HC Can Recall Orders By Invoking Section 482 CrPC If Legal Grounds Exists: Kerala HC [Read Order]

The Kerala High Court has observed that an order passed by the High Court in criminal jurisdiction can be recalled by invoking the powers under Section 482 Cr.P.C, if legal grounds are properly established by the party.

Justice PV Kunhikrishnan observed thus while recalling a bail order on the ground that the defacto complainant was not heard and his application for impleadment is pending at the time of disposal of the bail application. The defacto complainant had filed an application seeking recall of the order, contending that even though an application was filed by him in the above bail application for impleading, without showing his name in the cause list, the bail application was posted for hearing before the court and the bail application was allowed.

The court referred to some earlier judgments [Robin v. State of Kerala and another [2018 KHC 158] Pushpangathan v. State of Kerala [2015(3) KLT 105]] which discusses the difference between recall, review and/or alteration. It noted that when an order is recalled, the whole thing is abrogated and the parties are relegated to the original position i.e., to the stage anterior to passing any judgment or final order in the matter.  The Court said:

"In the light of the above judgments, it is clear that an order passed by this Court in criminal jurisdiction can be recalled by invoking the powers under Section 482 Cr.P.C, if legal grounds are properly established by the party. It is also clear that, if an order is passed without hearing the party, during the hearing process, not due to his fault, it amounts to violation of principles of natural justice. In such circumstances also this Court can recall the order."

Difference Between Recall and Cancellation Of Bail Order

The Court also observed that recalling an order will not amount to cancellation of the bail order.

"Cancellation of a bail order is possible only after hearing the counsel and hearing the case on merit. But for recalling the order passed under Section 438 Cr.P.C, there is no consideration of the case on merit. This Court is recalling this order, because the petitioner/defacto complainant was not heard and his application for impleadment is pending at the time of disposal of the bail application. In such circumstances, recalling an order will not amounts to cancellation of the bail order. A bail order passed by this Court cannot be cancelled under Section 482 Cr.P.C. There are provisions under Criminal Procedure Code to cancel a bail order. In this case, this Court is exercising the jurisdiction under Section 482 Cr.P.C to recall the order passed under Section 438 Cr.P.C for the simple reason that, the affected party is not heard."

"Alteration or review of an order granted under Section 438 Cr.P.C is not possible in the light of Section 362 Cr.P.C. But recalling an order passed under Section 438 Cr.P.C is possible, if the order is happened to be passed without hearing a necessary party. When an order is recalled, the whole thing is abrogated and the parties are relegated to the original position i.e., to the stage anterior to passing any judgment or final order in the matter. Exercise undertaken in a review/alteration is to closely examine the order to be reviewed so as to find out any illegality or impropriety in it. For doing so, existence of the order or judgment must be recognised. When a judgment or final order is recalled for valid reasons, the resultant legal effect is that, the order itself is abrogated and the parties will be relegated to a position that existed at the commencement of the proceedings. Therefore, the "order recalling a bail order" is entirely different from "an order of cancellation of bail". This Court cannot cancel the bail order under Section 482 Cr.P.C. This Court can entertain an application under Section 482 Cr.P.C to cancel an order passed under Section 438 Cr.P.C by a Sessions Court. In such situation, this Court will definitely will look in to the correctness of the order on merit. Such an exercise cannot be done, when the order passed under Section 438 Cr.P.C, is by this Court itself." 

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