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2022 DIGILAW 446 (TS)

Sunkam Shankaraiah v. State of A. P.

2022-07-08

M.LAXMAN

body2022
JUDGMENT : M. Laxman, J. 1. These revisions were previously heard and disposed of by Sri Justice P. Keshava Rao (expired) by mere endorsement of result on the docket proceedings. In effect, there were no detailed reasoned orders. Therefore, they are specially posted before this Court, as per the orders of the Hon'ble the Chief Justice vide orders dated 01.12.2021, for passing necessary orders. 2. The facts leading to placing the present revisions before this Court are that the said learned single Judge had passed separate mere docket orders either allowing or dismissing the revisions postponing the reasoned orders. Unfortunately, before reasoned orders are passed in all the revisions in support of his conclusions for the final decision, the said Judge died. In effect, these revisions are not containing any reasons for his conclusions with regard to final result of the cases and the mere docket proceedings are available pronouncing the result portion of the cases either allowing or dismissing the cases. Under these circumstances, all these revisions are placed before me. 3. This Court heard the counsel for the revision petitioners, the Public Prosecutor and other counsel representing unofficial respondents on the question whether cryptic orders i.e., endorsements of result on docket proceedings either dismissing or allowing the revisions postponing reasons and thereafter no reasoned orders were passed since said Judge died, suffer from nullity. If such orders suffer from nullity, whether this Court is having jurisdiction to either review or recall such orders. 4. The contentions from the counsel representing the revision petitioners are that though the orders were pronounced by the said learned single Judge without any reasons, they are valid in law. Even if such orders are not valid orders as per the provisions of the Criminal Procedure Code, 1973 (for short, the Code) since such orders do not contain the contents of the judgment/final orders as required under law, such orders cannot be either reviewed or recalled since this Court has no power of review. Such powers under Section 482 of the Code cannot also be exercised in the light of the specific bar contained under the Code i.e., Section 362 of the Code with regard to alteration, recall or modification of the judgment or final order passed by the criminal Court. 5. Such powers under Section 482 of the Code cannot also be exercised in the light of the specific bar contained under the Code i.e., Section 362 of the Code with regard to alteration, recall or modification of the judgment or final order passed by the criminal Court. 5. The learned Public Prosecutor has contended that the docket orders, which were passed in all these criminal revisions either simply allowing or dismissing, are not the judgments or final orders, as per the provisions of the Code. According to him, the final orders or judgments shall consist of points for determination, the decision on the points and the reasons for such decision. The said necessary ingredients are lacking in the present cases. Therefore, such orders pronouncing the final result of the cases are not final orders or judgments in terms of the settled principles of law with regard to contents of final orders or judgments. According to him, such orders are nullity on account of unaccompanied reasons and violation of due process of law. Therefore, once the orders are nullity, this Court has power either to review or recall such orders which violate the basic principles of due process of law. 6. It is also his contention that when there is gross procedural violation which makes the orders nullity, and when such orders are to be recalled not on merits, this Court can exercise the power of recall or review irrespective of the prohibition contained under Section 362 of the Code. He further contended that every Court has inherent power to recall the orders which are nullity and such orders are result of procedural lapses. Therefore, he finally contended that inherent power can be exercised by this Court to review or recall the orders passed in the present revision cases. 7. In the light of the said contentions, this Court has to see whether the orders which are passed by docket proceedings constitute valid Unal orders or judgments in a general sense. If not so, what is the resultant effect of such orders. If such orders are found to be nullity, whether this Court can exercise power of either recall or review in the absence of any statutory provision expressly conferring such a power on this Court either to recall or review such orders in the light of prohibition contained under Section 362 of the Code. 8. If such orders are found to be nullity, whether this Court can exercise power of either recall or review in the absence of any statutory provision expressly conferring such a power on this Court either to recall or review such orders in the light of prohibition contained under Section 362 of the Code. 8. To deal with such contentions, first of all. it is appropriate to refer to Section 354 of the Code which reads as under: "354. Language and contents of judgment:- (1) Except as otherwise expressly provided by this Code, every judgment referred to in Section 353,- (a) shall be written in the language of the Court; (b) shall contain the point or points for determination, the decision thereon and the reasons for the decision; (c) shah specify the offence (if any) of which, and