Research › Search › Judgment

Andhra High Court · body

2006 DIGILAW 1353 (AP)

Vijaya Sri v. State Of A. P.

2006-11-02

GOPALA KRISHNA TAMADA

body2006
. C O M M O N O R D E R CrI.M.P.No.2821 of 2006 is filed to condone the delay of 31 days in filing CrI.M.P.(SR) No.15718 of 2006, a petition under Section 482 of the Code of Criminal Procedure, 1973 to re-call the order dated 21-06-2006 passed in CrI.P.No.1808 of 2005 by this Court. 2. In view of the relief sought for in these two petitions, they are being disposed of by this common order. 3. The facts that emerge for filing of these petitions are: The petitioner herein is A-7 in Crime No.32 of 2004, which was registered for the offence punishable under Section 498-A of the Indian Penal Code, 1860 and Sections 3 and 4 of the Dowry Prohibition Act, 1961. The petitioner filed CrI.P.No.1808 of 2005 before this Court under Section 482 of the Code seeking to quash the proceedings against her in the said Crime. As there was no representation on behalf of the petitioner, this Court dismissed the criminal petition on 21-06-2006 for non-prosecution. Assailing the said order, the petitioner has come up with the instant petitions: one to condone the delay and the other to recall the order dated 21-06-2006 passed by this Court. 4.Heard Sri Ramabramham, learned Counsel for the petitioner, learned Additional Public Prosecutor and perused the material on record. 5. The learned Counsel for the petitioner mainly contended that the order sought to be recalled is an order dismissing the petition of the petitioner for default and if an opportunity is given to the petitioner to prosecute her case, there is every chance of her succeeding. The learned Counsel further contended that though the order impugned is a final order, it being an order of dismissal for non-prosecution of the petitioner the same may be recalled, by exercising the inherent powers conferred under Section 482 of the Code, in order to secure the ends of justice. The learned Counsel has drawn my attention to the meanings of ‘Review’ and `Recall’ in various dictionaries. The learned Counsel in support of his contentions relied on the decisions in MUHAMMAD SADIQ v. EMPEROR(1), in EMPEROR v. SHIVA DATTA(2), and in HABU v. STATE (FB)(3). 6. The learned Counsel has drawn my attention to the meanings of ‘Review’ and `Recall’ in various dictionaries. The learned Counsel in support of his contentions relied on the decisions in MUHAMMAD SADIQ v. EMPEROR(1), in EMPEROR v. SHIVA DATTA(2), and in HABU v. STATE (FB)(3). 6. On the other hand, the learned Additional Public Prosecutor while opposing the contentions raised on behalf of the learned Counsel for the petitioner, contended that though the order impugned is an order dismissing the petition for default of the petitioner, for all practical purposes, it is a final order and that when there is a specific bar provided under Section 362 of the Code to the effect that a judgment or final order shall not be reviewed or recalled, the petition filed by the petitioner under Section 482 of the Code is not maintainable. 7. In view of the rival contentions raised on either side, the moot point that arises for consideration is whether the order impugned can be recalled. 8. In order to appreciate the point in issue in a better and proper perspective, first it is pertinent to refer the provisions of Sections 362 and 482 of the Code and then the meanings of ‘Recall’ and ‘Review’. 9. Section 362 of the Code reads as under- “362. Court not to alter judgment: — 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.” 10.Section 482 of the Code reads as under- “482. Saving of inherent powers of High Court: -Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” (Emphasis is mine). 11. 11. As per the Black Dictionary, the words ‘recall a judgment’ means to revoke, or reverse a judgment for matters of fact; when it is annulled by reason of errors of law, it is said to be “reversed”, whereas the word ‘review’ means to examine judicially, a reconsideration, second view or examination, revision, consideration for purposes of correction and used especially of the examination of a cause by an appellate Court, and of a second investigation. As per the Law Lexicon, the word ‘Review’ means a fresh view of matters already examined and an act of loading, offer something again with a view to correction or improvement. As per Agarwala’s Legal Dictionary, the word ‘Review’ means the process under which a Court in certain circumstances can reconsider its own judgment, a general survey or re-examination, a retrospective survey of past actions etc. (Or47,CPC). As per the Pitman Dictionary of English Shorthand, the word ‘recall’ means a calling back, to call back, to revoke, to bring back to memory, whereas the word ‘review’ means a looking back, retrospect, a critical examination, an inspection, a written criticism, to view again. 