The court's inherent power to recall an order obtained in violation of the principles of natural justice can be exercised even if the order is a final order and is not appealable.

Toufique Uddin, J.

1. This relates to an application for recalling of order dated 06.01.2014 and 06.08.2013 passed by this Court. The case of the present petitioner is as follows:-

One Pravash Chandra Sarkar, the Secretary of the Managing Committee of Purgram S.C. High School on 25.11.2012 lodged a written complaint against the present petitioner Opposite Party No. 2 with the Kaliaganj P.S. that he defalcated Rs. 1.75 lacs without any authority. Apprehending arrest, the present petitioner filed an application for anticipatory bail in the court of learned District Judge, Uttar Dinajpur at Raigunge. On hearing of both sides, the learned Court granted anticipatory bail to the Opposite Party No. 2. Against the said order of anticipatory bail, Pravash Chandra Sarkar lodged CRM 470 of 2013 before the Hon'ble court with a prayer for the cancellation of bail granted to the Opposite Party No. 2.

2. One Sujata Das, learned counsel for the petitioner could not remain present at the relevant point of hearing on 6.8.2013. So, on hearing of the complainant as well as the learned counsel for the State the Hon'ble Court cancelled the anticipatory bail on 6.8.2013 and directed the present petitioner/Opposite Party No. 2 to surrender before the learned Court below on or before 3.9.2013.

3. Thereafter, the Opposite Party No. 2 on 11.12.13 filed an application for recalling of the said order dated 6.8.13 but unfortunately again on 6.1.2014 the above recalling application being CRAN 108 of 2014 was dismissed by the Hon'ble Court. So, On 08.01.2014 the Opposite Party No. 2 filed another application for recalling order dated 06.01.2014.

4. Hence the present petition.

5. The learned counsel for the petitioner/Opposite Party No. 2 not only filed written argument but also made oral submission by stating that Section 362 of the Code of Criminal Procedure has no manner of application for recalling of the order of bail or anticipatory bail or for cancellation of the bail because it is neither a final order nor a judgment in the eye of law.

6. In support of his contention the learned Counsel cited before me the decisions in the case of Usman Bhai Daud Bhai Menon & other vs. State of Gujarat reported in AIR 1988 Supreme Court 922; Sudip Sen vs. State of West Bengal reported in (2010) 3 C Cr LR (Cal) 314.

7. He further argued that an opportunity should be given to the accused before passing any order to administer justice in accordance with law. In support of his contention he cited before me the decisions of Md. Sukur Ali vs. State of Assam reported in 2011 Cr LJ 1690 (Supreme Court); M.S. Tirupati vs. C.H. Ramakrishna Rao reported in (2010) 1 C Cr LR (Cal) 391 and Sri Mritunjoy Pradhan vs. State & another reported in (2011) 2 C Cr LR (Cal) 747.

8. The learned Counsel further argued that the prayer for cancellation of the anticipatory bail cannot be filed before a Single Bench instead of a Division Bench of the Hon'ble High Court. He also argued that the order passed by this Bench on 6.1.2014 is, therefore, a nullity being without jurisdiction and accordingly, quorum non-judice and as such, the provision of Section 362 of the Code of Criminal Procedure is not attracted. Further, it was argued that in terms of the decision in the case of B.N. Elias & Co. Ltd. vs. Md. Idris Ali & other reported in (2013) C Cr LR (Cal) 437 and Bishnu Agarwal vs. The State of U.P. reported in AIR 2010 Supreme Court 1232, the prayers ought to have been filed first before Learned Sessions Judge, Uttar Dinagpur, Raiganj. He argued that the order can be recalled as it is neither changing nor altering nor reviewing the order passed earlier. Therefore, he prayed for recalling of the order dated 6.8.2013 as well as 6.1.2014.

9. On the other hand, the learned Counsel for the Opposite Party herein/the original petitioner at the first hand submitted that the argument as placed by the learned Counsel for the present petitioner i.e. Opposite Party No. 2 is an attempt in desperation