the Section of the Indian Penal Code (45 of 1860) or other law under which, the accused is convicted and the punishment to which he is sentenced; (d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty. (2) When the conviction is under the Indian Penal Code (45 of 1860), and it is doubtful under which of two sections, or under which of two pans of the same section, of that Code the offence falls, the Court shall distinctly express the same, and pass judgment in the alternative. (3) When the conviction is for an offence punishable with death or. in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded. and, in the case of sentence of death, the special reasons for such sentence. (4) When the conviction is for an offence punishable with imprisonment for a term of one year or more, but the Court imposes a sentence of imprisonment for a term of less than three months, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till the rising of the Court or unless the case was tried summarily under the provisions of this Code. (5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. (5) When any person is sentenced to death, the sentence shall direct that he be hanged by the neck till he is dead. (6) Every order under Section 117 or sub-section (2) of Section 138 and every final order made under Section 125, Section 145 or Section 147 shall contain the point or points for determination, the decision thereon and the reasons for the decision.'" 9. A reading of clause (b) of sub-section (1) of Section 354 of the Code shows that every judgment must contain points for determination, the decision thereon and the reasons for such decision. 10. A contention was advanced by one of the counsel representing the revision petitioners i.e., Mr. Anand Kumar Kapoor that the provisions contained under Chapter XXVII of the Code are inapplicable to the final orders or judgments passed by the High Court. In contending so, he relied upon Section 387 of the Code which reads as under: '387. Judgments of subordinate Appellate Court:- The rules contained in Chapter XXVII as to the judgment of criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment in appeal of a Court of Session of Chief Judicial Magistrate: Provided that, unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered." 11. A reading of the above section, more particularly the proviso to the said section, it is clear that Chapter XXVII as to the judgment of criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment in appeal of a Court of Session or Chief Judicial Magistrate. Whereas, the proviso clearly shows that discretion is given to such a subordinate Appellate Courts whether the presence of the accused is required or not for the proceedings before the appellate Court. 12. Before further proceeding with such contention, it is also required to refer to Section 353 of the Code which reads as under: "353. Judgment. Whereas, the proviso clearly shows that discretion is given to such a subordinate Appellate Courts whether the presence of the accused is required or not for the proceedings before the appellate Court. 12. Before further proceeding with such contention, it is also required to refer to Section 353 of the Code which reads as under: "353. Judgment. (1) The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the Presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders,- (a) by delivering the whole of the judgment; or (b) by reading out the whole of the judgment; or (c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader. (2) Where the judgment is delivered under clause (a) of sub-section (1), the presiding officer shall cause it to be taken down in shorthand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court. (3) Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of sub-section (1). as the case may be, it shall be dated and signed by the presiding officer in open Court, and if it is not written with his own hand, every page of the judgment shall be signed by him. (4) Where the judgment is pronounced in the manner specified in clause (c) of sub-section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost. (5) If the accused is in custody, he shall be brought up to hear the judgment pronounced. (4) Where the judgment is pronounced in the manner specified in clause (c) of sub-section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost. (5) If the accused is in custody, he shall be brought up to hear the judgment pronounced. (6) If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted: Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence. (7) No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place. (8) Nothing in this section shall be construed to limit in any way the extent of the provisions of Section 465." 13. A reading of sub-sections (5) to (7) shows that before the original Court, at the time of pronouncement of judgment, if the accused person is in custody, he should be produced to hear the judgment, and if he is not in custody, he is required to attend the Court to hear the judgment. If there are several accused and one or more are absent, the Court can proceed to pronounce the judgment and such a pronouncement does not suffer from any irregularity. The non-applicability of Chapter XXVII of the Code to the proceedings before this Court is in the context of requirement of presence of accused for hearing the judgment and not to the general principle relating to requirement of contents of a judgment or final order. 