[Cites 13, Cited by 0]
Madhya Pradesh High Court
Smt Meena Tiwari vs Vandana Tiwari on 21 January, 2026
Author: Milind Ramesh Phadke
Bench: Milind Ramesh Phadke
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE MILIND RAMESH PHADKE
ON THE 21st OF JANUARY, 2026
MISC. CRIMINAL CASE No. 46119 of 2024
SMT MEENA TIWARI
Versus
VANDANA TIWARI AND OTHERS
Appearance:
Shri Anil Kumar Mishra - Advocate for petitioner.
Shri Brijesh Kumar Tyagi - Public Prosecutor for respondent
No.2/State.
Shri Dharmendra Rishishwar - Advocate for respondent [R-1].
ORDER
This petition has been filed under Section 482 of the Code of Criminal
Procedure, 1973 / Section 528 of the Bharatiya Nagarik Suraksha Sanhita
seeking recall of the order dated 28.08.2024 passed in Criminal Revision No.
3558 of 2024 by a Coordinate Bench of this Court, whereby the criminal
revision preferred by respondent No.1 was allowed and the order dated
11.07.2024 passed in Sessions Trial No.139 of 2022 by the First Additional
Sessions Judge, Bhind was set aside, without affording an opportunity of
hearing to the petitioner, who is the complainant/victim in the said trial.
2. Learned counsel for the petitioner submits that the sole ground for
seeking recall of the order dated 28.08.2024 is violation of the principles of
natural justice, inasmuch as the petitioner, despite being the victim and
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complainant, was not heard before passing of the impugned order. It is
submitted that the inherent jurisdiction of this Court under Section 482
Cr.P.C. is wide enough to recall an order which has been passed without
notice or hearing to an aggrieved party. Reliance has been placed upon the
judgment of this Court in Parmeshwardin Patel v. Snehlata reported in 2004
(2) JLJ 91 and Division Bench decision in Uday Bhan v. State of M.P.
(M.Cr.C. No.184/2013 decided on 06.12.2013).
3. Per contra, learned counsel for the State has raised a preliminary
objection regarding maintainability, contending that recall of the order is
barred by Section 362 Cr.P.C. (now Section 430 BNSS), which prohibits
alteration or review of a judgment once signed.
4. Learned counsel for respondent No.1 submits that application under
Section 348 of BNSS was filed by the prosecution, therefore, prosecution
was made party and argued on behalf of the complainant and after
considering arguments advanced by counsel for the parties, the impugned
order has been passed. It is further argued that in view of the law laid down
by the Supreme Court in Hari Singh Mann v. Harbhajan Singh Bajwa
reported in 2001 SCC (Cri) 113, the High Court has no power to review or
recall its final order under the garb of Section 482 Cr.P.C., and hence the
present petition deserves dismissal.
5. Heard learned counsel for the parties and perused the record.
6. The core issue which arises for consideration is whether an order
passed in criminal proceedings, affecting the rights of the victim, without
affording him an opportunity of hearing, can be recalled by the High Court
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in exercise of its inherent jurisdiction, notwithstanding the bar under Section
362 Cr.P.C.
7. Before adverting to the rival submissions, it is apposite to notice the
statutory evolution of the concept of "victim" under the Code of Criminal
Procedure. Prior to 31.12.2009, the Code did not recognize the victim as a
distinct stakeholder in criminal proceedings. By the Code of Criminal
Procedure (Amendment) Act, 2008, which came into force on 31.12.2009,
the legislature consciously introduced Section 2(wa), defining "victim", and
simultaneously incorporated several provisions conferring substantive and
procedural rights upon victims. These amendments were based upon the
recommendations of the Law Commission, which felt need to correct the
imbalance in the criminal justice system, where victims were relegated to the
background despite being the ultimate sufferers of crime.
8. The amended provisions, including the proviso to Section 24(8)
enables the victim to engage an Advocate, Section 357A provids for victim
compensation, and the proviso to Section 372 confers a right of appeal upon
the victim, and the aforesaid provisions unequivocally demonstrate that the
victim is no longer a silent spectator but a recognized aggrieved party in
investigation, inquiry, trial, appeal and revision. The legislative intent is clear
that the victim's participation is integral to fair adjudication.
9. In light of the above statutory framework, there remains no manner
of doubt that a victim is an aggrieved person not only in the commission of
the offence but also in all subsequent criminal proceedings, including those
invoking revisional or inherent jurisdiction of this Court. The victim's right
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to be heard is not merely procedural but is rooted in the principles of fairness
and natural justice.
10. The Supreme Court, even prior to the 2008 amendments,
emphasized the necessity of hearing the complainant or informant before
passing orders favourable to the accused. In Kurukshetra University v. State
of Haryana (1977) 4 SCC 451, the Apex Court set aside the High Court's
order quashing an FIR on the ground that the informant had not been heard.
Similarly, in J.K. International v. State (2001) 3 SCC 462 , it was held that the
complainant at whose instance prosecution was launched is entitled to be
heard before quashing of criminal proceedings, subject to seeking such
opportunity. These judgments were rendered at a time when the Code did not
statutorily recognize the victim; therefore, in the post-amendment regime,
the requirement of hearing the victim stands fortified rather than diluted.
11. In the present case, a perusal of the order dated 28.08.2024 clearly
reveals that the petitioner-victim was neither impleaded nor heard before
allowing the criminal revision and setting aside the order passed by the trial
Court. The contention that hearing the prosecution suffices cannot be
accepted in view of the distinct and independent status now conferred upon
the victim under the Code. The interests of the State and the victim, though
overlapping at times, are not identical, and the victim cannot be presumed to
be adequately represented merely because the Public Prosecutor was heard.
12. The argument founded upon Section 362 Cr.P.C. and the decision
in Hari Singh Mann (supra) also does not come to the aid of respondent
No.1. In Hari Singh Mann (supra) the Supreme Court was dealing with a
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case where the High Court went to review or alter its judgment when passed
on merits after it had attained finality. The said decision unequivocally bars
substantive review or reappreciation of the case under the cloak of Section
482 Cr.P.C. However, the said judgment does not prohibit recall of an order
which is vitiated due to violation of the principles of natural justice or which
has been passed without jurisdiction or without hearing a necessary party.
13. The distinction between "review" and "recall" is now well settled.
Recall of an order passed without notice or hearing to an aggrieved party
does not amount to review on merits. It merely restores the proceedings to
the stage where the defect occurred, so that the affected party may be heard.
This limited corrective jurisdiction has consistently been upheld by this
Court, including in Parmeshwardin Patel v. Snehlata (supra) and by the
Division Bench in Uday Bhan v. State of M.P., (supra) wherein it has been
held that Section 362 Cr.P.C. does not bar recall of an order obtained in
violation of natural justice.
14. In the present case, the order dated 28.08.2024, having been passed
without affording an opportunity of hearing to the victim, stands vitiated.
The prejudice caused to the victim is self-evident, as the order affects the
forum and course of trial, which the victim has a legitimate right to oppose
on cogent grounds. Denial of such opportunity strikes at the very root of
fairness in criminal adjudication.
15. Accordingly, this Court has no hesitation in holding that the
impugned order dated 28.08.2024 is liable to be recalled. The petition is,
therefore, allowed. The order dated 28.08.2024 passed in Criminal Revision
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No.3558 of 2024 is recalled. The Criminal Revision No. 3558 of 2024 is
restored to its original number.
16. The petition is accordingly, disposed of.
(MILIND RAMESH PHADKE)
JUDGE
ojha