12. From a cumulative reading of the meanings given to the words ‘Review and Recall’ by the various dictionaries and the provisions of Sections 362 and 482 of the Code, it can be deduced that ‘recall’ is complete abrogation of a judgment or a final order, whereas ‘review’ presupposes continuance of initial judgment or final order with some changes or re-examination and reconsideration of the judgment or final order. So, the power of recalling is different than the power of reviewing the judgment or final order. 13.Now the point is what are the circumstances under which an order can be recalled. 14.In HABU’S case (3 supra), at paragraph Nos.38 and 39, a Full Bench of Rajasthan High Court observed as follows- “38. There are two views available on the point. According to one view S.362 Cr.P.C, has been held to be mandatory and puts complete bar and it has been therefore, held that S.482 Cr.P.C. can also not be invoked for the purposes of reviewing or altering the judgment. The other view is that re-calling is different than reviewing and altering and if the Court is of the opinion that gross injustice has been done, then S.482 Cr.P.C. should be invoked to re-call the judgment and re-hear the case. The other view is that re-calling is different than reviewing and altering and if the Court is of the opinion that gross injustice has been done, then S.482 Cr.P.C. should be invoked to re-call the judgment and re-hear the case. In fact the earlier view has impliedly been done away with by their Lordships of the Supreme Court in Sankatha Singh’s case ( AIR 1962 SC 1208 ) (supra). Their Lordships have held that the appellate Court had no power to review or restore an appeal which has been disposed of lunder Ss.424 and 368 Cr.P.C. (old). Similar was the view taken in State of Orissa V. Ram Chandra, ( AIR 1979 SC 87 ). Sankatha Singh’s case has been refferred to in Sooraj Devi’s case ( AIR 1981 SC 736 (supra) wherein also their Lordships have held that inherent powers cannot be invoked when there is a complete bar. Scope ofS.482 Cr.P.C. was then considered by their Lordships in Manohar Nathu Sao Samarth V. Marot Rao, ( AIR 1979 SC 1084 ) (supra). Thus on one side as mentioned above the principles which have been laid down by their Lordships of the Supreme Court can be summarized as under: - 1. That the powers to deal with the case must flow from the statute. 2. That the powers given under S.362 Cr.P.C. (S.369 Cr.P.C. old) given to the Court for reviewing or altering is limited only for correcting an arithmetical or clerical error and specifically prohibits Courts from touching the judgment by taking away the powers altering or reviewing the judgment or the final order and as such principle of functus officio has been accepted. 3. That the prohibition contained in S.362 Cr.P.C. (S.369 Cr.P.C. old) is not only restricted to the trial Court but also extends to appellate Court or the revisional Court. 4. That the inherent powers of the Court cannot be invoked where there is an express prohibition and in order words S.482 Cr.P.C. cannot be invoked.” 39. 3. That the prohibition contained in S.362 Cr.P.C. (S.369 Cr.P.C. old) is not only restricted to the trial Court but also extends to appellate Court or the revisional Court. 4. That the inherent powers of the Court cannot be invoked where there is an express prohibition and in order words S.482 Cr.P.C. cannot be invoked.” 39. As against this the analogical deduction which comes out from another set of cases is (i) Right of the accused to be heard is his valuable right which cannot be taken away by any provision of law, (ii) If the accused has not been given an opportunity of being heard or is not provided with the counsel when not duly represented it will be violative of principles of natural justice as well as Art.21 of the Constitution, (iii) That to provide defence counsel in case the accused is not in a position to engage is fundamental duty of the State and has throughout been recognized and now incorporated in S.304 Cr.P.C. and in Art.39A of the Constitution, (iv)That bar of review or alter is different than the power of re-call, (v) That inherent powers given under S.482 Cr.P.C. (S.561-A Cr.P.C. old) are wide enough to cover any type of cases if three conditions mentioned therein so warrant, namely (a) for the purpose of giving effect to any order passed under the Code of Criminal Procedure; (b) for the purposes of preventing the abuse of the process of any Court; and (c) for securing the ends of justice. (vi)The principle of audi alteram partem shall be violated if right of hearing is taken away. (vii) That when the judgment is re-called it is a complete obliteration/abrogation of the earlier judgment and the appeal or the revision, as the case may be, has to be heard and decided afresh, (viii) That a Court subordinate to High Court cannot exercise the inherent powers and the Code restricts it to the High Court alone. (ix) That no fixed parameters can be fixed and hard and fast rule also cannot be laid down and Court in appropriate cases where it is specified that one of the three conditions of S.482 Cr.P.C. are attracted should interfere. 