Table of Contents
JURISDICTION OF HIGH COURTS TO RECALL ORDERS: A LEGAL QUANDARY
Authors: Jyoti Prakash Dutta & Rajalaxmi Mohanty,
Students, University Law College, Utkal University.
INTRODUCTION
There are fundamental distinctions between review or alteration of a judgment and recalling the same. It is a well-established dictum that no criminal court could review or alter its judgments once delivered. However, when the jurisdictions of constitutional Courts, i.e., High Courts are in issue, a much liberal interpretation should be attributed having regard for the colossal responsibility it holds for safeguarding the rights of individuals. An extensive study into the constitutional and statutory provisions, legal principles and precedents would reveal that the High Courts while acting as an appellate forum for criminal matters, enjoy certain special powers and immunities which are not available to other subordinate criminal courts.
STATUTORY TABOO ON REVIEW AND ALTERATION, NOT ON RECALL IN APPROPRIATE CASES:
The authority to recall can be distinguished from the power of altering/reviewing the judgment. There is a distinction between a review petition and a recall petition. The Apex Court has lucidly drawn a line of differentiation between the two in Asit Kumar v. State of West Bengal & Ors.,[1] when it held that while in a review petition, the Court considers on merits whether there is an error apparent on the face of the record, 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 or when an
order is passed a Court which does not possess the required jurisdiction.
order is passed a Court which does not possess the required jurisdiction.
It is a settled proposition of law that High Court has no jurisdiction to review its order either under Section 362[2] or under Section 482[3] of the Code of Criminal Procedure.[4] 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.[5] After disposing of a case on merits, the Court becomes functus officio[6] and Section 362 expressly bars review and specifically provides that no Court after it has signed its judgment shall alter or review the same except to correct a clerical or arithmetical error.[7] If recall of judgment would amount to alteration or review of judgment, it cannot be done as barred under Section 362. It cannot even be validated by the High Court invoking its inherent powers.[8]
RECALL OF ORDER MUST NOT RESULT IN ALTERATION OF ORDER ON MERITS:
Recall of orders are specifically done to rectify any procedural irregularity. Hence, the contents of such order must comply with the limitations that are mandated by constitutional and precedential authorities. It is a settled provision of law that what cannot be done directly, cannot authorised to be done obliquely. Whatever is tabooed by law, cannot legally be effected by circuitous contrivance on the principle of ‘Quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud’. This legal position has been reiterated by several decisions of the Hon’ble Apex Court.[9] Therefore, when review or alteration of judgment is prohibited by Section 362, Cr.P.C., it should not be done under the guise of the inherent power of High Courts under Section 482, Cr.P.C.
WHEN THE COURT BECOMES FUNCTUS OFFICIO IN CIVIL MATTERS?
As per the interpretation of the Black’s Law Dictionary functus officio means,[10] “having fulfilled the function, discharged the office, or accomplished the purpose and therefore, of no further force or authority.”
Order XX of the Code of Civil Procedure deals with the provisions of judgment and decree in civil matters. Sub-rule (1) of Rule 1 specifies that the Court, after the case has been heard, shall pronounce judgment in an open Court either at once, or as soon thereafter as may be practicable, and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose of which due notice shall be given to the parties or to their pleaders. Sub-rule (3) says that the judgment may be pronounced by dictation in an open court to a shorthand writer (if the judge is specifically empowered in this behalf). The proviso thereto provides that where the judgment is pronounced by dictation in open court, transcript of the judgment so pronounced shall, after making such corrections as may be necessary, be signed by the Judge, bear the date on which it was pronounced and form a part of record. Rule 3 provides that the judgment shall be dated and signed by the Judge in open court at the time of pronouncing it and when once signed, shall not afterwards be altered or added to save as provided by Section 152 or on review.
Thus, when a judgment is reserved, mere and sundry dictation doesn’t amount to pronouncement, but where the judgment is dictated in open court that itself amounts to pronouncement. However, even after such pronouncement in open court, the Judge can make corrections before signing and dating the judgment. Hence, a judge becomes functus officio when he pronounces, signs and dates the judgment.[11]
WHEN IT BECOMES APPOSITE FOR COURT TO RECALL ORDER?
For a translucent understanding, it is apposite to have a glance on the observation of the Hon’ble Supreme Court in State of Punjab v. Davinder Pal Singh Bhullar & Ors.,[12] that if a judgment has been delivered in lack of jurisdiction or in contrast to the principles of natural justice or where the order is pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of Court which would amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such eventuality the order becomes a nullity and the provisions of Section 362 would not apply. In such an event, the judgment is apparently in contravention to the principles of audi alterem partem.
