Orders Not Passed On Merits Can Be Recalled By HC To Prevent Abuse Of Process: Punjab & Haryana High Court

The Punjab & Haryana High Court has recalled its order observing that the bar of Section 362 of Criminal Procedure Code would not apply on recalling orders which are not passed on the merits of a case.

Section 362 of CrPC states that, "save as otherwise provided by the Code or by any other law, 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."

A single judge bench of Justice Anoop Chitkara explained, "...there are two distinct phases of prohibition under Section 362 CrPC, 1973. If the order and judgment have been passed on merits, i.e., after applying judicial mind, then certainly Section 362 CrPC would come into place, and the Court would be functus officio; however, when the orders have been passed on technicalities like dismissal in default or non-prosecution or wrong statement, these are certainly not the orders passed on merits, and the High Courts would be well within their jurisdiction to re-call such orders to prevent abuse of process of law and secure ends of justice."

Justice Chitkara observed that the high court has statutory powers under S. 482 Code of Criminal Procedure Code (CrPC) to prevent abuse of the court's process; however the provision does not state that the term "any court" would not include the high court. It said that "any" must include the "high court". 

The high court further observed that while S. 362 CrPC creates an express bar on courts not to alter/review any judgment/final order once signed–except to correct a clerical/arithmetical error, the present plea was filed under S. 482 of the code which is for recalling the order. 

"Recalling an order does not mean reviewing, altering, or modifying an order. It implies that if the applicant's prayer is accepted, the order shall cease to exist and operate," the high court underscored, distinguishing between "recalling an order or judgment" and "alteration, review, or modification" of an order. 

It said that if the Court exercises its "inherent jurisdiction" under S. 482 CrPC to prevent the abuse of the process of law, such powers would not be eroded by the restriction imposed by S. 362 CrPC on alteration or review.

The observations were made in response to a plea filed by the State of Punjab to recall an order passed for clubbing the police reports in an FIR pertaining to scam in the irrigation department, because the State did not object.

The High Court however clarified that it neither went into the case's merits nor touched the legality or necessity of clubbing the challans but had proceeded because of the State's No Objection to the petitioner's prayers to club the police reports of all the accused.

The State's counsel submitted in reply that the no objection to club the police reports were given, "under a misconception oblivious of the practical difficulties/ impracticality in holding a joint trial. legal and factual complications involved besides the fact that a joint trial would rather make the conclusion of the trial practically impossible."

"It will be a huge task to ensure presence of all accused on a given day, to determine the order in which witnesses are to examined, the marshalling of documents to be brought in evidence, the complexities in framing statements under section 313 Cr.P.C and most of all the complex situation which a trial judge would face in marshalling and sifting such voluminous records and number of witnesses to reach a finding about guilt or otherwise of the accused," the reply added.

After hearing the submissions, the Court noted that, "This Court's order was not on merits but based on no objection given by the State's counsel. The prayer is not to alter, modify, or review the order but to recall it by exercising inherent jurisdiction under section 482 CrPC, 1973, to secure the ends of Justice."

The judge observed that the statutory prohibition under Section 362 CrPC certainly implies that when the orders are passed on merits and once the Courts have applied their mind and pronounced and signed the judgment, they become functus officio, and when the matters are not decided on merits, but on technicalities, it would be an altogether different scenario.

Referring to various judgements, the Court highlighted that, "the ground realities are that the High Courts have been allowing applications to re-call the orders where the matters had been finally closed for non-prosecution or dismissal in default despite the Courts allowing such applications by resorting to its inherent jurisdiction under Section 482 CrPC."

The high court thereafter allowed the plea and recalled its order. Directing the court's registry to restore the plea to its original number, the high court listed the matter for hearing on August 27. 

Mr. R.S. Cheema, Sr. Advocate with Mr. A.S. Cheema, Advocate

Mr. Satish Sharma, Advocate and Mr. Prince Baral, Advocate

for the applicant-petitioner.

Mr. A.D.S. Sukhija, Addl. A.G., Punjab.

Title: GURINDER SINGH V. STATE OF PUNJAB

 Citation: 2024 LiveLaw (PH) 191

Click here to read/download the order