Ganesh Patel v. Umakant Rajoria, S.L.P. (CRL.) NO. 9313 OF 2021
Citation – S.L.P. (CRL.) NO. 9313 OF 2021
Bench – Sanjiv Khanna and Bela M. Trivedi
Facts of the Case
In this case, the accused filed a plea with the High Court under section 482 of the Code of Criminal Procedure, claiming that he and the defacto complainant had reached an agreement. The High Court ruled in favour of the petition. Following that, the de-facto complainant filed an application for the order to be recalled, claiming that it was made in his absence and based on incorrect information. The High Court granted the application and overturned the previous order. The appellant challenged the order of recall before the Hon’ble Supreme Court.
Whether the application for recall of the order was maintainable?
- S. 482, CrPc
- S. 362 CrPc
Arguments By The Appellants
The appellant relied on Section 362 CrPC in his appeal to the Apex Court, which states that “except as otherwise provided by this Code or by any other for the time being in force, no Court shall alter or review a judgement or final order disposing of a case after it has been signed, except to correct a clerical or arithmetical error.”
“This appeal for recall of the order was maintainable because it was an application seeking a procedural review, not a substantive review under Section 362 of the Code of Criminal Procedure, 1973,” the Apex Court bench stated while dismissing the accused’s Special Leave Petition. Grindlays Bank Ltd. v. Central Government
Industrial Tribunal & Ors. 1980 (supp) SCC 420 was cited by the court in this regard. 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 its misapprehension, 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, as stated by the court in Grindlays Bank. In the latter meaning, the Court in Narshi Thakershi’s case decided that no review lies on merits unless the status expressly allows such. Obviously, when a review is sought because of a procedural flaw, the Tribunal’s unintended error must be addressed ex debito justitiae to prevent misuse of its procedure, and every court or Tribunal has this ability.
The court also cited a decision in Budhia Swain and Others v. Gopinath Deb (1999), which explains the difference between recall and review and when a recall order might be issued. The High Court was correct in recalling the order and scheduling a hearing and determination on the merits, according to the court.