Allahabad High Court
Smt. Santosh Kumari And 2 Ors vs State Of U.P. And Another on 9 November, 2021
Bench: Shekhar Kumar Yadav
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved
Court No. - 58
Case :- APPLICATION U/S 482 No. - 1058 of 2019
Applicant :- Smt. Santosh Kumari And 2 Ors
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- Pranesh Kumar Mishra
Counsel for Opposite Party :- G.A., Mayank Yadav, Umesh Bhardwaj, Vivek Kumar Singh
Hon'ble Shekhar Kumar Yadav, J.
Re:Criminal Misc. Delay Condonation Application No.14 of 2021
Heard learned counsel for the applicants.
This is an application seeking condonation of delay in filing the recall/restoration application. The delay in filing the recall application has been explained to the satisfaction of this Court. Accordingly, the delay condonation application is allowed.
The delay in filing the recall/restoration application is hereby condoned.
Re:Criminal Misc. Recall/Restoration Application No.13 of 2021
1. Heard Ms. Rakhee Gupta as well as Mr. Pranesh Kumar Mishra, learned counsel for the applicants, learned AGA for the State and Mr. Vivek Kumar Singh, learned counsel for the respondents.
2. The instant recall application has been filed seeking recall of this Court's order dated 02.06.2021.
3. Learned counsel for the applicants has submitted that the case was listed on 02.06.2021 before this Court as unlisted and link for virtual hearing of the matter was also sent to her on her registered mobile number for arguing the case through which she has been connected. After some arguments were heard through virtual hearing, the link was disconnected due to weak internet connection/network, hence, the arguments could not be completed. She has further submitted that despite her best efforts, the link could not be further connected. She has further submitted that at about 7.00 pm on the said day i.e. 02.06.2021 when she enquired about status of the case, she found that the case has been dismissed on merits. She has further submitted that on the next day i.e. on 03.06.2021, the counsel for the applicants sent an E-Mail to the Hon'ble Acting Chief Justice with a prayer to recall the order dated 02.06.2021. Counsel for the applicants also sent an E-Mail to Registrar General requesting him to produce the aforesaid application dated 03.06.2021 before Hon'ble the Acting Chief Justice for taking appropriate decision on the said recall application, but nothing has been done as yet. She has further submitted that on the said date, the counsel for the applicants could not complete the arguments due to disconnection of link. The said application has been dismissed by this Court without giving a proper opportunity of hearing, as such, the matter has not been heard on merits, hence, the same is liable to be recalled.
4. In support of her submissions, learned counsel for the applicants have relied upon the judgment of Hon'ble Supreme Court as well as this Hon'ble Court in the cases of New India Assurance Company Ltd. vs. Krishna Kumar Pandey passed in Criminal Appeal No.182 of 2019 arising out of Special Leave Petition (Crl.) No.8499, S. Ramesh and others vs. State Rep. by Inspector of Police and others, passed in Criminal Appeal No.583 of 2019 arising out of Special Leave Petition (Crl.) No.5167 of 2018 and Smt. Usha Pandey and another vs. State of U.P. and 2 others, decided on 23.03.2018.
5. Learned counsel for opposite parties has vehemently opposed the prayer made by learned counsel for the applicants by submitting that there is a bar under Section 362 Cr.P.C. for entertaining any such application seeking recall of an order passed earlier by this Court.
6. I have considered the submissions advanced by learned counsel for the parties.
7. The question, which emerges for consideration is, as to whether in view of bar of Section 362 Cr.P.C., the judgment or order rendered/passed by this Court can be recalled?
8. In case of Central Bureau of Investigation vs. State of U.P. and others 2015(11) ADJ 739, this Court relying upon decisions, recalled the order and restored the revision. Relevant part of the order are extracted as under :
"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."
9. In case of Asit Kumar Kar vs. State of West Bengal and others (2009) 2 SCC 703, the Court held as under:
"6. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where 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.
7. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Excise Licensees' Association vs. Raghabendra Singh and others (2007) 11 SCC 374 cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences."
10. This Court, while entertaining the Application U/S 482 Cr.P.C., after arguments were heard at some length, had dismissed the application vide order dated 02.06.2021. It is true that after advancing some arguments through virtual hearing, the counsel for the applicants were disconnected due to weak internet connection.
11. Having heard the counsel for both sides, I have gone through the record and the judgements referred to and relied on by the counsel for the applicants. In my opinion, if a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate.
12. Considering the facts and circumstances of the case and in view of the judgments cited above, the order dated 02.06.2021 passed by this Court is hereby recalled. Interim order, if any, is also revived. Accordingly, the recall application is allowed. The application U/s 482 Cr.P.C. No.1058 of 2019 is restored to its original number and status.
13. Let this matter be listed before appropriate Bench in the next cause list. The matter shall not be treated as tied-up or part-heard to this Bench.
Order Date :-09.11.2021
Ajeet
