[2011] 3 S.C.R. 197

VISHNU AGARWAL v.

STATE OF U.P. AND ANR. (Criminal Appeal No. 1323 of 2004)

FEBRUARY 23, 2011

[MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.]

Administration of justice: Adjudication of case in the absence of counsel - In a revision petition, no one appeared

for the revisionist - Order passed - Application for recall of C the order alleging that the case was not in the main list of the High Court and, therefore, the counsel for the revisionist could not note the case and could not appear - High Court recalled the order - On appeal, held: No doubt, s.362 , Cr.P.C. mandates that no court when it has signed its judgment or D final order disposing of the case shall alter or review the same except to correct a clerical or arithmetic error- However, s.362 cannot be considered in a rigid and over technical manner to defeat the ends of justice - The court should not give its decision based only on the letter of the law, for, if the decision E is wholly unreasonable, injustice will follow - Moreover, the application filed by the revisionist was an application for recall of order and not for review - 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- Therefore, there was no error in law in the order of the High Court in recalling its order- Code of Criminal Procedure, 1973 - s.362.

Asif Kumar v. State of West Bengal and Ors. 2009 (1) SCR 469 - relied on.

A Harl Singh Mann v. Harbhajan Singh Bajwa AIR 2001

SC 43 - referred to.

Case Law Reference:

AIR 2001 SC 43

2009 (1) SCR 469

referred to

relied on

Para 6

Para 9

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1323 of 2004.

c From the Judgment and Order dated 29.01.2004 of the High Court of Judicature at Allahabad in Criminal Revision No. 136 of 1998.

WITH

D Criminal Appeal No. 875 of 2006.

Manoj Swarup, Lalita Kohli, Abhishek Swarup (Manoj Swarup & co.), Siddhartha Dave, Vibha Datta Makhija, Sandeep Singh and Manoj Swarup & Co. for the appearing E parties. ·

The following order of the Court was delivered

ORDER

F Criminal Appeal No. 1323/2004

1. Heard learned Counsel for the parties.

2. This appeal has been filed against the impugned Judgment of the Allahabad High Court dated 29.1.2004 in G Criminal Revision No. 136/1998.

3. It appears that the aforesaid Criminal Revision was listed in the High Court on 2.9.2003. No one appeared on behalf of the Revisionist, though the Counsels for respondents H appeared. In these circumstances, the judgment was passed.

4. Subsequently, an application was moved for recall of the A Order dated 2.9.2003 alleging that the case was shown in the computer list and not in the main list of the High Court, and hence, the learned Counsel for the Revisionist had not noted the case and hence he did not appear.

5. It often happens that sometimes a case is not noted by 8

the Counsel or his clerk in the cause list, and hence, the Counsel does not appear. This is a human mistake and can happen to anyone. Hence, the High Court recalled the order dated 2.9.2003 and directed the case to be listed for fresh hearing. The aforesaid order recalling the order dated 2.9.2003 C has been challenged before us in this appeal.

6. Learned Counsel for the appellant has relied on the decision of this Court in Hari Singh Mann Vs. Harbhajan Singh Bajwa AIR 2001 SC 43. Para 10 of the said judgment D states:

"Section 362 of the Code mandates that llo Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct E a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said 'court in the . absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer. for the ·. F • . . sa1ne reliefunless the former order of final dispo, sli~ et

aside by a Court of c6mpeterit'jurisdiction'il:ra manner . prescribed by law. The Court becomes.f!.Jnctus bfficio the . ·

moment the officialorderdisposingof a ca.se is .. signed ..

Such an order cannot be altered excptto the exten't of • correcting .a cierical or arithmetical , errot .. The rliance of G the respondent cin Talab Haji Hussain's case (AIR 1958

SC 376)(supra) is .misconceived. Even in that case it was pointed that inh.erent powers conferred on High Courts ·

under Section S61 A( Section 482 ofthe new Code) has to . be exercised sparingly; <:; arefulfy and with caution and only. H

k"'' • ·,. ·~ ...

where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7.1.1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41 st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment."

7. Learned Counsel for the appellant Mr. Manoj Swarup submitted that in view of the aforesaid decision, the High Court erred in law in recalling the Order dated 2.9.2003. We regret we cannot agree.

8. In our opinion, Section 362 cannot be considered in a rigid and over technical manner to defeat the ends of justice.

As Brahaspati has observed :

"Kevalam Shastram Ashritya Na Kartavyo Vinirnayah

E Yuktiheeney Vichare tu Dharmahaani Prajayate"

which means:

"The Court should not give its decision based only on the F letter of the law.

For if the decision is wholly unreasonable, injustice will follow."

9. Apart from the above, we are of the opinion that the G application filed by the respondent was an application for recall

of the Order dated 2.9.2003 and not for review. In Asit Kumar Vs. State of West Bengal and Ors. 2009(1) SCR 469, this Court made a distinction between recall and review which is as under:-

"There is a distinction between ...... a review petition A 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 B 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 Sing th & Ors. [2007(11) SCC 374) cancelling certain licences was passed without giving c opportunity of hearing to the. persons who had been granted licences."

10. Hence, we see no error in the impugned order passed by the High Court.

11. The appeal fails and is accordingly dismissed.

Crl. Appeal No. 875 of 2006

12. The Appeal is dismissed as having become infructuous. E

D.G.

Appeals dismissed.

' ,