Calcutta High Court (Appellete Side)
Pravash Chandra Sarkar vs Unknown on 26 February, 2014
Author: Toufique Uddin
Bench: Toufique Uddin
1 26.2.2014
C.R.M. 470 of 2013 In re:: CRAN 108 of 2014: An application for recalling of order dated 6.1.2014.
And In the matter of : Pravash Chandra Sarkar ................Petitioner Mr. Subir Banerjee Mr. Jayanta Banerjee Mrs. Sujata Das ...............For the Petitioner/State Mr. Abhra Mukherjee Mr. Pinaki Bhattacharya Mr. Anjan Dutta ......... For the Opposite Party This relates to an application for recalling of order dated 06.01.2014 and 06.08.2013 passed by this Court. The case of the present petitioner is as follows:-
One Pravash Chandra Sarkar, the Secretary of the Managing Committee of Purgram S.C. High School on 25.11.12 lodged a written complaint against the present petitioner Opposite Party No. 2 with the Kaliaganj P.S. that he defalcated Rs. 1.75 lacs without any authority. Apprehending arrest, the present petitioner filed an application for anticipatory bail in the court of learned District Judge, Uttar Dinajpur at Raigunge. On hearing of both sides, the learned Court granted anticipatory bail to the Opposite Party No. 2.
Against the said order of anticipatory bail, Pravash Chandra Sarkar lodged CRM 470/2013 before the 2 Hon'ble court with a prayer for the cancellation of bail granted to the Opposite Party No. 2.
One Sujata Das, learned counsel for the petitioner could not remain present at the relevant point of hearing on 6.8.13. So, on hearing of the complainant as well as the learned counsel for the State the Hon'ble Court cancelled the anticipatory bail on 6.8.13 and directed the present petitioner/Opposite Party No. 2 to surrender before the learned Court below on or before 3.9.13.
Thereafter, the Opposite Party No. 2 on 11.12.13 filed an application for recalling of the said order dated 6.8.13 but unfortunately again on 6.1.14 the above recalling application being CRAN 108/2014 was dismissed by the Hon'ble Court. So, On 08.01.2014 the Opposite Party No. 2 filed another application for recalling order dated 06.01.2014.
Hence the present petition.
The learned counsel for the petitioner/Opposite Party No. 2 not only filed written argument but also made oral submission by stating that Section 362 of the Code of Criminal Procedure has no manner of application for recalling of the order of bail or anticipatory bail or for cancellation of the bail because it is neither a final order nor a judgment in the eye of law.
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In support of his contention the learned Counsel cited before me the decisions in the case of Usman Bhai Daud Bhai Menon & Ors. vs. State of Gujarat reported in AIR 1988 Supreme Court 922; Sudip Sen vs. State of W.B. reported in (2010) 3 C Cr LR (Cal)
314. He further argued that an opportunity should be given to the accused before passing any order to administer justice in accordance with law. In support of his contention he cited before me the decisions of Md. Sukur Ali vs. State of Assam reported in 2011 C Cr LR 1690 (Supreme Court); M. S. Tirupati vs. C. H. Ramakrishna Rao reported in (2010) 1 C Cr LR (Cal) 391 and Sri Mritunjoy Pradhan vs. State & Anr. reported in (2011) 2 C Cr LR (Cal) 747.
The learned Counsel further argued that the prayer for cancellation of the anticipatory bail cannot be filed before a Single Bench instead of a Division Bench of the Hon'ble High Court. He also argued that the order passed by this Bench on 6.1.14 is, therefore, a nullity being without jurisdiction and accordingly, quorum non judice and, as such, the provision of Section 362 of the Code of Criminal Procedure is not attracted. Further, it was argued that in terms of the decision in the case of B. N. Elias & Co. Ltd. vs. Md. Idris Ali & Ors. reported in (2013) C Cr LR (Cal) 437 and Bishnu Agarwal vs. The State of U.P. reported in 4 AIR 2010 Supreme Court 1232, the prayers ought to have been filed first before Learned Sessions Judge, Uttar Dinagpur, Raiganj. He argued that the order can be recalled as it is neither changing nor altering nor reviewing the order passed earlier. Therefore, he prayed for recalling of the order dated 6.8.13 as well as 6.1.14.
