Remedy in absence of review power

Criminal courts have no inherent powers as compared to civil courts which has been conferred to set aside ex parte  judgment or order and to review its own order under the provisions of C.P.C. There is no such corresponding provision in the Cr.P.C. On the other hand, section 362 Cr. P.C. clearly bars the court to alter or review its judgment or final order except to correct a clerical or arithmetical error. What is clerical or arithmetical error has been explained by Hon'ble Apex Court in the case of 'Master Constructions Company Pvt. Ltd. Vs. State of Orissa' AIR 1966 SC 1047 and it has been held that arithmetical error is a mistake of calculation and a clerical error is mistake in writing or typing. In the present case, the impugned order does not suffer from any arithmetical error or clerical error. On the other hand, case of the applicant is that her counsel could not appear to argue the case on the date fixed because his name was wrongly printed in the cause list as Vinod Kumar Srivastava in place of Vinod Kumar Sharma. It may, however, be mentioned that the revision was not dismissed in default as there is no provision for dismissal of the criminal revision in default and it was decided on merits holding that the order passed by the Addl. Sessions Judge for treating the application under section 156(3) Cr.P.C. as a complaint was justified. Now the question is whether this Court can recall or review its above judgment in view of the clear bar under section 362 Cr.P.C.

In the case of 'Sankatha Singh and others Vs. State of Uttar Pradesh' A.I.R. 1962 S.C. 1208 the facts were that the accused had filed an appeal before the Sessions Judge against the conviction order, and on the date fixed for hearing of that appeal, none appeared for the accused appellants. Then the learned Sessions Judge dismissed the appeal on merits. Thereafter the accused moved an application for setting aside that order on the ground that their counsel could not appear to argue the case and so the order dismissing the appeal should be set aside and an opportunity should be provided to the appellant to argue the appeal. This application was allowed by the Sessions Judge who had earlier dismissed the appeal. However, before the appeal could be taken up for hearing, that Sessions Judge was transferred, and in his place another Sessions Judge took over charge. When the appeal came up before him for hearing, he was of the view that his predecessor had no right under the provisions of the Cr.P.C. to set aside the earlier order of dismissal of the appeal, and so the order passed by him for rehearing of the appeal was without jurisdiction. He, therefore, maintained the earlier order of dismissal of the appeal passed by his predecessor, and refused to re-hear the appeal. Aggrieved with that order, the accused challenged it before the High Court but the High Court approved the view taken by the Sessions Judge that the earlier order of dismissal of the appeal could not be reviewed. Then the accused went to the Hon'ble Supreme Court and the Supreme Court dismissing the appeal observed that the appellate court has no power to review or restore an appeal which has been disposed of and so the Sessions Judge could not set aside his earlier order dismissing the appeal when neither the appellants nor their counsel had appeared, and could not order for rehearing of the appeal. It was further held that section 369 read with section 424 of the Code (old Cr.P.C.) make it clear that the appellate Court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error. It was also held that even assuming that the Sessions Judge can exercise inherent powers, he cannot pass the order for re-hearing of the appeal in exercise of such powers when Section 369 read with section 424 of the Code (old Cr.P.C. ) specifically prohibit the altering or reviewing of its order by the Court and that inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing.

Minu Kumari and Anr. v. State of Bihar and Ors. AIR 1986 SC 1937

Cognizance of offence was taken by Magistrate against applicant-accused though charge-sheet was not filed against accused and police did not find any material against them. No indication that Magistrate disagreed with opinion of investigating agency and, therefore, ordered issuance of summons . The Magistrate had issued process against applicants without following procedure and order also passed against them. Application for recall of order on ground that it was clerical mistake was allowed and order striking names of applicants was passed. Appeal against that order was allowed on the ground that Magistrate had no power to review its order.  Application  under S. 482 before High Court against appellate order was also rejected on ground that Subordinate Court could not recall its own order under S. 362. Setting aside the order of High Court, the Supreme Court held that :

“Section 362 of the Code, as noted above, permits correctness of clerical or arithmetical errors. There is no quarrel with that proposition. But the High Court seems to have completely lost sight of the scope and ambit of Section 482 of the Code.

18. The Section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code, (ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle "quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest" (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.”

The Full Bench of Supreme Court held in Adalat Prasad v. Rooplal Jindal AIR 2004 SC 4674 : 2004 AIR SCW 5174 , and reaffirmed in  Subramanium Sethuraman, v. State of Maharashtra and another, AIR 2004 SC 4711, that the only remedy available to an aggrieved person (in these cases accused against summoning order) to challenge an order  in an interlocutory stage is the extraordinary remedy under Section 482 of the Code and not by way of an application to recall of orders, where impugned order is not covered by s. 362.

(see also, Criminal Revision no. 966 of 2003 Smt. Gayatri Misra v.
State of U.P. and others).