14. The non-applicability of Chapter XXVII of the Code to the proceedings before this Court is in the context of requirement of presence of accused for hearing the judgment and not to the general principle relating to requirement of contents of a judgment or final order. 14. It is the cardinal principle of law that in every judgment or final order, the basic requirements are the facts in dispute., points for determination and the decision of the Court on such points or issues and the reasons for such decision. These are the basis ingredients of any judgment or final order. 15. The objects behind the insistence of reasons are that the party to the litigation must able to know what was the reason for such a decision which prevailed upon the judge to take particular view of the issue or point in determination. Further object is that the higher Court must able to know the reasons for decision so as to either confirm or set aside such final orders. In the present case, these requirements are not been established. Therefore, this Court feels that the requirements and contents of judgment/final order in general sense are absent in the orders which are pronounced in the present revision cases. 16. A reading of Section 353(1) and other sub-clauses of the Code, it is clear that a judgment or a final order has to be pronounced, by delivering the whole of the judgment or by reading out the whole of the judgment or by reading out the operative portion of the judgment. The first mode of delivery of whole of the judgment arises in a situation where the Court itself in an open Court dictates the judgment or final order in the presence of parties or their counsel. The second and third modes arise where the Court reserves the judgment, and after the judgment is dictated and typed, such a judgment can be pronounced in the open Court by reading out whole of the judgment or reading out only operative portion of the judgment. After such pronouncement, each page of such judgment has to be signed. 17. From the above said procedure, what is indicated is that the judgments/final orders must contain not only the resultant portion, but also must contain all the requirements of a final order/judgment including reasons. In the present case, such things are lacking. 18. After such pronouncement, each page of such judgment has to be signed. 17. From the above said procedure, what is indicated is that the judgments/final orders must contain not only the resultant portion, but also must contain all the requirements of a final order/judgment including reasons. In the present case, such things are lacking. 18. The Apex Court, in Indrajeet Yadav v. Santosh Singh AIR 2022 SC 1941 , had an occasion to deal with the pronouncement of orders similar to the present cases, and the Apex Court deprecated the practice of pronouncing the result portion in advance before full judgment is dictated and consequently, such orders have been set aside. However, such practice was recognized to exist in the Apex Court also, which was held to be justified, for the reason that such orders are not amenable to further judicial review by superior court. However, the Apex Court deprecated the practice of High Courts in pronouncing the resultant portion in advance postponing the dictation of full text of final orders containing the points in issue, decision on such points and reasons for such decision. 19. The next question is whether such orders, which are similar nature to the orders in the present revisions, constitute nullity orders or mere irregular orders. 20. The consistent view of the Apex Court and other High Courts is that if the orders are passed by any Court without a notice to the affected party or by lack of inherent jurisdiction, they are void and nullity orders. 21. In the present case, the situation is somewhat different. The principles of natural justice with regard to hearing the parties were complied with since the resultant portion in all these cases are pronounced after hearing the counsel for the revision petitioners and the Public Prosecutor. Therefore, the principles of natural justice with regard to hearing the affected party are complied with. It is not the case of any one that this Court inherently lacks jurisdiction to deal with the revisions The facts in the present cases demonstrate that the final results were pronounced and signed, but postponed the assignment of reasons and unfortunately, before reasons are assigned so as to constitute composite judgments or final orders, the said learned Judge died due to ailment. 22. Now the question is whether any order or judgment passed without reasons constitutes a nullity. 22. Now the question is whether any order or judgment passed without reasons constitutes a nullity. It must be mentioned here that the reasons are foundational principles of due process of law. The American concept of due process of law is enshrined in Article 21 of the Constitution of India. 23. The Apex Court, in A.R. Antulay v. R.S. Nayak 1988 (2) SCC 602 , had an occasion to deal with the effect of orders passed either without issuing notice or in violation of principles of natural justice and in violation of fundamental rights of a person in passing orders. In the said case, the Constitutional Bench held that the orders passed in contravention of any of the fundamental rights or in violation of principles of natural justice are nullity orders. 