The High Court has the inherent power under Section 482 of the CrPC to recall its own order, but such power can only be exercised in cases where there is a mistake of fact or a failure of justice.

Syamal Kanti Chakrabarti, J.:

In the instant revisional application the legality and propriety of the order dated 16.02.2009 passed by the learned Chief Judicial Magistrate, Barasat in connection with Rajarhat Police Station Case No. 7 dated 07.01.2004 under Section 306 of the Indian Penal Code was assailed. On 11.11.2010 this Court passed the following order:

“ Learned lawyer for the State is present. But learned lawyer for the petitioner is found absent on repeated calls and on 14.09.10 also he was found absent on call. Therefore, let the matter go out of list with liberty to mention after one month.

Sd./-(Syamal Kanti Chakrabarti, J.)”

2. Subsequently at the instance of the opposite party the matter appeared in the list of 06.12.2010 for hearing. On that date the learned Advocate for the petitioner was found absent on repeated call but the learned Advocate for the opposite parties and the State were present. Both of them were heard and the revisional application was disposed of by this Court on merit and this Court held that there is no illegality or impropriety in the order of the learned Court below who has rejected the prayer for reinvestigation of the case which is not a mistake of fact.

3. Learned lawyer for the petitioner has subsequently prayed for recalling of the said order which was pased in his absence. Upon his prayer in the cause list of 22.12.2010 the matter appeared under the heading ‘to be mentioned’ under serial no. 2. So the matter was again heard on 22.12.2010. It is submitted by the learned lawyer for the petitioner that the matter went out of list on 11.11.2010 with liberty to mention after one month. But this Court considered the matter on merit on 06.12.2006, i.e., before expiry of one month and the petitioner was not given any opportunity of being heard which will lead to miscarriage of justice. Therefore, the said order should be recalled. Learned lawyer for the opposite parties as well as the State have opposed the move and contended that once the Court has disposed of the revisional application on merit the same cannot be recalled but the aggrieved party may file review application if he so decides. They have referred to and relied upon the principles laid down in 2001 SCC (Cri) 808 (State of Kerala –Vs.- M. M. Manikantan Nair), 2001 SCC (Cri) 112 (Hari Singh Mann –Vs.- Harbhajan Singh Bajwa & Ors.) etc. in support of their contention. In those cases it has been set at rest that the High Court has no jurisdiction to alter or review its own judgement or order except to the extent of correcting any clerical or arithmetic error. Practice of filing Criminal Miscellaneous petition after disposal of main case and issuance of fresh direction in such petition is unwarranted and amounts to abuse of process of Court. Once the matter is finally disposed of, the Court in absence of a specific statutory provision, becomes functous officio in respect of that matter.

4. Learned lawyer for the petitioner on the contrary has drawn my attention to the principles laid down in AIR 1987 Rajasthan 83 (Habu –Vs.- State of Rajasthan), 1989 Cri L J 2382 (Giridharilal & Ors. –Vs.- Pratap Rai Mehta & Anr.), 1977 Cri L J 1520 (Kailash Nath Lahiri – Vs.- M/s. Shantilal Khushaldas & Bros. Pvt. Ltd.), 1985 Cri L J 23 (Deepak Thanwardas Balwani –Vs.- State of Maharashtra & Anr.) etc. to substantiate his claim that the Court has inherent power under Section 482 Cr.P.C. to recall its own order. In 1985 Cri L J 23 it has been held that in its inherent powers as provided in Section 482 Cr.P.C. the High Court can review or revise its judgement if such a judgement is pronounced without giving an opportunity of being heard to a party who is entitled to a hearing and that party is not at fault. For the mistake of the Court a party cannot suffer. In that case the hearing was adjourned to 13th February but in the Roznamcha the adjournment date was inadvertently marked as 8th February. On th February the petitioner and his Cou