Central Bureau Of Investigation vs State Of U.P. & Others
2015 Latest Caselaw 4366 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
A.F.R.
 
Criminal Misc. Recall Application No. 82695 of 2013
 
IN
 
Case :- CRIMINAL REVISION No. - 11 of 2009
 

 
Revisionist :- 		Central Bureau Of Investigation
 
Opposite Party :- 	State Of U.P. & Others
 
Counsel for Revisionist :- G.S. Hajela,Nazrul Islam Jafri
 
Counsel for Opposite Party :- Govt. Advocate, Sanjeev 					Kumar Pandey
 

 
Hon'ble Mrs. Vijay Lakshmi,J.

An application seeking recall of the order dated 7.3.2013 passed by this Court in aforesaid criminal revision has been filed by the applicants who are accused/opposite party nos. 2, 3 and 4 in this revision.

Heard Mr. Nazrul Islam Jafri, learned counsel for the revisionist, learned A.G.A. for the State, Mr. Satish Trivedi, learned Senior Advocate, assisted by Mr. Sanjeev Kumar Pandey, learned counsel for opposite party nos. 2 to 4 on recall application and perused the record.

In the affidavit accompanying the recall application, the applicants have stated that the instant criminal revision was listed on 7.3.2013 at Sl. No. 7 in Court no. 25. The counsel for opposite party nos. 2 to 4 was on his legs in Court No. 19 where the arguments were going on. After completing the arguments the counsel immediately rushed to Court No. 25 where he found that the order in the instant criminal revision had already been dictated. Learned counsel for opposite party nos. 2 to 4 made a request to Court to hear him also. He also informed the Court that one more Criminal Revision Defective No. 457 of 2008 (now regular number has been allotted as Criminal Revision No. 3385 of 2008) (Ramesh Chandra Goyal Vs. State of U.P.) arising out of same order dated 6.10.2008 is pending before this Court in which interim order in favour of opposite party nos. 2 to 4 is in existence but the Court did not pay any heed to the request.

Learned counsel for the applicants has submitted that when 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 dated 7.3.2013 and much before it was signed and uploaded, this Court should have given opportunity of hearing to the applicants. It was also incumbent upon the Court to hear both the revision together for avoiding two different opinions against the same order on the same issue.

On the aforesaid grounds it has been prayed that the order dated 7.3.2013 which is on the face of it, an ex-parte order, passed in violation of principle of natural justice without giving any opportunity of hearing to the applicants, be recalled and the instant criminal revision be decided afresh after giving opportunity of hearing to the applicants alongwith connected Criminal Revision (Defective) No. 457 of 2008 (now Criminal Revision No. 3385 of 2008).

A counter affidavit has been filed by Sri N.I. Jafri, learned counsel for the revisionist with averments that the applicants, who are opposite party nos. 2, 3 and 4 in the instant criminal revision were involved in a case under Section 420 readwith 120-B, 467, 468 and 471 of I.P.C. They pleaded guilty and on that basis the Special Judicial Magistrate (C.B.I.), Ghaziabad convicted them on 22.9.2004. Criminal Appeal No. 850 of 2004 was filed by the accused persons against the judgment and order dated 22.9.2004 in the court of Special Judge (C.B.I.)/Additional Sessions Judge, Ghzaiabad which was disposed of and the matter was remanded to the trial court vide order dated 6.10.2008 passed by Special Judge, C.B.I., Ghaziabad. Both parties i.e. C.B.I. And accused persons challenged the aforesaid order dated 6.10.2008 by means of two different revisions namely Criminal Revision No. 11 of 2009 and Criminal Revision (Defective) No. 457 of 2008. Vide order dated 7.3.2013 (which is sought to be recalled by means of present recall application) this Court allowed the Criminal Revision No. 11 of 2009 filed by C.B.I. Ex-parte, thereby quashing the order dated 6.10.2008 passed by Special Judge, C.B.I., Ghaziabad and remanding the matter back to Special Judge, C.B.I. for reconsideration.

Sri N.I. Jafri appearing for the C.B.I. has vehemently argued that now the insatant revision has been finally disposed of by this Court vide order dated 7.3.2013 and as such this Court has become "functus officio". Sri Jafri has raised a preliminary objection with regard to maintainability of recall application by contending that the recall application is misconceived and it is hit by Section 362 Cr.P.C. He has further argued that no prejudice has been caused to the accused/opposite party nos. 2 to 4 due to ex-parte order passed in absence of their counsel because this Court vide order dated 7.3.2013 has merely remanded the matter back to the lower court for reconsideration hence the parties will get opportunity of hearing before the lower court. He has contended that a criminal court is not empowered to recall its order which becomes functus officio once a matter has been finally decided. Hence the present recall application is not maintainable. In support of his argument Sri N.I. Jafri has placed reliance on the judgments rendered by the Apex Court in the following cases :-

1. Hari Singh Mann Vs. Harbhajan Singh Bajwa and others; (2001)1 Supreme Court Cases 169

2. State of Kerala Vs. M.M. Manikantan Nair; 2001 AIR (SC) 2145

Per contra Sri Satish Trivedi, learned Senior Advocate, assisted by Sri Sanjeev Kumar Pandey learned counsel for the applicants/opposite party nos. 2 to 4 has contended that there are several judicial pronouncements of Hon'ble Apex Court and also of this Court making the legal position very clear that there is a difference between "review" and "recall" and what is barred by Section 362 Cr.P.C. Is "review"of an order passed on merits. Sri Satish Trivedi, in support of his contention has placed reliance on the following judgments of the Hon'ble Apex Court:-

1. Vishnu Agarwal Vs. State of U.P. And another; AIR 2011 SC 1232

2. Ram Abhilakh Vs. State of U.P.; 2007 AIR (SCW) 922

3. Santosh Vs. State of U.P.; 2009 (65) ACC 224

I have carefully gone through all the judgments cited kfrom both sides and have perused the relevant legal positions.