24. It is also apt to refer to the decision of the Apex Court in Kranti Associates Pvt. Ltd. v. Masood Ahmed Khan (2010) 9 SCC 496, wherein it has been held as under: "24. In Siemens Engineering and Manufacturing Co. of India Ltd. v. The Union of India and Anr. AIR 1976 SC 1785 , this Court held that it is far too well settled that an authority in making an order in exercise of its quasi-judicial function, must record reasons in support of the order it makes. The learned Judges emphatically said that every quasi- judicial order must be supported by reasons. The rule requiring reasons in support of a quasi- judicial order is, this Court held, as basic as following the principles of natural justice. And the rule must be observed in its proper spirit. A mere pretence of compliance would not satisfy the requirement of law (See para 6 page 1789). 25. In Smt. Maneka Gandhi v. Union of India and Ant. AIR 1978 SC 597 , which is a decision of great jurisprudence significance in our Constitutional law, Chief Justice Beg, in a concurring but different opinion held that an order impounding a passport is a quasi-judicial decision (Para 34, page 612). The learned Chief Justice also held when an administrative action involving any deprivation of or restriction on fundamental rights is taken, the authorities must see that justice is not only done but manifestly appears to be done as well. This principle would obviously demand disclosure of reasons for the decision. 34. The learned Chief Justice also held when an administrative action involving any deprivation of or restriction on fundamental rights is taken, the authorities must see that justice is not only done but manifestly appears to be done as well. This principle would obviously demand disclosure of reasons for the decision. 34. In Maharashtra State Board of Secondary and Higher Secondary Education v. K.S. Gandhi and Ors, this Court held that even in domestic enquiry if the facts are not in dispute non-recording of reason may not be violative of the principles of natural justice but where facts are disputed necessarily the authority or the enquiry officer, on consideration of the materials on record, should record reasons in support of the conclusion reached (see para 22, pages 738-739) 47. Summarizing the above discussion, this Court holds: a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially. b. A quasi-judicial authority must record reasons in support of its conclusions. C. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well. d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations. f. Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies. g. Reasons facilitate the process of judicial review by superior Courts. h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of justice. i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system. j. Insistence on reason is a requirement for both judicial accountability and transparency. k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of instrumentalism. l. Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or 'rubber-stamp reasons' is not to be equated with a valid decision making process. m. It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya v. University of Oxford 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions". o. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of 'Due Process'. 25. A reading of the above judgment would clearly indicate that the reasons have virtually become indispensable component of a decision making process just like observing principles of natural justice by any judicial or quasi-judicial and even by administrative bodies. The reasons facilitate the process of judicial review by superior Courts. It also gives a transparency to the decision process, and if there is absence of any reasons, it is not in tune with the principle of due process. The principle of due process is enshrined in our Constitution in the form of procedure established by law under Article 21 of the Constitution of India. 26. It also gives a transparency to the decision process, and if there is absence of any reasons, it is not in tune with the principle of due process. The principle of due process is enshrined in our Constitution in the form of procedure established by law under Article 21 of the Constitution of India. 26. In the present cases, the reasons for the decision are absent which are essential. Ultimately, even these orders are challenged before the Apex Court, they would be set aside for the simple ground that no reasons are given and must be remanded back to this Court. 27. For the reasons stated supra, and in the light of the principles laid down by the Apex Court in the supra stated decisions, I am of the view that if any final order or judgment is absolutely lacking reasons, it is an nullity order; however, if the order is having one or other reasons even if they are wrong, it cannot be said that the order is nullity. Therefore, complete absence of reasons like present orders only constitutes nullity order. In the present cases, absolutely no reasons are there. Thus, the orders pronouncing and signing the final result of the cases on the docket proceedings on various dates suffer from nullity. 28. The next question arises is whether such orders can be either reviewed or recalled. In this regard, one of the contentions of the counsel appearing for the revision petitioners is that there is no inherent power to this Court to recall or review the orders even if they are nullity, in the light of the prohibition contained under Section 362 of the Code. 29. To decide the said question, it is apt to refer to Sections 362 and 482 of the Code and they read 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. 482. 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. 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." 