Calcutta High Court (Appellete Side)
Ranjeet Singh vs Unknown on 22 September, 2023
22.09.2023
3
SB
Ct. No.236
CRR 2373 of 2008
CRAN 2 of 2023
In the matter of : Ranjeet Singh
Mr. Subir Banerjee
Ms. Dipanwita Das ... for the petitioner
Mr. Surajit Basu
Mr. Manoj Kurmi
Ms. Barnali Mukherjee ... for the O.P. No. 2
Mr. Suman De ... for the State
In Re : CRAN 2 of 2023
1. This is an application filed by Sri Munna Rajak, the opposite
party no. 2 in the criminal revision.
2. By filing this application Mr. Rajak is seeking an order to
recall the final order passed on 30.11.2022.
3. It is contended by Mr. Basu, learned counsel appearing on
behalf of the applicant / opposite party no. 2 that despite there
being a specific direction to the petitioner to serve notice upon the
opposite parties, it was not complied with and the application was
disposed of in absence of opposite parties.
4. Mr. De, learned counsel representing the State submits that
State neither appeared, nor was given an opportunity to produce
the case diary.
5. To circumvent the statutory provision as laid down under
Section 362 of Code of Criminal Procedure, Mr. Basu relies upon a
judgement in Vishnu Agarwal vs. State of Uttar Pradesh and
Another reported in (2011)14 Supreme Court Cases 813 where
the Hon'ble Apex Court in paragraphs 6, 7 & 8 held ;
"6. In our opinion, Section 362 cannot be considered in a
rigid and overtechnical manner to defeat the ends of justice. As
Brahaspati has observerd :
"Kevalam Shastram ashritya na kartavyo vinirnayah
yuktiheeney vichare tu dharmahaani prajayate"
which means:
"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."
"7. Apart from the above, we are of the opinion that the
application filed by the respondent was an application for recall
of the order dated 2-9-2003 and not for review. In Asit Kumar Kar v. State of W.B. this Court made a distinction between recall and review which is as under :
"6. There is a distinction ... a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the fact 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.
7. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Excise Licensees Assn. v. Raghabendra Singh cancelling certain licences was passed without giving an opportunity of hearing to the persons who had been granted licences."
"8. Hence, we see no error in the impugned order passed by the High Court. The appeal fails and is accordingly dismissed."
6. By the said judgement the order of High Court recalling the final order was challenged before the Hon'ble Supreme Court and the Hon'ble Supreme Court did not find any fault with that action on the part of the High Court.
7. To refute such submission Mr. Banerjee, learned counsel representing the petitioner submits that the fact of Vishnu Agarwal Case (supra) is not in pari materia with the fact of this case. In Vishu Agarwal Case (supra), learned counsel for the petitioner failed to take note of the fact as the matter had not appeared in the main list though it was in the computer list.
8. Here the applicant was in the know that the matter was in the list for a considerable period of time, therefore, the judgement passed in Vishnu Agarwal (supra) cannot be used as precedent.
9. It is further submitted by Mr. Banerjee, that once the final order is passed in view of Section 362 of the Code of Criminal Procedure, the Court becomes functus officio and does not enjoy the jurisdiction to recall the final order.
10. To buttress his point, Mr. Banerjee, places his reliance on the judgement of the Hon'ble Apex Court in the State of Madhya Pradesh vs. Man Singh reported in (2019) 10 SCC 161 wherein it is held :-
"6. This order is challenged before us. At the outset, we note that the manner in which the learned Judgeentertained the petition under Section 482 CrPC is highly improper and uncalled for. There is no power of review granted to the courts under CrPC. As soon as the High Court had disposed of the original revision petition, upheld the conviction, reduced the sentence to the period already undergone and enhanced the fine, it becamse functus officio and, as such, it could not have entertained the petition under Section 482 CrPC for altering the sentence.
7. It is well settled law that the High Court has no jurisdiction to review its order either under Section 362 or under Section 482 CrPC. The inherent power under Section 482 CrPC cannot be used by the High Court to reopen or alter an order disposing of a petition decided on merits. After disposing of a case on merits, the Court becomes functus office and Section 362 CrPC 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. Recall of judgment would amount to alteration or review of judgement which is not permissible under Section 362 CrPC. It cannot be validated by the High Court invoking its inherent powers."
11. This revisional application was filed in the year 2008 and it could be disposed of only on 30.11.2022. The petitioner who preferred this application was represented and it is the fact that opposite parties were not represented.
12. The opposite parties had the obligation to remain vigilant and to appear before the Court when the matter was taken up for hearing. Both of the opposite parties were in the know that the matter was running in the list.
13. Be that as it may, with the passing of final order this Court has become functus officio and keeping in mind the provision of Section 362 of Code of Criminal Procedure, I am not inclined to recall the order passed while adjudicating the revisional application.
14. With this observation, the application being CRAN 2 of 2023 is disposed of.
(Siddhartha Roy Chowdhury, J.)