In Vishnu Agarwal's case (supra) the facts before the Apex Court were almost the same as are before this Court. In Vishnu Agarwal's case too, a criminal revision was listed in the High Court on 2.9.2003 but no one appeared on behalf of the revisionist, though the counsel for respondents appeared. Under these circumstances the judgment was passed. Subsequently an application was moved for recall of the judgment and order dated 2.9.2003 on the ground that the revisionist had not noted the case and hence he did not appear. The High Court recalled the order dated 2.9.2003 on the ground that this was a human mistake and can happen to any one because it often happens that sometimes the case is not noted by the counsel or his clerk in the cause list. The aforesaid order dated 2.9.2003 passed by the High Court in the aforesaid case recalling its earlier order, was challenged before the Supreme Court by means of criminal appeal and reliance was placed on the case of Hari Singh Man's case (supra).

The Hon'ble Supreme Court after hearing both the parties held that Section 362 Cr.P.C. cannot be considered in a rigid and over technical manner so as to defeat the ends of justice and the court should not give its decision based only on the letter of law because if the decision is wholly unreasonable, injustice will follow. The Hon'ble Apex Court while relying on its earlier decision rendered in Asit Kumar Vs. State of West Bengal and others; 2009 (1) SCR 469 observed that there is distinction between a "review" petition and a "recall" petition. The relevant paragraph of Asit Kumar's case (supra) is reproduced 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."

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.

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.

Now reverting back to the facts of the case in hand, a perusal of the impugned order dated 7.3.2013 which has been sought to be recalled, clearly shows that this Court had heard only learned counsel for the revisionist/C.B.I. and learned A.G.A. There is no mention in this order that any counsel representing any of the opposite parties was present when the matter was taken up. The parawise reply as is given in the counter affidavit filed by C.B.I. also shows that in reply to the facts mentioned in paragraphs 3 and 4 of the affidavit accompanying the recall application stating that learned counsel for opposite party nos. 2, 3 and 4 had informed the court within 5 minutes after the order was dictated and much earlier before it was signed by the Hon'ble Single judge that he was on his legs in Court No. 19 and had also informed the Court that one more criminal revision was pending in the same matter in which an interim order in favour of opposite party nos. 2, 3 and 4 had also been passed, all these facts have not been denied by the C.B.I. and only this has been stated by C.B.I. that the contents of paragraphs 2, 3 and 4 of the affidavit filed in support of the recall application are matter of record, hence need no reply.

Thus, 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.

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 the present case the opposite party nos. 2 to 4 are accused persons and the revision filed against them by C.B.I. has been dismissed without giving the accused persons any opportunity of hearing.

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.

In the case of Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal and others ; 1981 AIR 606, the Hon'ble Supreme Court has observed as under :

"The order setting aside the ex parte award, in fact, does not amount to review. The expression "review" is used in two distinct senses, namely, (i) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (ii) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. When a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal...."

In reference case Smt. Pushpa Sareen Vs. State of U.P.; 2015 (3) ADJ 136 (FB) Full Bench of this Court while relying on Grindilays Bank Ltd.'s case (supra) has held that there is a distinction between procedural review which is inherent or implied in a Court or Tribunal and a review on merits where the error which is sought to be corrected is one of law and is apparent on the face of record. When a review is sought due to a procedural defect arising out of an inadvertent error committed by the Tribunal, such as when an authority or Tribunal has decided a proceeding without notice to the affected parties, the power of a procedural review inheres in the Tribunal or authority.

This principle has been reiterated by the Supreme Court in Kapra Mazdoor Ekta Union vs. Management of M/s. Birla Cotton Spinning and Weaving Mills Ltd. and others.

The judgments cited by learned counsel for C.B.I. are not applicable to the facts of the present case. In the case of State of Kerala Vs. M.M. Manikanthan Nair (supra) the accused persons had moved an application under Section 482 Cr.P.C. for quashing of criminal proceedings against them on the ground that there was no sanction to prosecute them as required under Section 122 of Kerala Panchayat Act. The petition was dismissed by learned Single Judge of High Court by holding that there was proper sanction to prosecute them. Subsequently a miscellaneous petition was filed for clarification of the above order and the same learned Judge held that there was no proper sanction. Under these circumstances, the Supreme Court held that the Single Judge was not authorised to reverse its own order as it is barred by Section 362 Cr.P.C.

Likewise in Hari Singh Mann's case (supra) too, the facts were entirely different. The case of Hari Singh Mann has been referred to by Hon'ble Supreme Court in Vishnu Agarwal's case cited by learned counsel for the appellants where in a distinction has been carved out between "review" and "recall"

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.

Accordingly, the recall application is allowed. The order dated 7.3.2013 is recalled. List this matter alongwith Crl. Revision No. 3385 of 2008 (old Crl. Revision (Defective) No. 457 of 2008) before the appropriate bench in the next cause list.

Dated : November 20, 2015.

S.B.