30. It is also apt to refer to the original provision of Section 369 (new Section 362) of the Criminal Procedure Code, 1898 and it reads as under: "Section 369:- Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court, by the Letters Patent or other instrument constitute such High Court, no Court, when it has signed its judgment shall alter or review the same, except to correct a clerical error. 31. A comparative reading of original Section 369, which is pari materia with Section 362 of the Code, it contains words 'the High Court by the Letters Patent or other instrument was conferred with the power of altering or reviewing the judgment'. Under the old provision, the High Court can exercise such powers if specifically conferred under letters patent or any other instrument constitute such High Court. Except that part of the wording, the other part of the words of the old section is retained in the new section. This clearly indicates that the words "save as otherwise provided by this Code or by any other law for time being in force" do not create exception to justify exercise of power under Section 482 of the Code. The same view has been taken by the Apex Court in following cases: (i) Amar Nath and Others v. State of Haryana and Another { 1977(4) SCC 137 } (ii) Patel Narshi Thakershi and Others v. Pradyumansinghji Arjunsinghji (iii) Sunitha Jain v. Pawan Kumar Jain (iv) Hari Singh Mann v. Harbhajan Singh Bajwa (v) State of Orissa v. Ram Chander Agarwala (vi) Talab Haji Hussain v. Madhukar Purshottam Mondkar 32. The earliest view with regard to scope of inherent powers of the High Court under old Section 561-A which is the present Section 482 of the Code has come before the Apex Court in case of Talab Haji Hussain v. Madhukar Purshottam Mondkar AIR 1958 SC 376 . The similar issue came before the Apex Court in State of Orissa v. Ram Chander Agarwala and the relevant portion reads as under: "15...It was next submitted that in any event Section 561A is wide enough to include a power of review by the High Court. Section 561A of Criminal Procedure Code runs as follows:- "561 A. Nothing in this Code shall be deemed to limit or effect the inherent power 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". The inherent power of the High Court is restricted to making such orders, as may be necessary, to give effect to any order, under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The scope of the section has been explained. In the two decisions of the Privy Council, which have been uniformly followed by this Court. In Emperor vs. Khwaja Nazir Ahmad the Privy Council, repelling the view that Section 561A of Criminal Procedure Code gave increased powers to the court which it did not possess before that section was enacted, observed, that "it was not so" and proceeded to state: The section gives no new powers, it only provides that those powers which the Court already inherently possess shall be preserved, and is inserted as. Their Lordships think lest it should be considered, that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code and that no inherent power had survived the passing of that Act. Reiterating the same view the Privy Council in Lala Jairam Das and Others v. Emperor (L.R [1945] IndAp 120) observed that Section 561A of the Code confers no new powers. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. Reiterating the same view the Privy Council in Lala Jairam Das and Others v. Emperor (L.R [1945] IndAp 120) observed that Section 561A of the Code confers no new powers. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. This Court in State of Uttar Pradesh v. Mohammad Naim cited with approval the two decisions of the Privy Council referred to above. 16. Section 561A was added to the Code in 1923. It purports to save the inherent powers of the High Court to make such orders as may be necessary to give effect to any order passed under the Code. to prevent abuse of the process of the Court and otherwise to secure the ends of justice. The introduction of the section was because doubts were expressed about the existence of such inherent powers in the High Courts after the passing of the Criminal Procedure Code. By the introduction of the section it was made clear that, the inherent powers of the High Court, for the purposes mentioned in the section, shall not be deemed to be limited or affected by the provisions of the Criminal Procedure Code. Thus, inherent power cannot relate to any of the matters specifically dealt with by the Code. It would follow that inherent powers cannot be invoked to exercise powers which would be inconsistent with any of the specific provisions of the Code. The saving of inherent power is only for giving effect to orders passed under the Code, to prevent abuse of the process of any court or otherwise to secure the ends of justice. 33. A reading of the above judgment clearly shows that by way of amendment brought to the old Code i.e., Criminal Procedure Code, 1923 by way of Section 561 A, it is made clear that the inherent powers which exists with the Court shall not be deemed to be limited or affected by the provisions of the Code. However, such inherent power cannot relate to any of the matters specifically dealt with by the Code. This means, the inherent power cannot be exercised inconsistent with any of the specific provisions of the Code. 34. Admittedly, Section 362 of the Code clearly says that no Court shall, after the judgment is signed, has the power to alter or review the judgment. This means, the inherent power cannot be exercised inconsistent with any of the specific provisions of the Code. 34. Admittedly, Section 362 of the Code clearly says that no Court shall, after the judgment is signed, has the power to alter or review the judgment. It is also not in dispute that there is no clear statutory provision under the Code enabling the Court to review the judgment or final order after it is pronounced. 