Bar U/S 362 CrPC Is Not Absolute; Court Has Inherent Jurisdiction To Recall Order For Securing The Ends Of Justice: Orissa High Court

"The position that emerges from a reference to the case laws noted above is that the bar under Section 362 of Cr.P.C. is not absolute and in any case, does not apply in case of recall of the order. There is no dispute that the inherent power of the High Court under Section 482 of Cr.P.C. can be exercised if any of the three conditions exist, namely, to give effect to any order under the Code, to prevent abuse of the process of Court or to secure the ends of justice."

Factual Background:

An application was filed by the petitioners under Section 482 Cr.P.C. to challenge the orders passed by the Sessions Judge-cum-Special Judge, Malkangiri. It was contended by the petitioners that they were arrested on 06.09.2020 and remanded to judicial custody on the same day and as such, the stipulated period of 180 days for completion of investigation was due to expire on 03.03.2021.

The Special Judge, acting on a petition filed by the Investigating Officer (I.O.) and the Special Public Prosecutor (Special PP), on 02.03.2021 extended the said period by 60 days. Accordingly, the extended period was due to expire on 01.05.2021. On the said date, the accused persons were neither produced before the Special Judge nor their right to be released on 'default bail' was informed to them, even though charge sheet was not been filed. Charge sheet was submitted two days later, i.e., on 03.05.2021, which was accepted and the petitioners were further remanded ignoring thereby their indefeasible right under Section 167(2) of Cr.P.C.

The High Court, considering the averments, held that the extended period was due to expire on 01.05.2021 and since the accused persons were not produced before the Court nor they were informed of their right of being released on bail despite non-submission of charge sheet, allowed the application granting liberty to the petitioners to move the trial court for bail with further direction that they shall be released on bail on such terms and conditions as may be fixed by the trial court including the condition that they shall personally appear before the trial Court on each date of posting of the case without fail.

Thereafter, this interim application (I.A.) was filed. The State had taken the stand that the accused persons were remanded on 07.09.2020 and thereby, 180 days was due to expire on 06.03.2021 and not 03.03.2021. The I.O. prayed for extension of time by filing a petition on 27.02.2021, which was allowed on 02.03.2021 for a period of 60 days, which was due to expire on 05.05.2021. Charge sheet was submitted on 03.05.2021. On such basis, it was alleged that the accused persons deliberately misrepresented facts to mislead the Court to obtain the order in their favour and therefore, the said order should be recalled.

Contentions of the State:

Mr. S.K. Mishra, Addl. Standing Counsel for the State argued that the petitioners were guilty of misrepresentation of facts. It was submitted that the accused persons were arrested on 06.09.2020 but were produced on 08.09.2020 and accordingly, 180 days period was due to expire on 03.03.2021. Taking the same as the period of completion of 180 days period, the extended period has been mentioned as 01.05.2021 and since charge sheet was submitted on 03.05.2021, the same is portrayed as submission after expiry of two days.

He also drew attention of the Court to the date chart filed by learned counsel for the petitioners, which is on record, wherein the above facts have been clearly noted. According to him, the petition for extension of time was filed and allowed before expiry of the 180 days period and charge sheet was also submitted before expiry of the extended period and therefore, no indefeasible right whatsoever accrued in favour of the petitioners for being released on default bail. But by completely misrepresenting such facts they have obtained the order, which is nothing but a fraud played on the Court. Therefore, he prayed that the order should be recalled.

Contentions of the Petitioners:

Mr. J.K. Panda, learned counsel appearing for the petitioners contended that the I.A. is not maintainable in law for the reason that as per Section 362 of Cr.P.C., the Court has no power to recall its own order after the same has been pronounced as it would amount to sitting in appeal over its own order. However, he neither admitted nor denied the contentions raised by the State Counsel with regard to alleged misrepresentation of dates noted above.

Issue Raised for Consideration:

Whether prohibition under Section 362, Cr.P.C. is absolute? How does such prohibition operate viz-a-viz the inherent power of the High Court?

Observations of the Court:

The Court made reference to the judgment of the Apex Court in R. Rajeshwari v. H.N. Jagdish, 2008 (4) SCC 82, wherein it was held that although a specific bar has been created in regard to exercise of the jurisdiction of the High Court to review its own order and ordinarily, exercise of jurisdiction under Section 482 of the Code of Criminal Procedure would be unwarranted but in some rare cases, the High Court may do so where a judgment has been obtained from it by practicing fraud on it.

It was further held that there is an inherent distinction between alteration or review and recall of an order. In this regard, the Court relied upon the decision in Habu v. State of Rajasthan, AIR 1987 Raj 83, wherein a full bench of the Rajasthan High Court held that power to recall is different from power of altering or reviewing the judgment. Further, in Pushpangathan v. State of Kerala, 2015 (3) KLT 105, the Kerala High Court held that Section 362, Cr.P.C does not affect the power of High Court under Section 482, Cr.P.C. to recall a judgment or order, if legal grounds are properly established by the party complaining.

The Court ruled that an order obtained by fraud cannot be allowed to subsist as it would amount to perpetrating a gross illegality. Even otherwise, the High Court, as a Court of record, has inherent power to correct the record. Further, as a Court of record, it has a duty to keep its records correctly and in accordance with law.

Further, it was held that in case any apparent error is noticed by the High Court or brought to its notice in respect of any orders passed by it, the High Court has not only the power but a duty to correct it. This is a plenary power of the High Court being a superior Court and a Court of record. For supporting the above proposition, the Court relied upon the judgment of Punjab and Haryana High Court in Sher Mohd. Khan v. Madan Lal & Anr., 2013 (4) RCR (Criminal) 5.

Accordingly, the Court proceeded on to observe,

"Therefore, this Court is unable to persuade itself to believe that it was a bona fide error on the part of the accused persons to miscalculate the date, rather, having regard to all the facts and circumstances noted hereinabove, it becomes more than evident that they had done so deliberately in order to obtain a favourable order. This is nothing but playing fraud on the Court. It goes without saying that but for such deliberate mis-presentation this Court would not have passed the order in question."

Consequently, the Court observed that the order in question was passed exercising power under Section 482 of the Code which is indisputably, a plenary power. Therefore, once it comes to light that the party concerned was not entitled to the order passed in its favor, which is nothing but an abuse of the process of Court, it would be perfectly legal as also justified in invoking the very same power under Section 482 of the Code so as to prevent such abuse and to secure the ends of justice. Accordingly, the said order was recalled.

Case Title: Siba Bisoi & Ors. v. State of Odisha

Case No.: I.A. No. 2162 of 2021 (Arising out of CRLMC No. 2123 of 2021)

Judgment Dated: 15 March 2022

Coram: Justice Sashikanta Mishra

Counsel for the Petitioners: M/s. Jugal Kishore Panda, S.S. Dash, B. Karna & A.P. Dash, Advocates

Counsel for the Respondent: Mr. S.K. Mishra, Addl. Standing Counsel

Citation: 2022 LiveLaw (Ori) 30