On the other hand, the learned Counsel for the Opposite Party herein/the original petitioner at the first hand submitted that the argument as placed by the learned Counsel for the present petitioner i.e. Opposite Party No. 2 is an attempt in desperation because the argument has no legs to stand upon. He submitted that the matter of CRM 470/2013 was running in the list for quite sometime but the accused Opposite Party chose not to appear before the court though affidavit of service shows Opposite Party No. 2 was notified. Ultimately by a reasoned order dated 6.8.13 this Bench was pleased to cancel the bail granted to the Opposite Party which runs as follows:
"Days together the matter is running in the list. None is coming on behalf of the Opposite Party No. 2/accused. Having heard the learned Counsel for the Petitioner and the learned Counsel for the State and considering the report submitted by the Investigation Officer in compliance with the order dated 24.6.2013, the bail granted to the Opposite Party No. 2, namely Manoj Majumdar, stands cancelled. The Opposite Party No. 2/accused is directed to surrender before the learned Court below on or before 30.9.2013."
Needless to mention that on 09.04.2013, in presence of Learned Lawyer of the complainant a 5 report was called for on his prayer about the allegation, made in the petition against the accused.
Despite the passing of aforesaid order, the accused did not surrender before 30.9.13. Rather on 11.12.13, he (accused) chose to file another application being CRAN No. 3741 of 2013 for recalling the order dated 6.8.13 but again the matter was fixed for hearing of 6.1.2014 on the prayer of accused and still the applicant neither appeared before the Hon'ble court not any accommodation was sought for on his behalf. Therefore, on hearing the learned Counsel for the Petitioner as well the learned Counsel for the State the Hon'ble Court rejected the application being CRAN No. 3741 of 2013 by a reasoned order running as under:
"This is an application under Section 439(2) of the Code of Criminal Procedure. None moves for the petitioner even today. Having heard the learned lawyer of the Opposite Party No. 2 as well as the learned lawyer of the State and considering the impugned order, I find no justification to entertain the petition and the same stands rejected."
The accused/applicant thereafter took out instant application for recalling of order dated 06.01.2014, rejecting recalling application dated 11.12.2013.
He further submitted that the decision as cited by the learned Counsel for the Petitioner has no manner of application in the facts and circumstances of the present case.
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To strengthen his argument he referred to the judgment in Harjeet Singh vs. State of W.B. reported in (2005) 1 C Cr LR (Cal) 598 as well as the decision in B. N. Elias & Co. LLP vs. Md. Idris Ali & Ors. reported in (2013)3 C Cr LR (Cal) 437 and another of Sri. Susanta Ghosh vs. State of W.B. reported in (2013) 3 C Cr LR (Cal) 446.
I have heard the submissions of the learned counsels for the petitioner/accused No. 2, Learned Lawyer of the complainant and State at length.
The cause title of CRM 470 of 2013 was for cancellation of bail of Manoj Majumder and prayer portion was for cancellation of regular bail.
Shorn of unnecessary details the main thrust of argument of the learned Counsel for the present Petitioner is that the prayer for cancellation of bail ought to have been made firstly before the concerned District Judge, U.D., Raigunge and thereafter the matter ought to have been moved before the Hon'ble court. Since this is not done, the order can be termed as a nullity and as such it is amenable to Section 362 of the Code of Criminal Procedure thereby meaning that the said Section 362 is no bar in recalling any order.
His second fold of submission is that principles of natural justice was violated as he was not given the opportunity of being heard.
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Needless to mention that after grant of anticipatory bail by the District Judge, U.D., the accused No. 2 was directed to surrender before the learned Court below i.e. learned Chief Judicial Magistrate, Raigunge. He did so and thereafter, got regular bail. The learned Counsel for the Petitioner harped on the same string by stating that the complainant came up with the revision of CRM 470/2013 against the order of anticipatory bail granted by the District Judge and not against regular bail. Over this matter, the learned counsel for the complainant submitted that the prayer portion of the revision itself is a signal that against the prayer for regular bail they approached the Hon'ble court. A Careful scrutiny of the cause title and prayer as made in CRM 470/2013 amply demonstrates that the complainant came up mainly against the regular bail granted by the learned Chief Judicial Magistrate, Raigunge, although, the order of the same has not been annexed. Rather as a continuation of the process, they annexed the copy of the order of the anticipatory bail. There is nothing wrong in it.
It is pertinent to mention here that there is a difference between 'anticipatory' bail and 'regular' bail. If an accused after obtaining anticipatory bail surrenders in court below and gets regular bail then 8 the force and vigour of anticipatory bail loses its character.