35. In the light of the above legal provision, now the question arises is when such a power is not there, whether this Court can invoke the power inherently exist with the Court de hors Section 482 of the Code to recall an order which suffers from nullity on account of various reasons like absence of notice, lack of reasons, etc. 36. There are two lines of judgments. The first line is an order which suffers from nullity on account of the reasons stated supra, and in such event, the Court has inherent power to recall such order. This view has been taken in the following judgments of the Apex Court: (i) State of Punjab v. Davinder Pal Singh Bullar (Supreme Court in Crl.Appeal Nos. 753-755/2009), dated 7/12/2011) (ii) Vishnu Agarwal v. State of UP (2011 AIR SCW 1473) (iii) Asit Kumar Kar v. State of West Bengal { 2009 (2) SCC 703 } (iv) Budhia Swain v. Gopinath Deb 37. The other line view which is oldest is that even the orders which suffer from nullity i.e., lack of notice to the affected party, do not give an authority to the Court to recall such orders on account of the Court became functus officio after the judgment is pronounced. In this regard, it is apt to refer to the decision of the Apex Court in Sooraj Devi v. Pyare Lal. 38. The consistent view from all the Courts is that a power of review is a creation of statute and such a power can only be used when there is a specific provision enabling the Court to review or alter final orders or judgments, after they are pronounced. For the first time, a distinction in review has been made by the Apex Court in Grindlays Banks Ltd. v, Central Government Industrial Tribunal 1981 AIR 606. The relevant portion of the said judgment reads as under: "13... For the first time, a distinction in review has been made by the Apex Court in Grindlays Banks Ltd. v, Central Government Industrial Tribunal 1981 AIR 606. The relevant portion of the said judgment reads as under: "13... 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 ( AIR 1970 SC 1273 ) 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." 39. Prior to this judgment, the three Judges Bench of Apex Court in Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji AIR 1970 SC 1273 held as follows: "4... It is well settled that the power to review is not an inherent power. It must be conferred by law either specifically or by necessary implication. No provision in the Act was brought to our notice from which it could be gathered that the Government had power to review its own order. If the Government had no power to review its own order, it is obvious that its delegate could not have reviewed its order..." 40. The Apex Court in Grindlays Bank Ltd.'s case (supra) had an occasion to consider its earlier view that review cannot be done in the absence of specific provision and held that the expression 'review' is used in two distinct senses. The first is that a procedural review which is either inherent or implied in every Court or Tribunal and the second is that review on merits which is a substantive review. In former case, an order can be set aside when such an order is palpably erroneous order passed under a misapprehension by it. The first is that a procedural review which is either inherent or implied in every Court or Tribunal and the second is that review on merits which is a substantive review. In former case, an order can be set aside when such an order is palpably erroneous order passed under a misapprehension by it. Whereas in the later case, an order can be set aside when the error sought to be corrected is one of law and is apparent on the face of the record. Ultimately, the Apex Court held that the ratio laid down in Patel Narshi Thakershi's case (supra) is relating to the review in the nature of second kind. 41. The Apex Court in Sunita Jain v. Pawan Kumar Jain (2008)2 SCC 705 had an occasion to deal with inherent powers of the Court to review/recall the orders by interpreting the words 'save as otherwise provided by this Code' which exists under Section 362 of the Code and held that unless express powers have been conferred under the Code empowering the Court to either review or alter the judgments, no such powers can be exercised by interpreting the words 'save as otherwise provided by this Code' to include inherent powers of High Court under Section 482 of the Code treating as exception. While considering so, the Apex Court has relied upon Patel Narshi Thakershi's case (supra) which was already considered in Grindlays Bank Ltd.'s case (supra) to hold that no review is maintainable in the absence of specific provision. The same view was taken in Hari Singh Mann v. Harbhajan Singh Bajwa AIR 2001 SC 43 . 