IMPORTANT POINT
Until a judgment is signed it can be recalled.

ORDER

1. This petition has been filed against the interim order dated 27.12.2013, passed by the High Court of Gujarat at Ahmedabad in Criminal Appeal No.2012 of 2006.

2. Facts and circumstances giving rise to this petition are :

A. That an FIR C.R. No.60 of 2001 was registered at Amraiwadi Police Station, Ahmedabad against one Mahalingam alias Shiva for the offence punishable under the provisions of Narcotic Drugs and Psychotropic Substances Act, 1985 (for short 'NDPS Act'). Pursuant to the said FIR, case commenced which was committed to the Sessions Court, Bhadra, Ahmedabad and the trial commenced.

B. On 4.8.2003, Shiva, accused who was detained at Vadodara Central Jail, was required to be taken to the Sessions Court at Bhadra, Ahmedabad and for that purpose an escort was arranged, however, the case was adjourned and the accused while going back was taken for a cup of tea to the Tea stall outside the court compound. Subsequent thereto, he expressed the desire to see his ailing mother and the escort persons tried to find the auto-rickshaw but the escort persons started nauseating and vomiting as some substance was allegedly had been mixed up with tea by the relatives of the accused and it was at that time Shiva, accused absconded from the custody of these persons although in handcuffs. Thus, a complaint was lodged in this respect by the seniormost person of the said escort party. In this regard, Ist C.R. No.442 of 2003 was recorded for the offence punishable under Sections 328, 222, 223, 224 and 114 of the Indian Penal Code 1860 (hereinafter referred to as 'IPC').

C. After the investigation, chargesheet was filed against the escort personnel including the petitioners on 5.9.2005 and the petitioners were found guilty for the offence punishable under Section 222 IPC vide judgment and order dated 9.11.2006 and the petitioner no.1 was awarded 3 years' RI and a fine of Rs.5,000/- and in default thereto, to undergo simple imprisonment for one year. Petitioner nos.2 and 3 were convicted under Section 222 IPC but they had been awarded the sentence for a period of two years each and a fine of Rs.2,000/-each, and in default thereto, to undergo simple imprisonment for six months.

D. Aggrieved, the petitioners preferred Criminal Appeal No.2012 of 2006 before the High Court of Gujarat and during the pendency of the appeal, the petitioners had been enlarged on bail vide order dated 22.11.2006. The appeal was finally heard on 11.12.2013 and the court took a view that sanction of the State Government under Section 197 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") was necessarily required, and in view thereof, the order was dictated in open court allowing the appeal on technical issue. However, the order dictated in open court and acquitting the petitioners vide order dated 11.12.2013 was recalled by the court suo moto vide order dated 27.12.2013 and directed the appeal to be re- heard. The order had been recalled on the ground that the court wanted to examine the issue further as to whether in the facts and circumstances of the case where the accused had been police constables, the offence could not be attributed to have been committed under the commission of their duty where sanction under Section 197 Cr.P.C. would be attracted. Hence, this petition.

3. Heard Shri Fakhruddin, learned senior counsel for the petitioners and Shri Anurag Ahluwalia, learned counsel for the State and perused the record.

4. We do not find any forcible submission advanced on behalf of the petitioners that once the order had been dictated in open court, the order to review or recall is not permissible in view of the provisions of Section 362 Cr.P.C. for the simple reason that Section 362 Cr.P.C. puts an embargo to call, recall or review any judgment or order passed in criminal case once it has been pronounced and signed. In the instant case, admittedly, the order was dictated in the court, but had not been signed.

5. In Mohan Singh v. King-Emp