Andhra Pradesh High Court - Amravati
Kocherla Varalakshamma vs State Of A.P., Rep By Its Public ... on 31 January, 2022
HIGH COURT OF ANDHRA PRADESH
MAIN CASE No: Crl.R.C.No.1835 OF 2004
PROCEEDING SHEET
Sl. OFFICE
DATE ORDER
No NOTE.
RNT,J
3. 31.01.2022 (through virtual mode)
I.A.(SR).No.63481 of 2021
1.
Heard Sri Siva Sankara Rao Borra, learned
counsel for the petitioners/applicants.
2. Crl.R.C.No.1835 of 2004, Kocherla
Varalakshamma, Kocherla Paramasivaiah vs. State of
Andhra Pradesh was dismissed by this Court by
judgment and order, dated 28.01.2011 on merits.
3. The petitioner/applicant has filed
I.A.(SR).No.63481 of 2021 to recall the order, dated
28.01.2011.
4. The Registry has raised the following objection:
"How the above IA(SR) is entertainable as recall
petition in Criminal Cases."
5. To the aforesaid office report, learned counsel
for petitioners re-submitted a note/objection that in
view of the law laid down by the Hon‟ble Supreme
Court of India in AIR 1999 SC 2089, Budhia Swain
and others vs. Gopinath Deb and others, the IA
is maintainable".
6. In view of the aforesaid objection, the matter
has been raised before this Court „for orders‟.
7. The learned counsel for the
petitioners/applicants, submits that in Budhia Swain
(supra), it has been held in paragraph No.6 as under:
"6. What is a power to recall? Inherent power to
recall its own order vesting in tribunals or courts was noticed
in Indian Bank v. Satyam Fibres (India) (P) Ltd. [(1996) 5
SCC 550] Vide para 23, this Court has held that the courts
have inherent power to recall and set aside an order
(i) obtained by fraud practised upon the court,
(ii) when the court is misled by a party, or
(iii) when the court itself commits a mistake which
prejudices a party.
In A.R. Antulay v. R.S. Nayak [(1988) 2 SCC 602 : 1988 SCC
(Cri) 372 : AIR 1988 SC 1531, para 130] (vide para 130),
this Court has noticed motions to set aside judgments being
permitted where
(i) a judgment was rendered in ignorance of the fact that
a necessary party had not been served at all and was
shown as served or in ignorance of the fact that a
necessary party had died and the estate was not
represented,
(ii) a judgment was obtained by fraud,
(iii) a party has had no notice and a decree was made
against him and such party approaches the court for
setting aside the decision ex debito justitiae on proof
of the fact that there was no service."
8. A perusal of the judgment in Budhia Swain
(supra) shows that, section 38-A of the Orissa Estates
Abolition Act involved therein provided for review which
could be sought for within one year from the date of
decision or order, but only on the ground that there has
been a clerical or arithmetical mistake in the course of
any proceeding.
9. The present is a case, where, the criminal
revision was dismissed by this Court, on merits, vide
judgment dated 28.01.2011.
10. Section 362 of the Code of Criminal Procedure
(Cr.P.C) provides as under:
"Court not to after 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."
11. It is evident from section 362 Cr.P.C that save as
otherwise provided by the code of criminal procedure or
by any other law for the time being in force, no Court,
where 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.
12. In Smt. Sooraj Devi vs. Pyare Lal And
Another1, the High Court had refused to entertain the
application for review of the order passed on merit. The
1981 1 SCC 500
Hon‟ble Supreme Court, held that the appellant was not
seeking the correction of a clerical or arithmetical error
but desired the declaration on merits. The prohibition in
Section 362 Cr.P.C. against the Court altering or
reviewing its judgment is subject to what is otherwise
provided by the Code of Criminal Procedure or by any
other law for the time being in force. The Hon‟ble Apex
Court held that those words refer to those provisions
only where the Court has been expressly authorized by
the Code or other law to alter or review its judgment
and the inherent power of the Court was not
contemplated by the saving provision contained in
Section 362. It was held that the High Court was right
in declining to entertain the application.
13. In Mohammed Zakir vs. Shabana and
others2, the High Court had passed an order under
Section 362 Cr.P.C. recalling its earlier order passed on
merit. The Honorable Supreme Court held that the High
Court should not have exercised the power under
Section 362 Cr.P.C. for correction on merits. It was
further held that, however patently erroneous earlier
order be, it can only be corrected by process known to
law and not under Section 362 Cr.P.C. The whole
purpose of Section 362 Cr.P.C. is only to correct a
clerical or arithmetical error, but what the High Court did
was not to correct a clerical or arithmetical error; but to
rehear the matter on merits, which is impermissible
under law.
14. Learned counsel for the petitioners/applicants
has not been able to show any provision neither under
the code of criminal procedure nor any other law for the
time being in force, permitting any application for recall
or review of the judgment dismissing the criminal
revision under section 401/397 Cr.P.C on merits.
15. Learned counsel for the petitioner has also not
been able to show any clerical or arithmetical error in
the judgment, dated 28.01.2011. He submits that the
2018 15 SCC 316
challenge here is on the merits of the judgment, which
according to him being legally erroneous can be
reviewed/recalled in view of the judgment of the Hon‟ble
Apex Court, in the case of Ram Laxman vs. State of
Rajasthan,3 referring to paragraph 7 to 9 thereof, but
that judgment is not of any help to the petitioners‟
counsel in as much as that was a matter before the
Hon‟ble Supreme Court and finding that the order of the
high court suffered from error of law, the same was set
aside.
16. The review or recall of the order, dated
28.01.2011 dismissing the revision on merit, is therefore
not permissible.
17. For all the aforesaid reasons, I.A.(SR).No.63481
of 2021 is rejected as not maintainable.
________
RNT,J
Scs
2016 12 SCC 389