15. (ix) That no fixed parameters can be fixed and hard and fast rule also cannot be laid down and Court in appropriate cases where it is specified that one of the three conditions of S.482 Cr.P.C. are attracted should interfere. 15. In Muhammad Sadiq’s case (1 supra), it was held as follows: “Where an appeal has been dismissed without the appellant or his pleader being given a reasonable opportunity of being heard in support of the same, the order dismissing the appeal must be held to have been passed without jurisdiction and the Court has inherent power to make an order that the appeal should be reheard after giving the appellate or his counsel a reasonable opportunity of being heard in support of the same. 16. In Emperor’s case (2 supra), it was held as follows: “A preliminary objection has been raised before me by the learned Government Pleader that this Court is not competent to entertain this petition under S.561-A in view of the provisions of S.369, Criminal P.C. To rebut this contention the learned counsel for Shiva Dat, accused invites my attention to a ruling of the Lahore High Court reported in Mathra Das V. Emperor AIR 1927 Lahore 139, in which Broadway, J., held that S.561-A, Criminal P.C. is in no way limited or governed by S.369 of the same Code and that the High Court had power to reconsider the question of sentence when the ends of justice required it. In the present case the learned counsel for Shiva Dat frankly admits that owing to his own carelessness in not appearing in Court at the time when the original reference was called on for hearing, his client’s case went unrepresented and an ex-parte order was passed. In the present case the learned counsel for Shiva Dat frankly admits that owing to his own carelessness in not appearing in Court at the time when the original reference was called on for hearing, his client’s case went unrepresented and an ex-parte order was passed. It seems to me that the new provision, 561-A, Criminal P.C., which has been added to the Code of Criminal Procedure by the Criminal Procedure Amendment Act No.18, 1923, does authorize the High Court to make any order as may be necessary to secure the ends of justice or to prevent abuse of the process of any Court and to give effect to any order under this Code, and that this power has been conferred upon the High Courts in India notwithstanding the limitations contained in S.369, Criminal P.C. I therefore hold that this Court has jurisdiction to entertain the present application if, in its discretion, it considers it necessary to do so in order to secure the ends of justice. 17. In the instant case, on the day when the criminal petition in question was called, even though it was specially listed under the caption “for stayed mattes”, none represented the matter and as such this Court dismissed the criminal petition for non-prosecution. As already stated though the order impugned is a final order, it was passed for default of the petitioner. In fact, the learned Counsel, who is appearing on behalf of the petitioner, has filed his sworn affidavits in support of the petitions stating the reasons for not attending the Court on the day when the order in question was passed. The sound judicial view would be that reasonable opportunity of being heard must be provided to each party. Further, right of hearing a case is very important and no party should be deprived of such liberty. In order to invoke the inherent powers of this Court there are three conditions prevalent under Section 482 of the Code. As per the third limb or condition of Section 482 of the Code i.e., to secure the ends of justice, this Court can exercise its inherent powers. In order to invoke the inherent powers of this Court there are three conditions prevalent under Section 482 of the Code. As per the third limb or condition of Section 482 of the Code i.e., to secure the ends of justice, this Court can exercise its inherent powers. Having regard to these circumstances and in order to secure the ends of justice, this Court is of the view that it is a fit case where this Court can exercise its inherent powers conferred under Section 482 of the Code, to recall the order dated 21-06-2006 passed in Crl.P.No.1808 of 2005, to enable the learned Counsel for the petitioner to advance his arguments on the main case. 18. In the result, both the petitions are allowed and order dated 21-06-2006 passed in Crl.P.No.1808 of 2005 is hereby recalled. --X—