of justice and that application filed by the petitioners was for recall of the order and not for review or alter of the same.     

In the case of Shri M.S. Tripathi v. Shri C.H. Ramakrishna Rao & Anr.[29] The Hon’ble Single judge while recalling its final judgment in a revisional application observed that in our adversarial system of law, no man can be condemned unheard. It is the reasonable opportunity of hearing in the due process of law is the hallmark of our Criminal Justice System.

In the case of Kalyani Bhaskar(Mrs.) v. M.S. Sampoornam(Mrs.)[30] it was held that fair trial includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. It is essential that rules of procedure designed to ensure justice should be scrupulously followed.

In the case of A.R. Antulay v. R.S. Nayak[31] the Hon’ble Apex Court has held that no man should suffer cause because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules of procedure are the handmaid of justice and not the mistress of justice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be redeemed.

In the case of Zahira Habibullah Sheikh v. State of Gujarat[32], the Hon’ble Court held that failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an over hasty stage-managed and partisan trial. 

INTERLOCUTORY ORDERS: MEANING

The Webster’s New World Dictionary defines an interlocutory order as an order other than the final decision. These are orders that only settle intervening matter relating the cause. An example of this can be a bail application in a case registered under S. 302 IPC. Such orders are made to secure some end and purpose necessary and essential to the progress of case and generally collateral to the issues to be settled by the Court in the final judgment.

Since, interlocutory orders are nor final orders and do not dispose of a case in the Court of law, they are no bar under Section 362 of the Code and can be recalled or reviewed by the Court of law as according to the discretion of the Court.  

CAN THE MAGISTRATE RESTORE A CASE?

In the case of KR Shashidra v. Sivaram Puttaraya[33] it was held that the magistrate has got the power to dismiss the complaint, but he has no power to restore the same. In absence of any specific provision in the code, a magistrate cannot exercise any inherent jurisdiction to restore the case.

In the case of Dwarkanath v. Beni Madhub[34] it as held that S. 362 CrPC is no bar to an order by a magistrate taking fresh proceedings in a case in which the accused was being discharged or the complaint has been dismissed.

In the case of Emperor v. Chinna Kalippa[35] it was held that it is open to a magistrate to re-hear a complaint which he dismissed by an order of dismissal under section 203 although the order has been set aside by the High Court. A magistrate has the power to revive a complaint dismissed on default under section 249 CrPC.      

WRIT OF HABEAS CORPUS

A writ of habeas corpus remains to be an exception to the exceptions of section 362. It was held in the case of Maledath Bharathan Malyali v. Comm. Of Police[36] that there is no power to review of habeas corpus application which has been rejected by the High Court.

CONCLUSION

Section 362 does not allow for review or recalling of an order disposing of a case subject to statutory provisions and fulfilling the essential components of natural rights which cannot be deferred on absence of the counsel or the accused, which serves as a divergence from the principles of natural justice. Where if the right of one party is condemned unheard, then the dismissal in default is recalled to secure end of justice and to award justice as no accused person can be deprived from the opportunity of being heard. Hence, section 362 CrPC does not bar recalling of order in circumstances where there has been dismissal on default. The absence of accused serves as a prejudice to the aggrieved. Whereas, the same order for a tagged matter is not applicable in such circumstances as every person has the right to be heard on merit.        

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[1] 2006 Cri LJ 2078.

[2] AIR 1979 SC 1084.

[3] AIR 1987 Rajasthan 83.

[4] 1977 Cri LJ 1038 (Andh Pra).

[5] Vishnu Aggarwal v. State of UP AIR 2011 SC 1232.

[6] Vijay Sri v. State of AP and Anrs. 2007(50) AIC 892.

[7] AIR 1939 Sind 193 : (1939) 40 Cr.L.J. 745 (F.B.).

[8] 1977 Cr.L.J. 302 at p.303 (J.&K.).

[9] 1994 Cr.L.J. 2809 at p.127.

[10] 1995 (4) Crimes 835 at p.841 (Ker.)

[11] I.L.R. 21 Cal 122 at p.127.

[12] 48 Bom. L.R. 41 at p.44 : AIR 1946 Bom. 276.

[13] P.L.D. 1998 Lahore 125 at p. 130-31.

[14] A.I.R. 2014 S.C. 2291 at p. 2293.

[15] AIR 1966 Allahabad 221.

[16] AIR 1987 Rajasthan 83.

[17] 1992 Cr. L.J. 2015 at p.2019 (Bom.)

[18] 1995 (1) Crimes 643 at p. 644 (P. & H.)

[19] (1960) Andh. W.R. 298 at p. 301.

[20] (1963) 1 M.L.J. 393.

[21] I.L.R. 61 Cal. 555.

[22] I.L.R. 14 Pat. 392.

[23] AIR 1925 Lahore 355.

[24] 111 Ind Cas 573 : AIR 1928 Oudh 402.

[25] (1984) 1 Crimes 736 : (1985 Cri LJ 23).

[26] AIR 1981 Supreme Court 1400.

[27] 2011 Cri.LJ SC 1960.

[28] Unreported decision, 2011 STPL (Web) 171 SC.

[29] (2010) 1 C Cr L R (Cal) 391.

[30] (2007) 2 SCC 258.

[31] (1988) 2 SCC 602.

[32] (2006) 3 SCC 374.

[33] 1996 Cr. L.J. 1267 at p. 1269 (Kant.)

[34] I.L.R. 28 Cal. 652.

[35] (1906) ILR 29 Mad 126.

[36] 52 Bom L.R. 268 at p. 275 : A.I.R. 1950 Bom. 202.