AS PER CRPC 362 RECALL IS ALLOWED BUT NOT REVIEW. RECALL THE WRONG ORDER IF YOU HAVE GROUNDS.
NO TIME LIMIT FOR RECALLING THE ORDER.
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Mumbai: Many times court accidentally slip important point which are in favour of applicant and pass adverse order . The orders are some times against supreme court or high court ruling . So in JMFC and session court order cannot be reviewed as per CRPC 362
A careful perusal of the aforesaid section 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"
The 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.
IMPORTANT CITATIONS
In Asit Kumar Vs. State of West Bengal and Ors. 2009(1) SCR 469, this Court made a distinction between recall and review which is as under:-"There is a distinction between ...... a review petition and a recall petition. While in a review petition, the Court considers on merits whether there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association Vs. Raghabendra Singth & Ors. [2007(11) SCC 374] cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences."
Supreme Court of India
Vishnu Agarwal vs State Of U.P. & Anr on 22 February,
2011
[2011 Crl. L.J. 1744 (SC)]
In our opinion, Section 362
cannot be considered in a rigid and over technical manner to defeat the ends of
justice. "The Court should not give its decision
based only on the letter of the law.
For if the decision is wholly unreasonable,
injustice will follow."
Apart from the above, we are of the opinion
that the application filed by the respondent was an application for recall of
the Order dated 2.9.2003 and not for review. In Asit Kumar Vs. State of West
Bengal and Ors. 2009(1) SCR 469, this Court made a distinction between recall
and review which is as under:-
"There is a distinction between ...... a review
petition and a recall petition. While in a review petition, the Court considers
on merits whether there is an error apparent on the face of the record, in a
recall petition the Court does not go into the merits but simply recalls an order which was passed without
giving an opportunity of hearing to an affected party. We are treating this
petition under Article 32 as a recall petition because the order
passed in the decision in All Bengal Licensees Association Vs. Raghabendra
Singth & Ors. [2007(11) SCC 374] cancelling certain licences was passed
without giving opportunity of hearing to the persons who had been granted
licences."
Ram Abhilakh Vs. State of
U.P.; 2007 AIR (SCW) 922
In Ram Abhilakh's case (supra), a
criminal revision was dismissed in absence of appellant's counsel. A recall
application was moved by the applicant which was also dismissed. The matter
went to Supreme Court where it was submitted that because of circumstances
beyond control there could be no appearance of the counsel when the matter was
taken up. The Apex Court considering the fact that prior to the date of
disposal the appellants were diligently pursuing the remedy, set aside the
order of High Court and directed it to hear the matter on merit after hearing
learned counsel for both the parties.
Santosh Vs. State of U.P.; 2009 (65) ACC 224
The judgment in Santosh's case (supra)
also reveals almost similar facts. In this case, Hon'ble Single Judge of this
Court had dismissed the revision petition filed by the revisionist Santosh. Two
revisions were pending in the same matter. However, the matter was taken up by
Hon'ble Single Judge ex-parte and the revision was dismissed. An application
for recall was filed which was also dismissed on the ground that the order
sought to be recalled was passed on merits and, therefore, it cannot be
recalled. During the hearing before Hon'ble Supreme Court learned counsel for
the appellant indicated various reasons for non appearance on the date when the
matter was taken up. Under these circumstances, the Apex Court set aside the
ex-parte order and remanded the matter to the High Court for afresh
consideration on merits.
Allahabad
High Court
Central Bureau Of Investigation vs State Of U.P. & Others on 20
November, 2015
“Now the question is whether a criminal court
has power to recall its order. There is no doubt that Section 362 Cr.P.C.
which is reproduced below creates a bar in this respect :
"S. 362. Court not to after judgement.
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."
A careful perusal of the aforesaid section
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"
The 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.
..... In view of the aforesaid discussion 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.