There is marked difference between 'recall', 'review' and 'alteration' of the judgment.
Section 362 of the Code of Criminal Procedure reads as under:
"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."
It is correct that except clerical or arithmetical error no final order or judgment can be reviewed. Here, CRM 470/2013 is itself a case and the order passed therein is a speaking order, reaching the finality. So, it is not an interlocutory order. It is correct in the decision of M.S. Tirupathi Vs. C.H. Ramakrishna Rao and another, reported in (2010)1 C Cr LR (Cal) 391 on the ground of non-hearing of the learned Counsel of accused, order was passed by the Hon'ble court for hearing of Learned Lawyers of the accused.
'Recall' means to take away any order creating a vacuum. This Bench passed the impugned order after giving opportunity to other side, opposite Party No. 2 who did not to attend.
In the Code of Criminal Procedure there is no provision for review.
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Alteration means to change the order. It is strictly prohibited in Code of Criminal Procedure in the light of Section 362 of the Code of Criminal Procedure. The order dated 6.8.13 and 10.1.14 are not orders in nullity or, in other words, those orders cannot be of zero value. Order dated 06.08.2013 shows I/O's report was considered. So, it was a speaking order.
In (2005)1 C Cr LR (Cal) 598 Supra the Hon'ble Court held:
"Once the order, may be a judgment or a final order, is signed by the Court while disposing a case, it becomes functus officio and it cannot touch its pen on the same even if the ink has not dried on its signature. That is the spirit of Section 362 of the case Code.
We have given our anxious consideration to the issue involved while striking a balance between the procedure to be followed, protecting the interest of justice in the light of the valuable right to property and the valuable right of audience we feel that in the light of the clear dictum of the law the court cannot review or recall its final Order, even in cases where the parties may come up before it feeling that they have not been heard or they have left out something, which it placed before the Court, may have resulted in a different decision and that the decision arrived in their absence was an impaired finding. Once the Court lifts its pen after signature. It cannot put it once again; except of the situations like for the purpose of rectifying a clerical or arithmetical error.
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"
But, In Sooraj Devi Vs. Pyare Lal and another reported in AIR 1981 SC 736, the Hon'ble Apex Court observed:-
"that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited 10 by the Code. The Hon'ble Apex Court also observed that the words "otherwise provided by this Code or by any other law for the time being in force" refer to those provision only where the Court has been expressly authorized 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 and, therefore, the attempt to invoke the power can be of no avail."
In the case of Md. Sukur Ali Vs. State of Assam reported in 2011 Cr L J SC 1690, the Honourable Apex Court made the following observations:-
"Criminal case, whether trial, appeal revision, should not be decided against accused in absence of his Counsel. Liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the, Constitution. Article 21 can be said to be 'heart and soul' of the fundamental rights. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case, Hence, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a Counsel, there will be violation of Article 21 of the Constitution. As such even if the Counsel for the accused does not appear because of his negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his Counsel since an accused in a criminal case should not suffer for the fault of his Counsel and in such a situation, the Court should appoint another Counsel as amicus curiae to defend the accused."
In Vishnu Agarwal Vs. State of U.P. and Another (Supra) an unreported decision 2011 STPL (WB) 171 SC collected from the webside of the Honourable Apex Court the Honourable Apex Court observed that:-
"it often happens that some times a case is not noted by the Counsel or his clerk in the cause list and hence, the Counsel does not appear. This is a human mistake and can happen to anyone. Hence, the High Court recalled the order dated 02.09.2003 and directed the case to be listed for fresh hearing. The aforesaid order recalling the order dated 02.09.2003 which has 11 been challenged in the Honourable Apex Court was maintained on the ground that Section 362 cannot be considered in a rigid and over-technical, manner to defeat the ends of justice and that the application filed by the petitioners was for recall of the order and not for review or alter of the same."
In M.S. Tirupathi Vs. C.H. Ramakrishna Rao and Another (Supra), the Hon'ble Judge observed:-
"While recalling its final judgment in a revisional application observed that in our adversarial system of law, no man can be condemned unheard. It is the reasonable opportunity of hearing in the due process of law is the hallmark of our Criminal Justice System. The Hon'ble single Judge has taken aid of the decidion of the Hon'ble Apex Court in Kalyani Baskar (Mrs.,) Vs M.S. Sampoornam (Mrs.) reported in (2007)2 SCC 258 where it was held: -"Fair trial includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed."
