An order passed in violation of the principles of natural justice can be recalled, but a review petition is maintainable only when there is an error apparent on the face of the record.

1. - An application has been moved for recalling the order dated 02.12.2011 passed by this court.The order dated 02.12.2011 is as under:-

"The learned counsel for the appellant pleads that under the amended Section 372 Cr.P.C., by which a proviso has been added, and the right to file an appeal has been granted to a victim, he seeks to file an appeal before the learned District & Sessions Judge. However, his anxiety is that he may be hit by limitation, as it is an appeal being filed by the complainant against an order of acquittal passed by the learned Magistrate.

The liberty to file an appeal before the concerned Sessions Judge is, hereby, granted. Since the present appeal has been filed before the wrong forum, the time taken in pursuing the remedy before the High Court shall be considered while deciding the point of limitation by the learned Sessions Judge.

These appeals, hereby, stand disposed of."

2. Mr.S.R.Surana, the learned senior counsel for the applicant, has contended that the case was between the complainant, M/s.Shiva International, and the accused-applicant, Rajesh Verma. Since it was a criminal case under Section 138 Negotiable Instruments Act, the State of Rajasthan was stranger to the case. Moreover, on behalf of the accused-applicant-respondent, the counsel had already filed his power. Yet on 02.12.2011, in the absence of the counsel for the accused-applicant, the order has been passed. Therefore, the principles of natural justice have been violated. Therefore, the order dated 02.12.2011 deserves to be recalled.On the other hand, Mr.Ashwin Garg, the learned counsel for the complainant-appellant, has contended that the power of review does not vest in this court under the Criminal Procedure Code. Hence, once the judgment has been signed, it cannot be reviewed by this court.

3. Secondly, merely because the order has been passed in absence of the learned counsel for the accused would not tantamount to violating the principles of natural justice. For, the name of the counsel was shown in the cause list and the counsel should have attended his case when called upon by this court. In case he failed to do so, he did it at his own peril.

4. Thirdly, the applicant has approached this court with a malafide intention, as they wish to prolong the case without any rhyme or reason. The order was passed by this court on 02.12.2011. The appeal was filed by the complainant before the learned Sessions Judge on 13.02.2012. The accused-respondent appeared before the learned Sessions Judge on 05.03.2012. The learned Sessions Judge had directed, the case to be listed on 16.01.2013 for pronouncement of the judgment. But just before pronouncement of the judgment, on 02.11.2012, the present application has been filed. Thus, the conduct on the part of the accused-respondent clearly reveals that he is trying to escape the noose. Therefore, the application should be dismissed with heavy cost.

5. In rejoinder, the learned senior counsel has contended that there is a difference between recalling of an order, and review of an order. Relying on the case of Asit Kumar Kar v. State of West Bengal & Ors. 2009(2) SCC 703 and on the case of Vishnu Aganval v. State of U.P. & Anr. 2011(7) Law digital in 628 (S.C.) : 2011(2) WLC(SC) Cri. 294: AIR 2011 SC 1232 , the learned counsel has contended that while recalling an order, the court does not enter into the merits of the case. If an order has been passed while violating the principles of natural justice, the order can be recalled. However, while reviewing an order, the court is called upon to enter into the merits of the case. Since in the present case the order has been passed in violation of the principles of natural justice, it deserves to be recalled. Moreover, while recalling the order, this court would not be entering into the merits of the case:

Heard the learned counsel for the parties and perused the order dated 02.12.2011.

In the case of Asit Kumar Kar (supra), the Apex Court has opined