Mansimran Kaur

Mumbai, April 26, 2022: Observing that the applicant seeking recall of the order was not an aggrieved party, the Bombay High Court has opined that the Court would be justified in recalling the order ex debito justice, if an adverse order was passed against an affected party who was entitled to be heard due to inadvertence or otherwise.

The Bench of Justice N.J. Jamadar dismissed the present application by observing that the applicant cannot ask for review or recall of the impugned order as he was not the aggrieved party in the impugned order whereby the Court expunged the observations made by the ACMM (Additional Chief Metropolitan Magistrate). It was also stated that even if the observations made by the ACMM were restored after a decade, it would be nothing but just a historical fact. 

The application in the present case was preferred for seeking recall of the order dated April 27, 2012 passed by this Court, whereby this Court had expunged the observations made by the ACMM in a bail application concerning the applicant and the third respondent. 

Brief facts of the case were that applicant and the third respondent with one Vipual Desail were arraigned for the offences punishable under Sections 120B, 406, 409 and 420 of the Indian Penal Code, 1860. The applicant and the third respondent were engaged in the business of investing surplus fund of employees provident fund in Government Securities. The indictment against Vipul Deasi, the applicant and the third respondent was that in pursuance of the criminal conspiracy applicant and third respondent no invested surplus of the employees provident fund in Government and corporate debt securities at prices that were inflated by Vipul Desai as compared to the actual market value and dishonestly shared the inflated amount. Due to this incident, the appellant and the third respondent were arrested. However, by an order dated March 5, 2012 they were released on bail subject to certain conditions. The ACMM while pursuing the bail application made certain observations concerning the acts of omission and commission and the flawed conduct of the trustees of the Provident Fund Trust. 

Thereafter the original complainant- first respondent instituted Criminal Appeal before this Court assailing the order passed by the ACMM. The respondent also sought to expunge certain observations made by the ACCM in the impugned order. This Court by an order dated April 27,  2012 directed that the remarks which were extracted in the order stood expunged. The applicant assailed the same by way of an application stating that the applicant and third respondent were impleaded as party respondents in the Criminal Petition instituted by the original complainant, however neither the complainant gave any notice concerning the institution of the said application nor the Court informed the applicant and the third respondent and, therefore expunging the observation of the ACMM was bad in the eyes of the law. 

In view of the same, an affidavit-in reply was filed by the respondent opposing the maintainability of the application. It was contended by the first respondent that the Criminal Court lacks the authority to recall or review its order, once the judgment is delivered. It was also stated that the gap period of more than eight years further vitiated the maintainability of the application. 

One of the issues before this Court was whether the Criminal Court was barred under the provisions mentioned under Section 362 of Cr.P.C to  review its own order after the passing of the judgement.

To buttress his submissions, the Counsel for the applicant cited a judgment of the Supreme Court in Asit Kumar Kar vs. State of West Bengal and ors. wherein a stark distinction was made between a petition filed under Article 32 , a review petition and a recall petition. It was opined therein that in a recall petition, the Court does not deal with the merits but simply recalls an order which was passed without giving an opportunity of hearing to the affected party. 

On the contrary, the Counsel for the respondent relied on a Supreme Court case of State of Madhya Pradesh vs. Man Singh wherein it was held that the High Court has no jurisdiction to review its order either under Section 362 or under Section 482 of the Code. The inherent power under Section 482 cannot be used by the High Court to reopen or alter an order disposing of a petition decided on merits.

After considering the submissions of the rival parties, this Court observed “…the provisions of Section 362 of the Code preclude a Court from altering or reviewing the judgement or a final order or disposing a case except to correct a clerical or arithmetical error. At the same time, the High Court being a Court of record and having plenary jurisdiction cannot be denuded of the authority to recall an order if it is satisfied that such order was passed without providing an effective opportunity of hearing, so as to prevent the miscarriage of justice. The matter cannot be looked at from a semantics perspective of the use of the expression, “recall” or “review” .”

The next relevant question that the Court dealt with was whether the applicant and the third respondent could be said to be aggrieved by the impugned order.

According to the Bench what weighed this Court to expunge the observations in its impugned order made by the ACMM were based on the the twin factors. First, observations made by the ACMM were not necessary for deciding the entitlement of the applicant and third respondent to bail. Second, the observations did cast stigma on the applicant bank without the applicant’s trustees being given an opportunity of being heard. Both the grounds were held to be worthy of sustaining the order of expunging the remarks.

The Court further asserted that while deciding bail application the Court may reflect upon the acts and conduct of the prosecution and/or complainant/witnesses. However, the said exercise is undertaken to evaluate the entitlement of the applicant for bail. If the observations transgress the scope of consideration for bail and fall in the realm of opining about the guilt or otherwise of the persons, who are not parties to the said proceedings, the observations fall foul of the principle that nobody should be condemned unheard.

Thus, it was observed that by the Court that the applicant and third respondent were not the aggrieved parties in the instant application. Therefore, the application was dismissed.

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