Inherent power to recall its own order vesting in courts was deliberated in Indian Bank v. M/s Satyam Fibres India Pvt. Ltd.,[13] wherein the Court held that the Courts have inherent power to recall and set aside an order if (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, or (iv) judgment was rendered in ignorance of the fact that a necessary party had not been served at all.[14] The inherent power of the High Court may be used to meet certain situations which would otherwise culminate in miscarriage of justice. However, in exercising inherent power, the Court cannot override the express provisions of law.[15]
RECALL SHOULD BE EFFECTUATED TO DISPENSE COMPLETE JUSTICE:
In Municipal Corporation of Greater Mumbai & Anr. v. Pratibha Industries Ltd. & Ors.,[16] the Apex Court held that from Article 215 of the Constitution, it is clear that the High Courts being Courts of record, the jurisdiction to recall their own orders is inherent by virtue of the fact that they are superior Courts of record. The Constitutional Courts, in order to do complete justice between the parties, has inherent power to recall order. To keep records straight, the High Courts have power conferred on them to recall orders under Article 215[17] of the Constitution. If the facts and circumstances justify, High Courts are constitutionally warranted to order for a recall.[18]
The Highest Court has recognised the need for liberal interpretation of the statutory embargo. It is recognised that for need of compliance to a provision, justice must not be denied to any of the parties. The provision is made for upholding justice; hence it cannot be used as a snafu. In this context, the decision of the Supreme Court in Sushil Kumar Sen v. State of Bihar,[19] would be felicitous wherein it was observed that “the processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress of legal justice compels consideration of vesting a residuary power in judges to act ex debito just
itiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of Jurisprudence, processual as much as substantive.”
itiae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of Jurisprudence, processual as much as substantive.”
A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid of justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.[20] In Vishnu Agarwal v. State of Uttar Pradesh, it was held that Section 362 cannot be considered in a rigid and over technical manner to defeat the ends of justice. The Court should not give its decision based only on the letter of the law. For if the decision is wholly unreasonable, injustice will follow.[21]
CONCLUSION:
From the foregoing discussions, it is crystal clear that the High Courts have got jurisdiction to recall their orders whenever circumstances so require. Being Courts of record and Constitutional Courts, they could not have been deprived of this very power which at times becomes essential to promote the ends of justice. However, such power should not be utilised whimsically or in an unguided manner. Judges must keep in mind that their orders of recall must not result in alteration of original order on merits or review of the same, when not expressly empowered by statutory mandates. This salutary provision ought to be used for granting equitable justice to the parties which are not at fault and are entitled to it.
[1] (2009) 1 SCR 469.
[2] Section 362, Cr.P.C.:-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.
[3] Section 482, Cr.P.C.:- 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.
[4] State of Kerala v. M.M. Manikantan Nair, (2001) 4 SCC 752.
[5] State Represented by D.S.P., C.B.C.I.D., Chennai v. K.V. Rajendran & Ors., 2009 Cr.L.J. 355 SC.
[6] State of Madhya Pradesh v. Man Singh, (2019) 10 SCC 161.
[7] Hari Singh Mann v. Harbhajan Singh Bajwa & Ors., (2001) 1 SCC 169.
[8] Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736.
[9] State of Tamil Nadu and Others v. K. Shyam Sundar and Others, (2011) 8 SCC 737; Sant Lal Gupta v. Modern Cooperative Group Housing Society Ltd., (2010) 13 SCC 336; M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213: AIR 2000 SC 1997; Jagir Singh v. Ranbir Singh, (1979) 1 SCC 560.
[10] 6th Edition, Page 673.
[11] State Bank Of India & Ors. v. S.N. Goyal, (2008) 8 SCC 92.
[12] (2011) 14 SCC 770.
[13] (1996) 5 SCC 550.
[14] Sri Budhia Swain & Ors. v. Gopinath Deb & Ors., AIR 1999 SC 2089.
[15] Jaipur Mineral Development Authority v. The Commissioner of Income Tax, AIR 1977 SC 1348: (1977) 1 SCC 508; Timblo Irmaos Ltd., Margo v. Jorge Anibal Matos Sequeira & Anr., AIR 1977 SC 734: (1977) 2 SCR 451.
[16] (2019) 3 SCC 203.
[17] Article 215:- Every High Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself.
[18] High Court of Jammu and Kashmir v. State of Jammu and Kashmir, APLPA No. 6 of 2012 & LPAOW No. D-57 of 2012.
[19] (1975) 1 SCC 774.
[20] Shreenath & Anr. v. Rajesh & Ors., AIR 1998 SC 1827; Smt. Rani Kusum v. Smt. Kanchan Devi & Ors., (2005) 6 SCC 705.
[21] Vishnu Agarwal v. State of Uttar Pradesh, (2011) 14 SCC 813.