In the case of A.R. Artjulay Vs. R.S. Nayak reported in (1988) 2 SCC 602 Hon'ble Apex Court held:-
"No man should suffer cause because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules of procedures are the handmaid of justice and not the mistress of the justice. Ex debito justitia, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied."
In the decisions of B.N. Elias (Supra) the Hon'ble Court held:-
"Relevantly, the work alter or 'review' as appearing under Section 362 of the Code of Criminal Procedure is of extreme significance. The word 'alter' means 'to change or replace' whereas the word 'review' means 'a view already taken earlier is given second thought or a second or additional study or consideration of certain facts etc. or reexamination'. In case of both 'alter' and 'review', there is existence of one fact or aspect, which are replaced by altering or 12 reviewing or reexamination. Therefore, the existence of the aspect remains but the word 'recall' means to call back or to cancel or revoke. The existence of a particular aspect from a particular place is taken back creating a void condition and leaving nothing in the place wherefrom the matter has been recalled. 'Recall' is not equal to 'alter' or 'review'. So, In case of 'alter' or 'review' something available in the original position. But in case of 'recall' nothing is available in changed circumstances in the original position. Therefore, the term 'recall', in my humble opinion, may not come within the rigours of Section 362 of the Code of Criminal Procedure which relates to alteration or review of a final order.
Since the impugned order is a nullity' it means nothingness'. The term 'nothingness' means no order/zero. If this be so, the High Court is to revert back to the initial stage as if no order is passed on 08.04.2013. Thereby, it means the operation of Section 362 of the Code of Criminal Procedure does not come into play because it relates to a valid order only. Since, the impugned order is 'no order', so it is not valid and amenable to Section 362 of the Code of Criminal Procedure.
If a judgment has been pronounced without jurisdiction in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of process of Court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality that order becomes a nullity and the provisions of Section 362, Cr.P.C. would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment."
Moreover, in R. Rajeshwari Vs. H.N. Jagadish Hon'ble Apex Court Held:-
"In view of specific bar created under Section 362 in regard to exercise of jurisdiction of High Court to review its own order, held, ordinarily exercise of jurisdiction under Section 482 would be unwarranted - Only in some rare cases, High Court may do so where a judgement has been obtained from it by practising fraud - Herein, such a case has not been made out."13
The Learned Lawyer of the petitioner also placed before me a decision as reported in the matter of Sudakshina Chowdhury (2013)3 Cr L J Page 478. A careful examination of that decision, reveals that facts and circumstances are distinguishable inasmuch as therein order of anticipatory bail was challenged and not the regular bail but here the position is different.
It is equally true that offering opportunities to a defaulting party for an indefinite period will be unnatural justice instead of natural justice. That is why some times ex parte hearing is taken up and the order reaches finality. But if a defaulting party comes within the period of limitation or after giving explanation of delay, he should be given an opportunity of being heard to have all cards placed before the Court.
The question of cancellation of bail is involved in this case. It relates to the life and liberty of an accused. True there are laches on the part of the present petitioner no doubt. But he should not be penalized for such laches when he has come out after admitting the fact of their absence and convinced the court for being absent when the matter was called for hearing on two above noted dates. Justice should not be throttled at the alter of mere technicalities. Recall of an order creates a vacuum, as if no order is passed. Therefore, 14 the petitioner cannot succeed on the ground of nullity of order or order obtained by practising fraud. He succeeds only on the ground of natural justice.
So, on consideration of pros and cons of the matter and the decisions discussed above, I am of view that Justice demands the present petitioner should be heard to adhere to the principle of Audi Alteram Partem because neither his Lawyer was present nor any amicus curiae was appointed on the dates of hearing.
As such, the impugned order dated 06.08.2013 and 06.01.2014 are required to be recalled.
This being the position, the present revisional application is allowed. Order dated 06.08.2013 and 06.01.2014 stand recalled. The original revision CRM 470 of 2013 be heard afresh in presence of both sides.
In the given facts and circumstances of the case, the present petitioner must pay Rs. 10,000/- as costs to the complainant as a Condition Precedent.
Let the matter be posted for contesting hearing on 20.03.2014.
Urgent Photostat certified copies, if applied for, be supplied according to rules.
(Toufique Uddin, J.)