Bombay High Court
Sau. Vishakha @ Prapti W/O Prashil ... vs The State Of Maharashtra, Through ... on 23 September, 2021
Bench: V.M. Deshpande, Amit B. Borkar
appp1460.21 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (APPP) NO. 1460/2021
IN
CRIMINAL APPLICATION (APL) NO. 908/2015
Vishakha P. Nagpure
...VERSUS...
State & ors.
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders or directions
and Registrar's orders
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Shri G.N. Khanzode, Advocate for the applicant(s)
Shri N.R. Patil, APP for the non-applicant/State
Shri A.S. Deshpande, Advocate for the non-applicant nos. 2 to 5
CORAM : V.M. DESHPANDE & AMIT B. BORKAR, JJ.
SEPTEMBER 23, 2021
By this application, the applicant is seeking
recall of the order dated 03/03/2021 allowing Criminal
Application (APL) No. 908/2015 whereby F.I.R.
No. 306/2013 has been quashed and set aside without
giving opportunity of hearing to the applicant.
The facts giving rise to the present application
are as under :-
The non-applicant nos. 2 to 5 were the
applicants in Criminal Application (APL) No. 908/2015
who had challenged registration of F.I.R. No. 306/2013.
This Court on 27/06/2016 issued Rule and by way of
ANSARI
interim order, it was directed that no coercive steps shall be
taken against the non-applicant nos. 2 to 5 herein. When
the said application was heard by this Court for final
hearing, neither the advocate for the applicants nor the
advocate for the non-applicant no. 2 therein were present.
This Court allowed Criminal Application (APL)
No. 908/2015 by quashing and setting aside F.I.R.
No. 306/2013.
The applicant has therefore filed the present
application stating that the advocate for the present
applicant failed to appear before this Court at the time of
final hearing and therefore the material facts and
subsequent developments were not brought to the notice
of this Court viz. during the pendency of the said
application, charge-sheet came to be filed; and the
application for discharge filed by the non-applicant nos. 2
to 5 herein came to be dismissed by the Sessions Court.
Therefore, it is prayed that the order dated 03/03/2021
needs to be recalled.
This Court on 01/09/2021 issued notices to
the non-applicants. We have heard learned advocate for
the applicant, learned APP for the non-applicant
no. 1/State and learned advocate for the non-applicant
nos. 2 to 5. Undisputedly, the order dated 03/03/2021 has
been passed without giving opportunity of hearing to the
ANSARI
applicant and the non-applicant nos. 2 to 5. The absence
of hearing assumes importance in view of the fact stated in
the application that during the pendency of the
application, the application for discharge filed by the non-
applicant nos. 2 to 5 came to be rejected which was not
brought to the notice of this Court.
The crucial question as regards the power of
this Court is to recall the order on merits in view of the bar
contained under Section 362 of the Code of Criminal
Procedure which is no longer res-integra in view of the
judgment of the Hon'ble Supreme Court in the case of
Vishnu Agarwal vs. State of Uttar Pradesh reported in
(2011) 14 SCC 813 wherein the Hon'ble Supreme Court
has held that it is permissible to recall the judgment passed
without giving opportunity of hearing to the applicant. It
has been observed that Section 362 of the Code of
Criminal Procedure cannot be considered in a rigid and
over technical manner to defeat the ends of justice and the
application of the respondent therein was an application
for recall of the order and not for review. In a recall
application, the Court does not go into the merits but
simply recalls the order which was passed without giving
opportunity of hearing to the parties.
We are therefore satisfied that the order
passed by this Court on 03/03/2021 in Criminal
ANSARI
Application (APL) No. 908/2015 being passed without
giving opportunity of hearing to the parties, the same
needs to be recalled.
Hence, the following order:-
(a) The order dated 03/03/2021 allowing
Criminal Application (APL) No. 908/2015 is
recalled.
(b) Criminal Application (APL) No. 908/2015 is
restored to the file of this Court and shall be
heard on its own merit on 08/10/2021.
Criminal Application (APPP) No. 1460/2021
is allowed accordingly.
(JUDGE) (JUDGE)
ANSARI
