Seldom It Occurs: Patna HC Recalls Its Judgment In Criminal Appeal

‘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.’

Can a high court, dealing with criminal appellate jurisdiction, recall a judgment after it is pronounced? Does Section 482 CrPC empower it to do so when Section 362 puts an embargo to call, recall or review any judgment or order passed in criminal case once it has been pronounced and signed?

The Patna High Court has recently recalled an order dismissing a criminal appeal in a rape case.

Subodh Kumar was convicted by the trial court. The high court initially admitted the appeal and rejected the bail application. Thereafter, another bail application was filed and the counsel for the accused is said to have argued it as if he was arguing the appeal on its merit. The bench reserved the matter for orders, and on 27^th June 2018, judgment was pronounced dismissing the appeal, upholding the conviction.

Another application was filed seeking recall of the judgment, contending that though the merit of the case was touched but the same was in order to persuade the bench that from the evidence of the victim being major was a consenting party and so, it was not a case of rape whereupon bail should be granted.

Though the public prosecutor opposed the plea to recall judgment, Justice Aditya Kumar Trivedi 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.”

The court also referred to some apex court decisions on the power conferred under Section 482 CrPC and recalled the judgment.

The judge, allowing the plea, ended his order said: “However, it looks appropriate to direct this matter to be delisted from my board.”

Author’s note

In 2014, the Supreme Court, while dismissing a Special Leave Petition, had observed that t judge can recall the order and change his mind even though the draft copy is signed and dictated in the open court.

In the said judgment, the apex court quotes another judgment in Surendra Singh & Ors. v. State of U.P., in which it is observed thus: “Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of 'locus paenitentiae' and indeed last minute alterations often do occur. Therefore, however much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as the judgment of the Court. Only then does it crystallise into a full-fledged judgment and become operative.”

But, in this case, the judgment was reserved and was formally pronounced. Is it possible to recall the judgment invoking Section 482 CrPC? We will wait for the Supreme Court to answer, if the state assails this order before it.