@JUDGMENTTAG-ORDER
1. The brief facts leading to these two I.As. are that in Cr. P. No. 2344 of 1996 the petitioner filed a petition u/s 482, Cr. P.C. to set aside the order dated 27-7-1996 passed by the X Additional Chief Metropolitan Magistrate, Bangalore, in C.C. No. 22756 of 1996 taking cognizance of the case and directing issue of process to the petitioners. The said case was posted for hearing. On that day the learned advocate was absent and therefore, this Court passed an order on merits on the main contention holding that the contention raised in the petition is that the list of witnesses was not furnished to the petitioner therein, that may be an error which would not go to the root of the case. Therefore, the complainant was directed to furnish the list of witnesses and also list of documents, if any, to the petitioner on the next date of hearing before the Trial Court and the petition was dismissed.
2. Similarly Cr. P. No. 555 of 1996 was filed by Rajashekar Scindia u/s 482, Cr. P.C. to set aside the order dated 28-12-1995 and to quash the further proceedings in the said case (PC 231 of 1995) on the file of the 21st Additional Sessions Judge, Bangalore City, taking cognizance of the case and directing to issue process to the petitioner therein. The said case also stood posted for hearing. On that day, the petitioner''s Counsel appeared and submitted his arguments. However, the Central Government Standing Counsel remained absent despite he being sent words. Therefore, this Court passed an order holding that the proceedings against the petitioner therein would operate in double jeopardy as he was already acquitted by the Court on an earlier occasion for the same complaint. On that ground, the proceedings initiated against him for the second time were quashed relying on the decision of the Hon''ble Supreme Court referred to therein. Therefore, these I.As. came to be filed by the respective parties. The office has raised an objection as to whether the Interlocutory Applications are maintainable u/s 482, Cr. P.C. as there is a prohibition contained u/s 362, Cr. P.C. The matter was posted for hearing before the Court. The Court directed notice to the concerned respondents herein in these I.As. and heard the respondents. However, the respondents have not filed any written objections but they orally contended that these I.As. are not maintainable as both the orders came to be passed on merits and therefore, this Court has become functus officio. Under those circumstances, these orders cannot be recalled or reviewed by this Court.
3. Repelling this argument, the learned Advocates appearing for the applicants vehemently argued that it is not the case of reviewing or altering the judgment or order. On the other hand, the applicants are seeking the recalling of the order. Therefore, the same is maintainable.
4. There is no dispute that both the original petitions were disposed of by this Court by a considered order. However, the respondents to these I.As. have not raised any objection in regard to the reason for the non-availability of the advocates and the Government Standing Counsel on the dates when these orders came to be passed. In other words, there is no dispute regarding the reasons assigned in these applications for the absence of the Advocate and C.G.S.C. As indicated above, the only ground on which these applications required to be considered is in regard to the maintainability of the same to recall that order which came to be passed on merits of the petition u/s 482, Cr. P.C. Since in both the cases identical question regarding maintainability is raised, this order is passed. Retain a copy in each file.
5. It is well-settled law in view of the decision rendered by their Lordships of the Supreme Court in Madhu Limaye v State of Maharashtra, wherein it is held:
"The following principles may be stated in relation to exercise of the inherent power of the High Court:
(i) That the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party;
(ii) That it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; and
(iii) That it should not be exercised as against express bar of law engrafted in any other provision of the Code".
6. In Giridharilal v Pratap Rai Mehta, this Court has held that the petition to recall the order passed by the Court is maintainable u/s 482, Cr. P.C. notwithstanding the fact that the application to review and alter the judgment is prohibited u/s 362, Cr. P.C. In that case this Court has considered the scope and purport of Section 362. Further relying on the decision in the judgment of the Full Bench of Rajasthan High Court in Abu v. State, this Court has held the power of recalling is different from the power of altering or reviewing the Judgment. Subsequently, this Court had an occasion to deal with a similar case and held in Seenappa Shetty v Bhujanga Shetty, that the application for recalling the order passed on merits exercising the jurisdiction of the revisional powers by this Court, amounts to review of the order prohibited u/s 362 of the Code of Criminal Procedure. It is further held that exercising its revisional jurisdiction as contemplated under Sections 401 and 403 of the Cr. P.C. would decide the cases even in the absence of the petitioner or his Counsel. While deciding such cases, this Court would give regard to the facts and circumstances placed before the Court below, the grounds of revision and the law that is applicable on such circumstances. Even if the order on the application made by the petitioner is recalled, it virtually amounts to cancelling or abrogating the well reasoned order passed by this Court after giving due regard to facts and circumstances. There is no statutory provision for recalling the order passed on merits by the same Court unless the said order is annulled by a Superior Court. This obviously means there should be a finality for judicial orders and this is so reflected u/s 403 of the Code. Earlier decision was cited before His Lordship and His Lordship has discussed that decision in paras 18 and 19 of his order and specifically dissented from the judgment in Abu''s case, which was mainly relied on by this Court in Giridharilal''s case referred to above. Further, it is also clear from the judgment rendered by this Court in Anjanamma v State of Karnataka, wherein it is held that the provisions of Section 362 do not restrict the prohibition to the Trial Court alone and the provisions in Section 362 are general in application and prohibit all Courts from altering or reviewing its judgment when once it has been signed and the provisions of Section 482 cannot he invoked for exercise of a power which is specifically prohibited by the Code.... In view of the specific prohibition contained in Section 362, Cr. P.C. and on the principles of natural justice also it is not possible for the Court either to recall the order or give re-hearing to the parties. . . . Having regard to the provisions of Section 403, Cr. P.C. a party having no such right of being heard either personally or by a pleader in revision, it cannot be said the High Court, having called for the records, had committed any error by proceeding to the Judgment in the absence of the applicant or his Counsel.
