The distinction between recall and review, and the maintainability of recall/restoration application when the order or judgment is passed in the absence of the counsel for the respondent.

Mohd. Tahir,J.

Case called out.

Learned counsel for both the parties are present.

2. Heard learned counsel for both the parties and perused the record.

3. Heard on delay condonation application no.211265 of 2014.

4. The delay condonation application is supported by affidavit. The cause shown for the delay in filing the recall application appears to be satisfactory. So, the delay in the filing the recall application is, hereby, condoned. The recall application is treated within time.

5. Heard on restoration/recall application No.211266 of 2014 which has been moved for getting the order dated 3.3.2014 passed in transfer application (Criminal) no.64 of 2014 recalled.

6. Learned counsel for the applicant has submitted that the transfer application which has been sought to be restored, was fixed for hearing on 3.3.2014 but on that date, the counsel for the applicant could not appear in the court because he could not mark the case in question in the cause list and consequently the transfer application no.64 of 2008 was dismissed due to absence of the counsel for the applicant. So, the order dated 3.3.2014 be recalled and the aforesaid transfer application be restored to its original number. In support of his contention, he has cited the ruling of Hon'ble Supreme Court which has been rendered in Vishnu Agarwal Vs. State of U.P. and Anr., 2011 CRI.L.J. 1744. He has also placed reliance on the Full Bench decision of Rajasthan High Court in the case of Habu Vs. State of Rajasthan, 1987 AIR (Raj) 83 . On the basis of these rulings the contention of the counsel for the applicant is this that the recall/restoration application is maintainable even in criminal side and the bar of Section 362 Cr.P.C. is not attracted.

7. On the other hand, learned counsel for the private opposite party has submitted that by virtue of Section 362 Cr.P.C. the order cannot be recalled and the transfer application cannot be restored to its original number. He has cited the case laws of Allahabad High Court given in recall/restoration application no.264945 of 2009 filed in transfer application (criminal) no.90 of 2004 Smt. Madhu Gupta and others Vs. State of U.P. and another and Hari Prakash Saxena Vs. Pratibha Saxena, 2006 (56) ACC 556. In these case laws of Allahabad High Court, it has been held that if the transfer application is dismissed in default, the order of dismissing the transfer application cannot be recalled and the transfer application cannot be restored to its original number.

8. I have considered the rival submissions of learned counsel for both the parties.

9. The question is this as to whether the words 'recall' and 'review' are one and the same thing ?

10. The answer to this question finds place in the decision of the Hon'ble Apex Court in the case of Vishnu Agarwal (Supra) cited by the counsel for the applicant. In this decision, the Hon'ble Apex Court in para-9 referred the observations made in the case of Asit Kumar V. State of West Bengal and Ors. 2009 (1) SCR 469 ; (AIR 2009 SC (supp) 282), in which the Hon'ble Supreme Court made a distinction between recall and review which is as under:

"There is a distinction between ......a re-view petition and a recall petition. While in a review petition, the Court considers on merits whether there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association V. Raghabendra Singh & Ors. {2007(11) SCC 374} : ( AIR 2007 SC 1386 ) cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences."

11. In the above decision of the case of Vishnu Agarwal (Supra), the Hon'ble Supreme Court has also specifically held that Section 362 Cr.P.C. cannot be co