--------------------------------------------
RECALL OF CRIMINAL ORDER
The Supreme Court has made it clear that a recall order is distinct from a review of order, that a recall cannot be refused by strictly applying provisions of Section 362 of the Cr.P.C. (see the decision in Vishnu Agarwal v. State of U.P. and Another [2011 Crl. L.J. 1744 (SC)] etc.). Moreover, when the dictum laid down by the Hon'ble Supreme Court is not considered, it is a serious matter and therefore, there is no legal impediment in recalling the orders in the above Crl. M. C.s. The orders allowing the Crl. M.C.s are hereby recalled, suo motu.
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Recall of order CRPC 362 allahabad HC
https://indiankanoon.org/doc/144514360/
"S. 362. Court not to after judgement. 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."
A careful perusal of the aforesaid section 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"
The 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.
---------------_-----_-----_-----
Apart from the above, we are of the opinion that the application filed by the respondent was an application for recall of the Order dated 2.9.2003 and not for review. In Asit Kumar Vs. State of West Bengal and Ors. 2009(1) SCR 469, this Court made a distinction between recall and review which is as under:-
"There is a distinction between ...... a review petition and a recall petition. While in a review petition, the Court considers on merits whether there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association Vs. Raghabendra Singth & Ors. [2007(11) SCC 374] cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences."Supreme Court of India
Vishnu Agarwal vs State Of U.P. & Anr on 22 February, 2011
Author: .......................J.
Bench: Markandey Katju, Gyan Sudha Misra
https://indiankanoon.org/doc/566105/
Because
it is settled law that no act of the Court should harm a litigant and it is the bounden duty of Courts to see that if a
person is harmed by a mistake of the Court he should be restored to the
position he would have occupied but for that mistake, vide, inter alia, AIR 1966 SC 1631, Jang Singh v Brij Lal & others:
“There is no higher principle for the
guidance of the Court than
the one that no
act of Courts should harm a litigant and it is he
bounden duty of
Courts to see that if a person is harmed by a
mistake of the
Court he should be restored to the position he
would have
occupied but for that mistake. This is aptly
summed up in the maxim: "Actus curiae neminem
gravabit".”
The same is the
ratio of Jagat Dhish Bhargava v Jawahar
Lal
Bhargava, AIR 1961 SC 832:
“(T)here can be no doubt that the litigant deserves to be protected
against the default committed or negligence shown by the Court or its officers in the discharge of their duties. As
observed by Cairnes, L. C. in Rodger v. Comptoir d'Escompte de Paris as early
as 1871 "one of the first and highest duties of all Courts is to take care
that the act of the Court does no injury
to any of the suitors"”
The same is the ratio of Samarendra
Nath Sinha v Krishna Kumar Nag, AIR 1967 SC 1440:
“Now, it is well-settled that there is an inherent power in the court
which passed the judgment to correct a clerical mistake or an error arising
from an accidental slip or omission and to vary its judgment so as to give
effect to its meaning and intention. "Every court," said Bowen L. J.
in Mellor v. Swira "has inherent
power over its own records so long as those records are within its power and
that it can set right any mistake in them. An order even when passed and
entered may be amended by the court so as to carry out its intention and
express the meaning of the court when the order was made."
The Hon'ble Supreme Court in "State of Orissa vs Mamata Mohanty", (2011) 3 SCC 436 it has been held
that the High Court must correct errors
committed by it instead of allowing it to remain on record. This is what it was held:
"This principle also applies to
judicial pronouncements. Once the court comes to the conclusion that a wrong
order has been passed, it becomes the solemn duty of the court to rectify the
mistake rather than perpetuate the same. While dealing with a similar issue,
this Court in Hotel Balaji and Ors. v. State of A.P. and Ors. ,AIR 1993 SC 1048 observed as under:
..................To perpetuate an error is no heroism. To rectify it is the compulsion of judicial conscience. In this, we derive comfort and strength from the wise and inspiring words of Justice Bronson in Pierce v. Delameter (A.M.Y. at page 18: `a Judge ought to be wise enough to know that he is fallible and, therefore, ever ready to learn: great and honest enough to discard all mere pride of opinion and follow truth wherever it may lead and courageous enough to acknowledge his errors."
Great information by Indian RTI
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