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High Court Of Calcutta
DEBIPRASAD SENGUPTA, AMIT TALUKDAR, P. N. SINHA
HARJEET SINGH - Appellant
Versus
STATE OF WEST BENGAL - Respondent
Criminal Revision 469 Of 1996
Decided On : 04/06/2005
SECTION 362 OF THE CODE OF CRIMINAL PROCEDURE - RECALL OF ORDER - VIOLATION OF NATURAL JUSTICE - REVIEW OR ALTERATION OF FINAL ORDER - INHERENT POWERS OF THE COURT: The provision of Section 362 of the Code of Criminal Procedure (Cr.P.C.) acts as a bar in recalling an order passed by the Court even when it is found to offend the principles of natural justice. Once a Court signs its judgment or final order disposing of a case, it becomes functus officio and cannot alter or review the same except to correct a clerical or arithmetical error.
Fact of the Case:
A Revisional Application was filed before the Calcutta High Court against an order passed by a Sub-divisional Judicial Magistrate rejecting the prayer for the return of a vehicle. The Revisional Application was disposed of ex parte by a Single Judge, directing the return of the vehicle to the Petitioner. The Opposite Party, who was not heard, filed an application for recalling the ex parte order. The Single Judge referred the matter to a larger Bench to decide whether Section 362 of the Cr.P.C. would act as a bar in recalling an order passed by the Court when it is found that it will offend the principles of natural justice.
Finding of the Court:
The Full Bench of the Calcutta High Court held that Section 362 of the Cr.P.C. operates as a stumbling block for the Court to proceed in the direction of recalling or reviewing an order passed by it after it has finally disposed of the matter. The Court cannot review or recall its final Order, even in cases where the parties may come up before it feeling that they have not been heard or they have left out something, which if placed before the Court, may have resulted in a different decision and that the decision arrived in their absence was an impaired finding.
Issues: 1. Whether Section 362 of the Cr.P.C. acts as a bar in recalling an order passed by the Court when it is found that it will offend the principles of natural justice? 2. Whether the Court can review or alter a final order passed by it, even if it is found subsequently that it offends the principles of natural justice?
Ratio Decidendi: 1. The language of Section 362 of the Cr.P.C. clearly states that no Court, including the High Court, can review or recall an order or judgment passed, even if it is found subsequently that it offends the principles of natural justice. 2. The Court becomes functus officio once it signs its judgment or final order disposing of a case, and it cannot alter or review the same except to correct a clerical or arithmetical error. 3. The inherent powers of the Court under Section 482 of the Cr.P.C. cannot be used to override the bar imposed by Section 362.
Final Decision: The Full Bench of the Calcutta High Court answered the Reference accordingly and held that Section 362 of the Cr.P.C. is a bar for any Court to either review or recall an order or judgment passed even if it is found subsequently that it offends the principles of natural justice.
( 1 ) FACED with two different versions one of a Division Bench; another of a Single Bench on the impact of Section 362 of the Code of criminal Procedure (hereinafter referred to as the said Code) Batabyal, J. felt that the matter should be referred to appropriate authority for constitution of a larger Bench" to decide the question.
( 2 ) PURSUANT thereof this Full Bench has been set up by The Hon'ble the Chief Justice.
( 3 ) WE have been asked to decide as to whether the provisions of section 362 of the said Code would act as a bar in recalling an order passed by the Court when and as to whether it is found that it will offend the principles of natural justice.
( 4 ) FACTUAL matrix leading to the Reference is required to be set out for the purpose of better appreciation of the entire gamut of the matter.
( 5 ) A Revisional Application was moved before this court on behalf of one Harjeet Singh, son of Sardar Har Bhajan Singh making the State as opposite Party No. 1 and one P. G. Enterprise as Opposite Party No. 2. In the said Revisional Application, preferred under Section 401 read with Section 482 of the said Code, an impugned order of 1. 2. 1996 passed by the learned sub-Divisional Judicial Magistrate, Uluberai in G. R. Case No. 483 of 1995 arising out of Uluberia Police Station Case No. 176 dated 8. 8. 1995 under sections 379 and 411 of the Indian Penal Code was questioned whereby the prayer of the said Harjeet Singh for return of a vehicle along with another prayer of the Opposite Party No. 2, P. G. Enterprise for return of the said vehicle was rejected.
( 6 ) IT appears that on the very first day when the said Revisional application seems to have been moved as an Unlisted Motion (as it was the practice prevailing at that point of time) the said Revisional Application which was registered as Criminal Revision No. 469 of 1996 was "disposed of" by batabyal, J. directing the seized vehicle, which was the subject-matter for the prayer in connection with return before the learned Sub-divisional Judicial magistrate, Uluberia, to be returned in favour of the Petitioner, Harjeet Singh on his furnishing some bonds.
( 7 ) AS the said Revisionat Application was disposed of at the Motion stage, obviously the question of appearance of the Opposite Party does not arise.
( 8 ) IT is here where the entire issue emanates from. The Opposite party No. 2 in the said Revisional Application (P. G. Enterprise) filed an application for recalling the ex parte order dated 27. 2. 1996 passed by Batabyal, j. on 22. 4. 1996.
( 9 ) ACTING on the basis of the said prayer for recalling Batabyal, J. by his Order dated 16. 6. 1997 after hearing the learned Counsel for the Petitioner harjeet Singh and the learned Counsel for the Opposite Party No. 2, P. G. Enterprise after considering the various decisions on this issue found :"apparently there is a conflict of decisions between the views taken by a Division Bench of this Court and the view taken by a Single Judge cf this Court on one hand and the view taken by another learned single Judge of this Court. In such a situation it is fit and proper that the matter should be referred to the appropriate authority for constitution of a larger Bench to decide the question once for all. "
( 10 ) THIS is how we come to the picture.
( 11 ) BEFORE proceeding to answer the question it would be profitable to see what is Section 362 of the said Code :"362. Save as otherwise provided by this 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 arithmetic error. "
( 12 ) A comparative analysis of the contemporaneous provision of section 362 of the said Code, in the Old Code of 1898 which is Section 369 shows as follows : "369. Save as otherwise provided by this Court or by any other law for the time being in force or, in the case of a High Court established by R
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