Power of Review

UNDER CRIMINAL PROCEDURE CODE: (Section 362)

Preamble:

The draftsman take care, while drafting any legislations, or the Rule making authorities always consider as to whether the authority should be clothed with the power to review its own decision, once the decision is notified on a particular subject. There are statutes and the statutory rules made under the relevant Acts that may or may not provide for the “review of decision” once made. There may not be any difficulty, if the statue provide for “express authority” to so review the decision. But, if the authority is not clothed with the power to review, it leads to a mandate that there is total bar or the prohibition to so exercise the power to review.  

Executives are free to exercise power to review the matters touching to the pure and simple administrative policies, but when they derive something to be done under the Act or the Rules made thereunder, the particular power to review must be shown to have existed. And absence of power disables the authorities to so review, recall or revise the decisions. In fact the quasi judicial, or judicial power to review cannot be exercised, if not provided for. Take an illustration, where the Code of Civil Procedure provides for a remedy for “review of judgment”. The Civil Courts would be competent to undertake the review of the judgments pronounced. But such power to review the order or decision once made is not available in Criminal Procedure Code.

Section 362 of Criminal Procedure Code:

Court not to alter judgement:

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. (Emphasize supplied)

Honourable the Calcutta High Court said:

“Once the Court lifts its pen after signature it cannot put it once again; (Harjeet Singh v. State of West Bengal 2005 Criminal Law Journal 3286) except of the situations like for the purpose of rectifying a clerical or arithmetical error [1]. (Master Constructions Private Limited vs. State of Orissa, 1966 AIR 1047=1966 SCR (3) 99) (Emphasize supplied)

Honourable the Allahabad High court said:

“We hold that in view of Section 362 of the said Code there is a clear bar for any Court, which includes the High Court, to either review or recall an order or judgment passed even if it is found subsequently that it offends the principles of natural justice, as this is the language of Section 362 of the said Code. (Smt. Gayatri Mishra vs. State of U.P. and another 2007 Criminal Law Journal 3887) (Emphasize supplied)

This prohibition is complete and no criminal court can review its own judgment or order after it is signed and pronounced. There is no such provision under the Code of Criminal Procedure.” (Gujarat High Court in Criminal Miscellaneous Application 4926 of 2011)

The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of Court". (Hari Singh Mann Vs. Harbhajan Singh reported in AIR 2001 SC 43)

GUJARAT HIGH COURT

Honourable the Gujarat High court had the occasion to consider the provisions of Section 362 of the Criminal Procedure Code in Criminal Miscellaneous Application 4926 of 2011 in Criminal Appeal 1029 of 1998.

In the aforesaid matter, original appellant in Criminal Appeal No.1029 of 1998 filed an application for recalling of the judgment and order dated 23.3.2011 passed by the Court in Criminal Appeal No.1029 of 1998 and to grant the benefit of probation to the applicant under the provisions of the Probation of Offenders Act, after calling the report of the Probation Officer and to extend the time to the applicant to surrender before the Jail Authority. (Emphasize supplied)

The Learned Advocate for the accused made a submission to the effect that that the applicant has right to get benefit of probation. Therefore, the order of sentence awarded to the applicant deserves to be recalled and it may be considered whether the applicant is entitled for probation or not. Therefore, the order passed by the Honourable the High Court on 23.3.2011 in appeal may be recalled and case of the applicant for giving him benefit of probation under the Probation of Offenders Act may be considered.

Counter to the argument, the Assistant Public Prosecutor for the State, opposed the application and submitted that when the High court has passed the judgment and order after hearing both the sides and after considering the relevant material, in view of provisions of Section 362 of the Criminal Procedure Code, question of reviewing or recalling the judgment or order cannot arise. Therefore, the application filed by the applicant deserves to be dismissed. (Emphasize supplied)

Admittedly, therefore, the applicant was seeking review of the order passed by the Honourable the High Court. The Honourable the High Court was pleased to consider the provisions of Section 362 of the Code of Criminal Procedure, which reads as under:

SECTION 362: Court not alter judgment:

"Save as otherwise provided by this Code or by other law for the time being in force, no Court, when it has signed its judgment and final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error.”