42. In Sunita Jain's case (supra), the facts disclose that the petition under Section 482 of the Code was filed challenging the criminal proceedings, and such a challenge was made after charges were framed and attained finality. Similarly, in Hari Singh Mann's case (supra) also, the High Court at the initial stage while dealing with the petition under Section 482 of the Code gave certain directions by disposing of the case and subsequently, another application was made to modify such directions. Such a petition was allowed modifying the previous directions without any notice to the affected party. Then the respondent, who was the aggrieved by subsequent orders, filed another petition before the High Court for recall of the orders of modification which were passed without notice. Such a petition was allowed modifying the previous directions without any notice to the affected party. Then the respondent, who was the aggrieved by subsequent orders, filed another petition before the High Court for recall of the orders of modification which were passed without notice. In the said case, the Apex Court quashed both the orders i.e., orders of modification and orders of dismissing the recall. The facts in all the cases where the Apex Court held that inherent powers cannot be used contrary to the specific provision under Section 362 of the Code are relating to review on merits. The distinction which is made in Grindlays Bank Ltd.'s case (supra) with regard to expression of word 'review' has not been taken note of. 43. In Sunita Jain's case (supra), the Apex Court held that the powers under Section 482 of the Code cannot be invoked contrary to the express provision under Section 362 of the Code. 44. The Apex Court in Vishnu Agarwal v. State of U.P. (2011) 14 SCC 813 by relying upon its earlier decision in Asit Kumar Kar v. State of West Bengal (2009) 2 SCC 703 made a distinction between recall and review. The Apex Court held that in a recall petition, the Court does not go into the merits, but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. Whereas, in the review petition, the Court considers on merits, where there is an error apparent on the face of the record. In the said circumstances, the application to recall was held to be maintainable. In the said decision, such a petition has been taken under Article 32 of the Constitution of India. 45. In Budhia Swain v. Gopinath Deb AIR 1909 SCW 1814 the Apex Court had an occasion to deal with an order relating to recall or order in the absence of a statutory provision enabling the Court to recall such order. While considering so, the Apex Court held as follows: "What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank Vs. M/s. Satyam Fibres India Pvt. Ltd. 1996 (5) SCC 550 . While considering so, the Apex Court held as follows: "What is a power to recall? Inherent power to recall its own order vesting in tribunals or courts was noticed in Indian Bank Vs. M/s. Satyam Fibres India Pvt. Ltd. 1996 (5) SCC 550 . Vide para 23, this Court has held that the courts have inherent power to recall and set aside an order (i) obtained by fraud practised upon the Court, (ii) when the Court is misled by a party, or (iii) when the Court itself commits a mistake which prejudices a party. In A.R. Antulay Vs. R.S. Nayak & Anr. AIR 1988 SC 1531 (vide para 130), this Court has noticed motions to set aside judgments being permitted where (i) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all and was shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented, (ii) a judgment was obtained by fraud, (iii) a party has had no notice and a decree was made against him and such party approaches the Court for setting aside the decision ex debito justitiae on proof of the fact that there was no service. 7. In Corpus Juris Secundum (Vol. XIX) under the Chapter "Judgment- Opening and Vacating" (paras. 265 to 284 at pages 487-510) the law on the subject has been stated. The grounds on which the courts may open or vacate their judgments are generally matters which render the judgment void or which are specified in statutes authorising such actions. Invalidity of the judgment of such nature as to render it void is a valid ground for vacating it at least if the invalidity is apparent on the face of the record. Fraud or collusion in obtaining a judgment is a sufficient ground for opening or vacating it. A judgment secured in violation of an agreement not to enter judgment may be vacated on that ground. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings. such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. However, in general, a judgment will not be opened or vacated on grounds which could have been pleaded in the original action. A motion to vacate will not be entered when the proper remedy is by some other proceedings. such as by appeal. The right to vacation of a judgment may be lost by waiver or estoppel. Where a party injured acquiesces in the rendition of the judgment or submits to it, waiver or estoppel results. 8. In our opinion a tribunal or a court may recall an order earlier made by it if (i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. The power to recall a judgment will not be exercised when the ground for re-opening the proceedings or vacating the judgment was available to be pleaded in the original action but was not done or where a proper remedy in some other proceeding such as by way of appeal or revision was available but was not availed. The right to seek vacation of a judgment may be lost by waiver, estoppel or acquiescence. 