Recalling an order passed in a criminal case, the Allahabad High Court observed that bar contained in section 362 of the Criminal Procedure Code applies for review, and not recall.
Section 362 CrPC provides that 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.
However, to recall the order in the present case, Justice Rajeev Misra based this reasoning on a Supreme Court judgment in Vishnu Agarwal Vs.State of U.P. In the said case it was observed: "There is a distinction between ...... a review 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."
It also referred to a single bench judgment of the High Court in Jawahar Lal @ Jawahar Lal Jalaj Vs. State of U.P. that held that application for restoration or recall of the order is maintainable and the prohibition of Section 362 Cr.P.C. do not apply in the petitions, which have been dismissed in default without discussing the merits of the case because it do not come within the prohibition of 'alter' or 'review' of judgment, which has entirely a different meaning.
The court, in this case, noted that, while passing the order, the opposite party was not represented by any counsel nor notices were issued to him before finally deciding the application. Rule of audi alterem partem requires that opportunity of hearing should be afforded before an order is passed on judicial side, the bench added. It observed:
"The Apex Court in case of Vishnu Agarwal (Supra) and judgement of learned Single Judge in Jawahar Lal (Supra) have reiterated that there is difference between recall and review. By seeking recall of order dated 15.12.2016, opposite party No.2 is not seeking review of order dated 15.12.2016 and therefore bar contained in section 362 Cr.P.C. will not come in way. Consequently, I am of the considered opinion that order dated 15.12.2016, is liable to be recalled at the behest of opposite party No.2, who admittedly was not afforded any notice or opportunity of hearing before order dated 15.12.2016 was passed."
Advocate Sikandar B. Kochar appeared for the Applicant and Senior Advocate Anoop Trivedi assisted by Advocates Abhinav Gaur and Vibhu Rai appeared for the Opposite party in this case.
SC View: Section 362 CrPC Bars Recall Also
While setting aside a Madhya Pradesh High Court order that allowed an accused's prayer seeking to review, recall and modify the order, the Supreme Court had observed that, in view of the specific bar which is contained in Section 362, the order of the High Court is unsustainable.
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'.
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