‘However patently erroneous the earlier order be, it can only be corrected in the process known to law and not under Section 362 Cr.P.C.’
The Supreme Court in Mohammed Zakir vs. Shabana has observed that a Criminal Court including High Court (while exercising criminal jurisdiction) cannot recall an earlier order invoking Section 362 of the Code of Criminal Procedure, on the ground that it was ‘patently erroneous’.
A bench of Justice Kurian Joseph and Justice Sanjay Kishan Kaul was considering a criminal appeal filed against a ‘recall’ order passed by Karnataka High Court.
The high court, recalling an order it had passed in the matter 10 days ago, had ordered: “Notwithstanding Section 362 of Cr.P.C. the order rendered by this Court earlier on 18.04.2017 is found to be patently erroneous and therefore the order is withdrawn. The petition is restored to file and the registry is directed not to webhost the order passed earlier and to take note of the fact that the order is withdrawn.”
The earlier order passed by the high court is not traceable. It appears that matter before the high court was with regard to challenge against a notice issued in a criminal appeal before Session’s court.
Observing that the high court should not have exercised the power under Section 362 CrPC for a correction on merits, the bench said: “However patently erroneous the earlier order be, it can only be corrected in the process known to law and not under Section 362 Cr.P.C. The whole purpose of Section 362 Cr.P.C. is only to correct a clerical or arithmetical error. What the High Court sought to do in the impugned order is not to correct a clerical or arithmetical error; it sought to rehear the matter on merits, since, according to the learned Judge, the earlier order was patently erroneous. That is impermissible under law.”
The bench, taking note of the fact that criminal appeal is pending before Principal City Civil and Sessions Judge, Bengaluru, set aside the original order passed by the high court, by directing the Session’s court to dispose of the matter expeditiously.
Recently, the Patna High Court had recalled an order dismissing a criminal appeal in a rape case apparently invoking Section 482 CrPC. The high court had observed: “A prohibition has been imposed in altering, modifying, the judgment once it is delivered. However, like Section 151 CrPC, no such provision is found under the CrPC so far, subordinate courts are concerned. However, Section 482 of the CrPC prescribes and properly identifies the power of the High Court under its inherent jurisdiction and further having been boundless limit.”