The inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code.

ORDER :

Rajan Roy, J.

(C.M.A. No.146727 of 2018: Application for recall)

1. This is an application for recall of the order dated 4.8.2018 by which the earlier application under section 482, Cr.P.C. had been decided on merits in the following terms:

"None appears for the applicants, though the list of cases has been revised.

This application under section 482, Cr.P.C. was filed in the year 2007 challenging the summoning order.

An order was passed on 25.5.2007 staying the proceedings in Criminal Case No.1156 of 2006 pending before the Judicial Magistrate, Ambedkar Nagar.

The only averment made in the affidavit in support of the application is that the applicants have been falsely implicated. This plea can be raised before the Magistrate concerned alongwith an application for discharge at the appropriate state.

Having heard learned counsel for the parties and perused the record this court does not find any valid ground to exercise its powers under Section 482, Cr.P.C., but without prejudice to the rights of the petitioners to seek a discharge at appropriate stage in the proceedings before the Court(s) below, however, considering the facts of the case, particularly the fact that there has been a stay on the proceedings and considering the fact that the applicant no.1 is about 73 years of age as of now as is borne out from from the supplementary affidavit of 12.4.2017, though the applicant no.2's age is not mentioned, it is provided that the applicants shall appear before the court(s) concerned within 30 days from today and move an application for bail. In the aforesaid eventuality, the bail application shall be considered and disposed of on merits, expeditiously, in accordance with law laid down by this court in Amrawati and another Vs. State of U.P., 2004 (57) ALR 290, and the pronouncement of the Supreme Court in Lal Kamlendra Pratap Singh Vs State of U.P., 2009 (3) ADJ 322 (SC).

It shall be open for the applicants herein to raise all the relevant pleas before the trial court at the appropriate stage and seek his discharge therefrom.

Till the aforesaid period of 30 days or till the disposal of the bail application, whichever is earlier, no coercive measure shall be taken against the applicants.

In case the applicants do not appear before the court below within the aforesaid period, benefit of this order shall not be available to them.

With the above observations/directions this application is disposed off."

2. On being pointed out the impermissibility of such a recall in view of section 362, Cr.P.C. learned counsel for the applicant cited two decisions reported in 2011 (14) SCC 813, Vishnu Agarwal v. State of U.P. & ors.; 2009 (2) SCC 703, Asit Kumar Kar v. State of West Bengal, to contend that if the order had been passed in the absence of the counsel for the applicant/petitioner, then the same was liable to be recalled and the provisions of section 362, cannot be considered in a rigid and hyperertechnical manner to defeat the ends of justice.

3. Learned counsel for the applicant has also relied upon another decision reported in 2006 (7) SCC 296 to contend that the inherent power under section 482, Cr.P.C. can also be exercised by this Court even while considering the application for recall of the order.

4. Learned A.G.A. on the other hand has relied upon a decision of the Supreme Court reported in AIR 2017 SC 310, especially paragraphs 13 and 14 thereof, to contend that even the exercise of inherent power to recall an order passed on merits by taking recourse to section 482, Cr.P.C. was impermissible in view of section 362, Cr.P.C., as inherent power cannot be exercised when the Code of Criminal Procedure specifically prohibits it. He has also relied upon a Single Judge Bench decision of this Court reported in 2014 (84) ACC 45, Hari Prakash v. State of U.P., wherein also same view had been taken relying upon various Supreme Court decisions. He also relied upon a recent decision of the Supreme Court reported in 2018 (3) JIC 17, Mohammad Zak