9. A distinction has to be drawn between lack of jurisdiction and a mere error in exercise of jurisdiction. The former strikes at the very root of the exercise and want of jurisdiction may vitiate the proceedings rendering them and the orders passed therein a nullity. A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. In Hira Lal Patni Vs. Sri Kali Nath AIR 1962 SC 199 , it was held:- "....... A mere error in exercise of jurisdiction does not vitiate the legality and validity of the proceedings and the order passed thereon unless set aside in the manner known to law by laying a challenge subject to the law of limitation. In Hira Lal Patni Vs. Sri Kali Nath AIR 1962 SC 199 , it was held:- "....... The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it." 10. As already noted the appellants sought for review or recall of the order from the O.E.A. Collector solely by alleging that the notice which was required to be published in the locality before settling the land in favour of the respondent no. 1 was not served in accordance with the manner prescribed by law. The appellants did not plead non-service of the notice' but raised objection only with regard to 'the manner of service of the notice'. The High Court had called for and perused the record of the O.E.A. Collector and noted that the notice was issued on 15.12.1963 inviting public objection. The notice was available on record but some of its pages were missing. The O.E.A. Collector had noted in his order dated 23.2.1966 as under:- "It is only due to missing of some pages of the proclamation including the last page over which the report of the process server was there, a scope was available to the objectors to file this petition. Under the above circumstances, it is not necessary to issue another proclamation and entertain further objection since the case is being heard and going to be finalised on 14.3.66." 11. The O.E.A. Collector was satisfied of the notice having been published. Assuming that the notice was not published in the manner contemplated by law. Under the above circumstances, it is not necessary to issue another proclamation and entertain further objection since the case is being heard and going to be finalised on 14.3.66." 11. The O.E.A. Collector was satisfied of the notice having been published. Assuming that the notice was not published in the manner contemplated by law. it will at best be a case of irregularity in the proceedings but certainly not a fact striking at the very jurisdiction of the authority passing the order." 46. A reading of the above judgment would show that on limited grounds, every Court or Tribunal has inherent power to recall the order in the absence of any enabling provision for exercising such power, if (i) the proceedings suffer from inherent lack of jurisdiction and such lack of jurisdiction is patent, (ii) there exists fraud or collusion in obtaining the judgment, (iii) there has been a mistake of the court prejudicing a party or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented. 47. For the first time, the distinction was made by the Apex Court in Grindlays Bank Ltd.'s case (supra) with regard to expression "review" and such distinction which was made in civil cases has been accepted in criminal case also by the Apex Court in Ganesh Patel v. Uma Kant Rajoria 2022 LiveLaw (SC) 283 and held that the Court can exercise the power of procedural review which is not a substantive review. It was further held that substantive review cannot be exercised unless there is a substantive provision for exercising such power. In the said decision, it was held that where an order suffers from procedural illegality like inherent lack of jurisdiction, absence of notice to the affected party, etc., the power of review can be exercised. 48. In the light of the above legal position, no Court shall exercise the power of review on merits which is of substantive nature unless a specific provision is created. Such power even cannot be exercised under Section 482 of the Code, when there is a specific provision under Section 362 of the Code prohibiting alteration or review of the judgment or final order. However, the prohibition contained under Section 362 of the Code is not extended to the cases falling under the procedural review. 49. Such power even cannot be exercised under Section 482 of the Code, when there is a specific provision under Section 362 of the Code prohibiting alteration or review of the judgment or final order. However, the prohibition contained under Section 362 of the Code is not extended to the cases falling under the procedural review. 49. In the present cases, the orders suffer from nullity on account of procedural lapse. The lapse found by this Court is absence of reasons which is in violation of Article 21 of the Constitution of India and the general principles of procedure contained under the Code. Therefore, the orders passed in the present revisions require to be recalled on account of procedural lapse, but not on merits. Therefore, the contention of the learned counsel representing the revision petitioners that this Court has no power to recall the present orders is devoid of merits to the extent of procedural review, however, such contention stands good in respect of a substantive review which touching the merits of the case. 50. In the circumstances, I hold that every Court or Tribunal exercising criminal jurisdiction has a power of review with regard to procedural lapses which is of serious nature which tantamount to orders passed nullity but not other procedural illegality. I also further hold that no Court, including the High Court, has power either inherently or by resorting to Constitution to review the orders on merits once judgment is pronounced and signed in criminal jurisdiction. 51. In the light of the above findings, the docket orders either allowing or dismissing the revisions passed by this Court on various dates are recalled and they stand restored to the files. The Registry is directed to post these matters before the Court having roster for fresh hearing and disposal, after obtaining the orders from the Hon'ble the Chief Justice.