Honourable the High Court relying on the judgment in case of State of Orissa v. Ram Chander Agarwal reported in AIR 1979 SC 87 observed:

“Looking to the above provision, it is clear that this Court cannot review its judgment passed, either in exercise of its appellate or revisional or original criminal jurisdiction, except to correct a clerical or arithmetical error. Therefore, in the present case also power of review cannot be exercised with the aid or under the cloak of Section 482 of the Code. Moreover, the Hon'ble Apex Court in the case of State of Orissa v. Ram Chander Agarwal reported in AIR 1979 SC 87, has held that "the High Court has no power to review its own order." (Emphasize supplied)

Honourable the High Court further held in the judgement that:

Therefore, in view of above legal position, it is clear that this court has no power to review or recall its own order, except for the purpose of correcting a clerical error. It is, therefore, clear that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained, as there is no provision in the Criminal Procedure Code which would enable the High Court to review its own order to exercise revisional jurisdiction.

Honourable the Gujarat High Court further considered the very decision rendered by the Hon'ble Supreme Court in the case of Hari Singh Mann Vs. Harbhajan Singh reported in AIR 2001 SC 43, wherein the Hon'ble Supreme Court has observed that "no review of an order is contemplated under the Code of Criminal Procedure after the disposal of the main petition. There was lis pending in the High Court, wherein the applicant could have filed any miscellaneous petition. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of Court". (emphasize supplied)

In the decision of State of Kerala Vs. M.M. Manikantan Nair reported in AIR 2001 SC 2145, the Hon'ble Supreme Court has observed that "the Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction."

Honourable the High Court said:

“Therefore, I am of the opinion that the Code of Criminal Procedure does not authorise the High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. This prohibition is complete and no criminal court can review its own judgment or order after it is signed and pronounced. There is no such provision under the Code of Criminal Procedure.” (Emphasize supplied)

In the case of Adalat Prasad vs. Rooplal Jindal reported in 2004 AIR (SC) 4674, it has been observed by the Hon'ble Supreme Court that "review of an order is not contemplated under the Code of Criminal Procedure."

In the aforesaid judgment of the High Court, the court also considered the decision in the case of Vishnu Agarwal vs. State of U.P. & Ors. reported in 2011 (1) GLR (NOC), wherein the Hon'ble Supreme Court has held that "there is difference between order of review and order of recall, hence, the order of recall is not barred under Section 362 of the Code of Criminal Procedure." However, in the facts of that case, learned advocate for the party was not present when the matter was disposed and the matter was decided ex-parte. Thereafter, an application was made to recall the order and High Court recalled its order, which judgment was confirmed by Honourable Supreme Court. However, in the instant case, order disposing the appeal was passed in presence of both the learned advocates, after hearing them, and after considering the record of the case. Therefore, when the order is passed in presence of advocate for the appellant and after hearing the learned advocates for the parties, then there is no question of recalling the order.

The Honourable the High Court said:

“In view of the above observations made by the Hon'ble Supreme Court in various cases, it is crystal clear that under the Code of Criminal Procedure, there is no jurisdiction vested in Court to review its own order. Even in the application made by the applicant, it is not mentioned under which provision the application is made by the applicant for recalling of the conviction order and for benefit of probation. This Court has no power to alter or review its own judgment. After the Court has given its judgment or final order disposing of a case, it shall not alter or review the same except to correct a clerical error or arithmetical error. Therefore, it is crystal clear that there is no power of review after judgment has been rendered. The provisions of Code of Criminal Procedure does not empower the High Court to revise or review its judgment in criminal appeal or revision, after it has been pronounced and signed. Therefore, the relief as prayed for in the application, do not have any substance in view of the observations made in the aforesaid portion of this order.”

Honourable the High court lastly held:

But as per the provisions and principle laid down by the Hon'ble Supreme Court in various cases, this Court has no power to review or recall its own judgment and order.

The application having no substance was dismissed. Rule was discharged by the Honourable the High Court.

Here, the applicant should be saddled with heavy cost having regard to the fact that the applicant has committed abuse of process of the court. In case of Priti Bhojnagarwala (2003 Criminal Law Journal 4062) Gujarat High Court observed as under:

“In view of the above legal position…present application is not maintainable. It seems that the applicant has abused the process of law by filing this type of application….This is nothing but an abuse of process of law by filing this application. In view of the above, this Court is of the considered view that this is a fit case in which the applicant should be ordered to pay special costs which can be used for good and benevolent purposes….”

“For the foregoing reasons, this revision application is dismissed. Applicant is ordered to pay Rs.10,000.00 (Rs. Ten thousand only) as costs as a special case and that amount is ordered to be deposited in the Office of High Court Legal Service Committee within one month from the date of this order...”

(Hemang D. Rana)

Advocate for the Opponents

Gujarat Bar Council Sanad G |693 of 1983

Address: 1, Tirupati Apartment, New Sangam Park Society,

Near Hira Baugh Railway Crossing, Ambawadi,

Ahmedabad 380 006: (Gujarat) 

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