Section 362 CrPC - Application Seeking Recall Of An Order Maintainable When It Seeks Only A Procedural Review: Supreme Court

The Supreme Court observed that the bar under Section 362 of Criminal Procedure Code does not apply to an application seeking a procedural review.

The bench comprising Justices Sanjiv Khanna and Bela M. Trivedi observed thus while upholding an order passed by the Madhya Pradesh High Court which recalled an order passed in a criminal case.

In this case, the accused filed a petition under section 482 of the Code of Criminal Procedure before the High Court contending that there has been a compromise between him and the defacto complainant. This petition was allowed by the High Court.  The de-facto complaint, thereafter preferred an application for recall of the order contending that it was passed in his absence, and based on false information. The High Court, allowed the said application, and recalled the earlier order.

Before the Apex Court, the appellant relied on Section 362 CrPC which reads as follows: Save as otherwise provided by this Code or by any other law for the time being in force, 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.

"This application for recall of the order was maintainable as it was an application seeking a procedural review, and not a substantive review to which Section 362 of the Code of Criminal Procedure, 1973, would be attracted.", the Apex Court bench said while dismissing the Special Leave Petition filed by the accused. In this regard, the court referred to Grindlays Bank Ltd. v. Central Government Industrial Tribunal & Ors. 1980 (supp) SCC 420.

In Grindlays Bank (supra), the court had observed thus: The expression 'review' is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershi's case held that no review lies on merits unless a status specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal.

The court also referred to a judgment in Budhia Swain and Others v. Gopinath Deb (1999) 4 SCC 396 which discusses the difference between recall and review and when an order of recall can be passed.

The High Court was therefore right in recalling the order and listing the case for hearing and decision on merits, the court said.

Headnotes

Code of Criminal Procedure, 1973 ; Section 362 -  Application for recall of the order maintainable when it is an application seeking a procedural review, and not a substantive review.

Summary: Appeal against High Court order which recalled an order passed by it in a criminal case - Dismissed - This application for recall of the order was maintainable as it was an application seeking a procedural review, and not a substantive review.

Case details

Ganesh Patel vs Umakant Rajoria |  2022 LiveLaw (SC) 283 | S.L.P. (CRL.) NO. 9313 OF 2021 | 7 March 2022

Coram: Justices Sanjiv Khanna and Bela M. Trivedi