7. From a perusal of Section 482 also it is abundantly clear that there is no question of giving an opportunity of being heard either personally or by a pleader in an application filed u/s 482. It is open to the Court to find out as to whether any of the ingredients of Section 482 is violated calling for interference by this Court. In Cr. P. No. 2344 of 1996 the matter has been remanded to the Court below with necessary directions. Therefore, the petitioner will have full opportunity before the Trial Court to urge all the contentions raised before this Court. In Cr. P. No. 555 of 1996 relying on the decision of the Supreme Court this Court has rendered the decision on merits and it is always open to the applicant herein to approach the Apex Court if any prejudice is caused. It is not a finality and the applicants are not without any relief available leading to abuse of process of Court. It is for the satisfaction of the Court to see as to whether there is abuse of process of Court in the order passed by the Court below. That being the case, it is not mandatory that advocate or the petitioner should be heard before passing the order. It is always open to the Court to look into the records and the contentions raised in the petition and to proceed to pass the order on merits of the case. Just because the parties or their Counsel are absent, it is not open to the parties at default to ask for recall of the order passed on merits and duly signed.
8. It is also fully supported by a decision in Malhari Bhavarao Kulkarni v State of Karnataka, wherein this Court has held that the High Court cannot exercise inherent powers u/s 482, Cr. P.C. to do what the code specifically prohibits from doing. There is a clear bar u/s 362 of the Code for the Court from altering or reviewing judgment or order except to correct a clerical or arithmetical error once the judgment or order is pronounced. Therefore, the High Court cannot exercise the inherent power to review its own order.
9. In Raj Narain and Others v The State, the High Court has held that the High Court''s power to revoke, review, recall or alter its own earlier decision in a criminal revision can be done only in cases falling under one or the other of the 3 conditions mentioned in Section 561-A viz., (i) for the purpose of giving effect to any order passed under the Code of Criminal Procedure; (ii) for the purpose of preventing abuse of the process of any Court; and (iii) for otherwise securing the ends of justice. It is also observed that the inherent power u/s 561-A has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in that section itself. . . . Generally it may be stated that powers u/s 561-A to rehear a case can only be exercised where the facts of the case are shocking to the conscience. Section 561-A thus would not authorise this Court to rehear a case where the applicant or appellant was not heard due to some fault of his or of his Counsel --
10. In Smt. Sooraj Devi v Pyare Lal and Another, their Lordships of the Supreme Court have held that the inherent power cannot be invoked or exercised for doing that which is specifically prohibited by the Code. It is true that the prohibition in Section 362 against the Court altering or reviewing its judgment is subject to what is "otherwise provided by the Code or by any other law for the time being in force". Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 -- Sankatha Singh and Others v State of Uttar Pradesh , followed.
11. In Rajul and Another v State of Uttar Pradesh the Allahabad High Court has held that Section 362 prohibits altering or recalling of the judgment as it amounts to alterations or reviewing of the judgment. What is prohibited u/s 362 cannot be permitted u/s 482, Cr. P.C. The Full Bench of the Punjab and Haryana High Court in Ajit Singh and Another v State of Punjab, have held that the High Court has no power to review or revise its earlier judgment except to correct clerical errors. This is so both with regard to the appellate and the revisional jurisdiction of the High Court. The High Court also cannot invoke its inherent jurisdiction u/s 482 for this purpose. It is also held that any alteration or modification of the sentence alone amounts to a review of the judgment in the eye of law and further time for deposit of fine cannot be extended as it would amount to review or alteration of judgment on point of sentence which is not within the powers of the Court.
12. The Madhya Pradesh High Court in Abdul Rauf Khan and Others v Dr. Majid Hussain, wherein it is held that Section 482 of Cr. P.C. confers a separate and independent power on the High Court alone to pass order ''ex debito justitiae'' in cases where grave injustice has been done or where the process of the Court is seriously abused.
13. As far as inherent power of the Court is concerned, there is no dispute whatsoever and it is also clear that in exceptional cases, the Court can invoke its inherent jurisdiction to avoid the abuse of the process of the Court. But in these two cases as indicated above, it cannot be said that any grave injustice would be done to the parties as they have alternative and efficacious remedy available under the Code. Therefore, it is not an extraordinary circumstance calling for interference by this Court invoking Section 482, Cr. P.C.
14. In Simrikhia Mosst v Smt. Dolley Mukherjee alias Chhabi Mukherjee and Another, their Lordships of the Supreme Court held:
"The Court is not empowered to review its own decision under the purported exercise of inherent power. The inherent power u/s 482 is intended to prevent the abuse of the process of the Court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. Section 362 of the Code expressly provides that 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 save as otherwise provided by the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the Court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred u/s 362".
In this case also, the applicants have not made out any changed circumstances warranting this Court to reconsider the case. It is also necessary to mention that recalling of the order is only where the case was not considered and disposed off on merits of the case. For example, if a case is dismissed for default of furnishing process or non-compliance of the office objections or taking any other steps for which the case is posted and if such a petition is dismissed, it is always open to the Court to recall the order on application being made by the parties giving sufficient reasons. But when once the judgment or order is passed, considering the case on merits and signed, with reference to the materials available on record, it is not open to the Court to recall that order just because the parties or their respective advocates were not heard, as there is a clear bar u/s 362, Cr. P.C. In addition to that, there is no provision in the Cr. P.C. empowering the Court to recall the order passed on merits and after it is duly signed.
Therefore, viewed from any angle, these applications are not maintainable and they are accordingly dismissed.
