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2020 Supreme(All) 833
IN THE HIGH COURT OF ALLAHABAD
ROHIT RANJAN AGARWAL, J.
Yaqoob Husain – Appellant
Versus
State – Respondent
CRIMINAL REVISION No.1649 of 1989 IN Criminal Misc. Recall Application No.3 of 2020, Criminal Misc. Recall Application No.2 of 2020 IN CRIMINAL REVISION No. - 1511 of 1992, Criminal Misc. Recall Application No.2 of 2020 IN CRIMINAL REVISION No. - 904 of 1995, Criminal Misc. Recall Application No.2 of 2020 IN CRIMINAL REVISION No. - 415 of 1996, Criminal Misc. Recall Application No.3 of 2020 IN CRIMINAL REVISION No. - 712 of 1997, Criminal Misc. Recall Application No.3 of 2020 IN CRIMINAL REVISION No. - 1202 of 2000, Criminal Misc. Recall Application No.2 of 2020 IN CRIMINAL REVISION DEFECTIVE No. - 57 of 1996
Decided on : 16-12-2020
Advocate Appeared:
For the Appellant : V.P. Srivastava, Ms.Sufia Saba
Headnote:
Code of Criminal Procedure, 1973 – Sections 362, 401 – Constitution of India, 1950 – Article 32 – Recalling Final Order – Application for recalling the final order passed by coordinate Bench of this Court has been moved on the ground that the same was passed due to non presence of the counsel for the revisionists, as such, all the matters are being heard and decided by a common order, and Criminal Revision is taken as the leading case – In the recall application the ground taken is that the revisionist was enlarged on bail in the year 1989 and thereafter this case was looked after by his uncle who was in contact with the concerned advocate – As the counsel was designated as senior advocate, he lost in touch and the matter was finally decided on 31.07.2019 – It is contended that the said order be recalled and the criminal revision be restored to its original number – In other revisions, which are also decided on various dates in the absence of counsel, similar prayer has been made for recalling the order passed by coordinate Bench and the matter be restored for decision afresh. – Whether in view of bar of Section 362 Cr.P.C., the judgment or order rendered/passed by any coordinate Bench can be recalled though passed in the absence of counsel –
Finding of the Court:
Simply because the counsels had not appeared in the revised call, the decision rendered by the coordinate Bench after perusing the record cannot be rendered otiose and the order cannot be recalled – Bar expressed under Section 362 Cr.P.C. is clear, that once the Court had signed its judgment or final order, disposing of a case, it shall not alter or review the same except to correct clerical or arithmetical error – This bar has been provided by the legislature intentionally so as to put a safeguard that the final judgment and orders are not altered or reviewed now and then. – Apex Court has also felt that if any leverage is granted and the orders are permitted to be recalled on the ground of absence of counsels, it would cause great chaos and thus has propounded six legal propositions wherein the Courts can decide the cases in absence of counsel only after perusal of record and the same can be remedified only by the higher Court. – Thus, in view of the law laid down by the Apex Court, no judgment or order can be altered, reviewed or recalled in view of bar under Section 362 Cr.P.C. –
Result: Recall Applications Rejected
JUDGMENT :
Rohit Ranjan Agarwal, J.
1. In all these seven criminal revisions, application for recalling the final order passed by coordinate Bench of this Court has been moved on the ground that the same was passed due to non presence of the counsel for the revisionists, as such, all the matters are being heard and decided by a common order, and Criminal Revision No.1649 of 1989 is taken as the leading case.
2. In Criminal Revision No.1649 of 1989, the order dated 31.07.2019, which is sought to be recalled, is extracted here as under:
“1. Called in revise. None appeared to press this revision. In the circumstances, I myself have perused the record.
2. This criminal revision under Section 401 read with Section 397 Cr.P.C. has been filed aggrieved by judgment and order dated 04.07.1989 passed by 4th Additional Munsif Magistrate, Moradabad in Case No. 507 of 1988 convicting and sentencing revisionists under Sections 323/34 and 324/34 I.P.C. Thereagainst accused-revisionists preferred Criminal Appeal No. 83 of 1989 which has been dismissed by Sessions Judge, Moradabad vide judgment and order dated 08.11.1989. This revision has been filed challenging both the aforesaid orders.
3. Having gone through the record, I do not find any manifest error or otherwise illegality, procedural or otherwise, so as to justify interference in criminal revision.
4. Dismissed.
5. The revisionists Yaqoob Husain and Kamal Anwar are on bail. Their bail bonds and surety bonds are cancelled. The Chief Judicial Magistrate, Moradabad shall cause them to be arrested and lodged in jail to serve out sentence passed against them. The compliance shall be reported within two months.
6. Certify this judgment to the lower Court immediately.”
3. In the recall application the ground taken is that the revisionist was enlarged on bail in the year 1989 and thereafter this case was looked after by his uncle who was in contact with the concerned advocate. As the counsel was designated as senior advocate, he lost in touch and the matter was finally decided on 31.07.2019. It is contended that the said order be recalled and the criminal revision be restored to its original number.
4. In other revisions, which are also decided on various dates in the absence of counsel, similar prayer has been made for recalling the order passed by coordinate Bench and the matter be restored for decision afresh.
5. On behalf of the applicants-revisionists Sri Sanjeev Pandey, Sri Sunil Kumar, Sri Awadhesh Prasad Pandey, Sri Girish Tiwari, Sri Akhilesh Tripathi, Ms. Sufia Saba and Sri Shiva Ji Singh Sisodiya, Advocates, appeared and advanced their submissions. Sri D.K. Srivastava, learned A.G.A. appeared for the State.
6. The sole question which emerges for consideration is, as to whether in view of bar of Section 362 Cr.P.C., the judgment or order rendered/passed by any coordinate Bench can be recalled though passed in the absence of counsel ?
7. Addressing on this question, Sri Sanjeev Pandey submitted that bar, as contained in Section 362 Cr.P.C., is in regard to altering or reviewing the judgment or order, while in the present case the revision was decided in absence of counsel, thus, it was not a judgment or order and it can be recalled, as no prayer for review or altering the judgment has been made.
8. Reliance has been placed upon a decision of the Apex Court in case of Asit Kumar Kar vs. State of West Bengal and Others (2009) 2 SCC 703. Relevant paras 7 and 8 of the judgment is extracted here as under :
“6. There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where 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.
7. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All B
