Once a petition is decided on merits, the court becomes functus officio and has no power to recall such an order, as it amounts to a review of the earlier judgment.

ORDER :

Leave granted.

2. Facts in brief are that on 19th March, 2014, the appellant herein had lodged an FIR against the respondents in Case Crime No. 90 of 2014 under Sections 420, 467, 468 and 471 of the Indian Penal Code, 1860 (in short 'the IPC') at police station Kotwali, Fatehgarh, District Farrukhabad, U.P. The FIR was registered and the Investigating Officer after investigating into the matter submitted his final report dated 21.04.2014, which is a closure report, in the aforesaid matter on the ground that no case was made out. The appellant filed his objections to protest the Petition. After hearing the parties, the learned Chief Judicial Magistrate, Farrukhabad, rejected the final report and decided to take cognizance of the offence by his Order dated 06th August, 2014.

3. Aggrieved by the said order, respondents herein, filed the petition under Section 482 of the Code of Criminal Procedure, 1973 before the High Court seeking quashing of the summoning order passed by the trial court. This petition came up for hearing on 22nd September, 2015. Nobody appeared on behalf of the respondents (Petitioners in the said petition). The High Court, however, still proceeded and after hearing the other side, it passed order on merits, dismissing the Petition filed by the respondent under Section 482 of the Cr.P.C. which reads as under:-

"....The impugned order is judicial one passed in during judicial proceedings of the case and it should be implemented for securing the ends of justice. Grounds for exercising inherent power in such a matter are not made out. Therefore the application is dismissed."

4. It is clear from the above that the petition filed by the respondent in the High Court was decided on merits albeit in the absence of the respondent. After coming to know of the aforesaid order, respondent filed application for restoration which has been allowed by the impugned order dated 7.12.2015 and the Petition under Section 482 of the Cr.P.C. is restored. This order of restoration of the original petition under Section 482 of the Cr.P.C. is challenged by the appellant on the ground that after the dismissal of the said petition on merits, it was not open to the High Court to entertain any application for restoration inasmuch as it amounts to review of the order. In support of this submission, learned counsel for the appellant has referred to the judgment of this court in Nazma v. Javed alias Anjum, (2013)1 SCC 376.

5. Counsel for the respondents, on the other hand, submits that since the petition filed under Section 482 of the Cr.P.C. was decided in the absence of the respondent, who was the petitioner in the said petition, he had a right to seek recall of such an order by showing sufficient cause. Once the court was satisfied that there was sufficient cause for non appearance on that particular day, it got requisite jurisdiction to recall the said order. Learned counsel has referred to the judgment of this court in Vishnu Agarwal v. State of Uttar Pradesh and Anr., (2011) 14 SCC 813.

6. We have considered the aforesaid submission of the counsel for the parties. It is not in dispute that the High Court does not have power to review its orders. Section 362 of the Cr.P.C. explicitely makes such a provision. The question that arose is as to whether the recall of the order dated 22.09.2015 by the Impugned Order amounts to review of the earlier order.

7. As noted above, the High Court had not dismissed the said petition in default because of non appearance of the respondent. Had that been so, the High Court would have been justified in recalling such an order as held by this Court in Vishnu Agarwal's case (supra) which has also a case where for non appearance the High Court had dismissed the petition simplicitor i.e. in default.

8. However, as noted above, in the present case the Petition was decided on merits. Once the Petition is decided on merits, the High Court thereafter becomes functus officio and has no power or jurisdiction to recall