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Powers of High Courts to recall judgments/orders in criminal matters: An Analysis

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Gaurav Thote
Gaurav Thote
Advocate, Bombay High Court

On November 22, the Supreme Court set aside[1] a Kerala High Court order[2] whereby the High Court recalled its earlier order quashing rape and child sexual assault charges against various accused. The Supreme Court comprising Justices Vineet Saran and Aniruddha Bose while referring to Section 362 of the Code of Criminal Procedure (“Code”) observed that the Court did not have the power to alter its judgment and order once passed, except to correct a clerical or arithmetical error. 

In the factual matrix of the said case, the Kerala High Court had initially[3] quashed the proceedings against the accused on the ground of marriage between the parties. While doing so, the High Court did not take into consideration the law laid down by the Supreme Court in Gian Singh v. State of Punjab[4]Parbatbhai Aahir v. State of Gujarat[5] and State of Madhya Pradesh v. Laxmi Nayaran[6] which had held that heinous offences like murder, rape, dacoity etc could not be quashed even if the dispute between parties was settled considering the nature, gravity and effect on society. Relying upon Vishnu Agarwal v. State of Uttar Pradesh, the High Court recalled the quashing order holding that there was no legal impediment to invoke its power under Section 482 of the Code as the matter was adjudicated without referring to the Supreme Court’s view.

Challenging this course, the accused approached the Apex Court. Without referring to its earlier views, Apex Court accepted the plea of accused observing that there was no power available to the Court to recall or review any order except under Section 362 of the Code which only provided for correction of any clerical or arithmetical error.

Analysis

High Courts are vested with inherent powers under Section 482 of the Code to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. In Madhu Limaye v. State of Maharashtra[7], the Supreme Court while elaborating on the powers under Section 482 of the Code, observed that it was impermissible for the High Court to exercise its inherent powers as against the express bar of law engrafted in any of the provisions under the Code.

Section 362 of the Code expressly bars the power of criminal courts to alter or review its final judgments/orders, stating, “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.”

In State of Punjab v. Davinder Pal Singh Bhullar[8], the Supreme Court while carving out certain exceptions to Section 362 of the Code, observed that a judgment pronounced without jurisdiction or in violation of principles of natural justice or where the order had been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, the High Court was entitled to exercise its inherent powers under Section 482 of the Code to recall such order for the reason that in such an eventuality, the order become a nullity and Section 362 became inoperative.

It was further observed that if there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. However, where no such changed circumstances existed and the decision had to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion was in effect a review, which was expressly barred under Section 362.

In New India Assurance Co. Ltd. v. Krishna Kumar Pandey[9], a three-judge bench of the Supreme Court, while referring to Davinder Pal Singh Bhullar’s judgment, set aside the Madhya Pradesh High Court’s order refusing to recall its order which had sealed the employer’s right to take action against the conduct of a convicted employee, observing that that the inherent power of the High Court under Section 482 of the Code was saved where an order which was required to be set aside to secure the ends of justice or where the proceeding amounted to abuse of the process of Court had been passed by the criminal Court. The High Court had refused to recall its earlier on the ground that the coordinate bench’s order could not be reviewed in view of Section 362. In the said case, the employee – accused had joined the services of the employer in the 1985. The employee’s daughter in law lodged a criminal case against the employee’s son and family members including the employee. The criminal case culminated into conviction of the employee in the Magistrate’s Court.

The employee preferred an appeal before the Additional Sessions Judge which was dismissed. The employee’s Revision Application before the High Court was partly allowed to the extent of reducing the punishment imposed to the period already undergone, subject to payment of compensation/fine amount. The employee thereafter moved an application purportedly seeking for correction of the High Court’s order. On the said application, the High Court passed an order clarifying that the conviction shall not affect the service career of the respondent adversely, in any manner.

This order was passed on the ground that the factum of employment of the employee with the employer was not brought to the notice of the Court when the revision was disposed and that the conviction may impact the service career of the respondent adversely. Upon being informed of the said order, the employer moved an application under Section 482 of the Code for recalling the order on the basis that the right of the employer to take note of any misconduct on the part of the employee, which led to his conviction by a criminal court, could not be taken away in a collateral proceeding behind the back of the employer. 

The High Court dismissed the miscellaneous application on the short ground that a review of the order passed by a coordinate bench was not permissible and that the employer was at liberty to file appropriate proceedings. This view in essence was set aside by the Supreme Court observing that the High Court had ventured to do something which it was not empowered to do and thus  ought to have recalled its order to secure the ends of justice.  

Conclusion

Article 141 of the Constitution of India observes that the law declared by the Supreme Court shall be binding on all courts within the territory of India. Although the High Court’s initial order was inter se binding between the parties, it was ex facie impermissible as the Court was bound by the law declared by the Supreme Court. The High Court had initially ventured to do something which it was not empowered to do. In this backdrop, the Court drew a distinction between  a recall order and a review order and then proceeded to recall its previous order to secure the ends of justice. By no stretch of imagination would this course attract the bar of Section 362 of the Code in view of the dictum laid down in Bhullar and New India Assurance (supra).

Considering these binding precedents, the Supreme Court’s order of November 22 needs immediate reconsideration as it has been rendered without taking into account the aforesaid views.

Views are personal.


[1] Criminal Appeal No. 1444/2021 arising out of SLP (Cri.) No. 5362/2021 [REPORTABLE]

[2] Crl.M.C. 5866/2020 dated 28/04/2021

[3] Crl.M.C. 5866/2020 dated 20/04/2020

[4] (2012) 10 SCC 303

[5] (2017) 9 SCC 641

[6] 2019 SCC OnLine SC 320

[7] (1977) 4 SCC 551

[8] (2011) 14 SCC 770

[9] Criminal Appeal No. 1852 of 2019 arising out of SPL No. 8499 of 2014

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Gaurav Thote
Gaurav Thote
Advocate, Bombay High Court
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