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2005 Supreme(All) 1051
ALLAHABAD HIGH COURT
Poonam Srivastava, J.
Ayodhya Prasad son of Ramjas
Versus
State of U.P.
Criminal Misc. Application 6126 of 1999
Decided On : 27 May 2005
Criminal Misc. Application 6126 Of 1999
P.N.TRIPATHI, R.K.Chitragupt, Tripathi B.G.Bhai,
The judgment established the principle that while there is no provision in the Code for restoration or recall of an order, the court has inherent powers to undo a wrong and prevent gross injustice to one of the parties.
Headnote:
Recall - Criminal Procedure Code - Section 145(6)(a) - Section 362 - The court discussed the provisions of Section 362 of the Criminal Procedure Code, which imposes a bar on altering or reviewing a final order, except to correct clerical or arithmetical errors. The court also considered various case laws to determine the scope of review and recall of orders under the Code. The judgment emphasized the distinction between review and recall of an order, highlighting that the impugned order was not a review but a recall to be decided afresh after giving an opportunity to both parties.
Fact of the Case:
The Sub Divisional Magistrate passed exparte orders in favor of the applicant in a case under Section 145 Cr. P. C. The contesting respondents filed a recall application, which was allowed, leading to the present application challenging the recall order.
Finding of the Court:
The court found that the impugned order was not a review but a recall to be decided afresh after giving an opportunity to both parties. It emphasized the distinction between review and recall of an order and concluded that the impugned order did not suffer from any illegality or irregularity.
Issues: The issues revolved around the jurisdiction of the court to recall an exparte order under Section 145 Cr. P. C. and the applicability of Section 362 of the Criminal Procedure Code.
Ratio Decidendi: The court clarified that while there is no provision in the Code for restoration or recall of an order, the court has inherent powers to undo a wrong and prevent gross injustice to one of the parties. It emphasized the distinction between review and recall of an order, highlighting that the impugned order was not a review but a recall to be decided afresh after giving an opportunity to both parties.
Final Decision: The court dismissed the application and discharged the interim order, finding that the impugned order did not suffer from any illegality or irregularity.
( 1 ) HEARD Sri Tripathi B. G. Bhai, learned counsel appearing for the applicant Shri P. N. Tripathi, learned counsel appearing for the contesting respondents and learned A. G. A. for the State.
( 2 ) THE order dated 11. 8. 1999 passed by the Sub Divisional Magistrate, Itwa, District siddharthnagar has been challenged in this application whereby the exparte orders dated 3. 11. 1995 and 4. 11. 1995 have been recalled. The proceedings under Section 145 Cr. P. C. commenced between the contesting parties in respect of the house on the basis of the police report dated 7. 1. 1988, at Police Station. Trilokpur. A preliminary order was passed on 23. 1. 1988. Objections were filed by both the parties and the Sub Divisional Magistrate Itwa, after considering entire facts of the case, and going through the documents and other evidence produced by the parties released the disputed house in favour of the applicant on 23 11. 1990 under Section 145 (6) (a) Cr. P. C. This order was challenged in Criminal Revision No. 82 of 1990-Ganesh Narain and two Ors. v. Ayodhya and four Ors. The revision was allowed vide order dated 11. 10. 1991 setting aside the order dated 23. 11. 1990, passed in favour of the applicant. The case was remanded for afresh decision in the light of the observations made and the direction given in the judgment. After remand of the case, the parties appeared before the sub Divisional Magistrate, Itwa, and filed their written statements and counter affidavit. The Sub divisional Magistrate, fixed 3. 11. 1995 as next date in the case for evidence but none appeared on behalf of the contesting respondents. The applicant was present on the said date as such the sub Divisional Magistrate proceeded exparte against the contesting respondent and closed the evidence of the respondents No. 3 to 5 fixing 4. 11. 1995 for argument and delivery of judgment. On 4. 11. 1995, again contesting respondents were not present and an order was passed on merit after appraisal of the evidence and the documents already on record. Once again the property was released in favour of the applicant vide order dated 4. 11. 1995. The recall application was filed on behalf of the contesting opposite parties which was allowed on 11. 8. 1999.
( 3 ) THE submission on behalf of the applicant is that under the Code, there is no provision for recall or review of the order and as such the order dated 11. 8. 1999 is without jurisdiction and is liable to be set aside. The argument advanced on behalf of the applicant is that Section 362 cr. P. C. imposes a complete bar on the courts to review or alter a final order after it has been signed, except to correct a clerical or Arithmetical error. Section 362 Cr. P. C. of the provision is quoted below.
"court not to alter judgment-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 arithmetical error. "
( 4 ) IT has been argued that the final order dated 4. 11. 1995 is a judgment within the meaning of section 362 Cr. P. C. which include a final, order as such the court was functus officio and it has no jurisdiction to entertain an application and recall the same. Reliance has been placed in the case of Hari Singh Mann v. Harbhajan Singh Bajhwa and Ors. 2001 (42) ACC page 75, In the instant case, an order was passed under Section 482 Cr. P. C. by the High Court of Punjab and haryana after disposal of the petition filed by one of the parties, a second misc. petition was instituted and the learned Single Judge without notice to the other side reviewed its earlier order, this was not approved by the Apex Court and it was held that the High Court cannot review its earlier order completely ignoring the basic principle of criminal law. No review of the judgment is contemplated under the code of criminal procedure after disposal of the main
