A final order passed by the court can be recalled under Section 482 of the CrPC if it was passed due to a mistake or without giving the parties an opportunity to be heard.

B.N.Sinha, J.

1. This application on behalf of opposite parties have been filed for recalling the order dated 20-5-87 passed by a Bench of this Court in Criminal Revision No. 735 of 1983 by which the revision application has been allowed. It may be mentioned that opposite party No.1 is the wife of the opposite party No.2, who appears in person in this case.

2. The petitioners before this Court filed Criminal Revision No. 735 of 1983 for quashing the order dated 16-8-1983 passed by Shri Bankey Bihari Prasad, Executive Magistrate, Sadar Gaya in Miscellaneous Case No. 837/75, a proceeding under Sec. 145 of the Criminal Procedure Code (hereinafter to be referred as the Code) by which the learned Magistrate on the application file by the opposite parties restored the proceeding under Sec. 145 of the Code which bad been dropped by him on 22-1-1983 on the ground of non-existence of breach of peace. This Criminal Revisions was admitted on 21-9-1983 and thereafter it appears that it was listed for hearing on several dates and ultimately it was disposed of by a Single Judge Bench of this Court by order dated 20-5-1987 which runs as follows:

"Heard learned Counsel for the petitioners and the Opposite parties. Learned Counsel for the Opposite parties concedes to the application and he has nothing to say. The impugned order is set aside and the application is allowed."

Thereafter the present petition has been filed on behalf of opposite party for recalling the above order on the ground that in Criminal Revision, the opposite party had not engaged any Advocate as their counsel in this case and opposite parties filed counter affidavit in the criminal revision and opposite party No.2 used to appear in person, which is also evident from the cause list of 7th January, 1987, 9th January, 1987 and 12th January, 1987. But in the cause list of 20-5-1987 it was not shown that the opposite parties was appearing in person; and that the cause list of that day though mentions the name of opposite party No.2 but it omitted to mention that he was appearing in person; but it appears from the order dated 20-5-1987 that a counsel appeared on behalf of the opposite parties and conceded to the application and said that he has nothing to say; and this was due to "dextrous and deceitful tricks" played by the petitioners and thus they succeeded in getting order in their favour.

3. On these grounds it has been submitted by the opposite parties, who appeared in person, that the said order dated 20-5-87 was passed by mistake, due to mistake in the cause list and "dextrous and deceitful tricks" of the petitioners without giving an opportunity to the opposite parties of being heard and, therefore, it is fit to be recalled and proper order be passed after hearing both the parties. This petitions by the opposite parties for recalling the impugned order and for passing order after hearing both the parties was listed for hearing before the same Bench which has passed the impugned order but the said Bench ordered that it may be placed before any other Bench. Thus, this has come before me for hearing and disposal.

4. Sri Lalit Kishbore, Advocate, who appeared on behalf of the petitioners, vehemently opposed the prayer of the opposite parties and has submitted that once a final order is passed by the Court it cannot be reviewed. He has placed reliance on Sec. 362 of the Code which reads as follows:

"362 Court not to alter judgment - Save as otherwise provided by the Code or by any other law for the time being in force no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same, except to correct a clerical or arithmetical error."

In support of his arguments he has placed reliance on Sankatha Singh and another V/s. The State of Uttar Pradesh and State of Orissa V/s. Ram Chander Agrawal etc.

5 In these two cases referring to sec. 369 of the Code of Criminal Procedure, 1898 (hereinafter called as the old Code) it has been