Time and again there has been a dilemma in front of Court due to various interpretations of provisions. In 2008, SC set aside the order of Madhya Pradesh HC wherein it quashed the criminal proceeding in a dowry case and reiterated that ‘courts cannot alter or review their own judgement or the final orders after it has been signed but the same can be done in order to correct the clerical or arithmetical mistakes.’ A bench comprising of Justice C K Thakker and D K Jain clarified that ‘as soon as the judgement is pronounced or the order has been made by Court then, in that case, it becomes functus officio, i.e. court ceases to have control over the case and hence, do not have power to review, alter or interfere with it in any manner.’ The ruling was passed by the Apex Court while entertaining an appeal filed by Sunita Jain challenging the HC’s decision wherein they quashed the criminal proceedings initiated against her husband and her parents for dowry harassment. She also contended that HC has quashed the proceedings on the ground that both the parties reached an amicable settlement but such was refused by her. Also, she asserted that the same was quashed despite SC dismissing the plea of accused and that HC maintained that it can review its plea.[1]
SC held that Court has the power of quashing a criminal proceeding only in rarest of the rare cases that too with due diligence.[2] The court cannot be justified on the ground of embarking inquiry as to the reliability or otherwise as stated in FIR or complaint. Courts possess this power to exercise extraordinary powers but not in an arbitrary jurisdiction based on their own whims and fancies.
Also, in the series, Justice Devadas of Madras HC recalled an order before suggesting for mediation between rape victims and convicts. Earlier when the orders were issued, it raised huge dissent and criticism from legal fraternity calling it a too liberal approach and a bad precedent. Also, a division bench of the same court recalled and deleted two paragraphs from the judgment delivered earlier regarding the reason to be cited for seeking information under RTI application. Amendment was done on the ground that the act itself mandates that no reason is necessary to seek information. Therefore, it has gathered conscience on the position of law as far as recalling of order is concerned.
Jayalalithaa’s Case
The present case of disproportionate assets involving Chief Minister Jayalalithaa in Karnataka HC, rescinded the question of if a court suo moto able to revisit its judgment, after claims of arithmetical errors in the judgement surfaced. This leads to the question as to when can a court recall its judgement and under what circumstances? Various SC and HC judgements have delved into this facet by interpreting the sections of IPC and CrPC.
Antulay v. Nayak[3]
A 7-member constitution bench of the Apex Court in the judgement highlighted the powers of Court to recall its judgment in exceptional circumstances. The injustice perpetrated should be corrected by following the principle of ‘actus curiae neminem gravabit’ meaning; an act of Court shall prejudice no one. The Odisha HC in State of Orrisa v. Janamohan Das expanded the principle set in Antulay v. Nayak and emphasized that there is a prerequisite of ‘substantial injury to the suitor to recall an order’. Court reiterated;
“While conceding the power of recall available to this court, we would say that the same would be exercisable only in exceptional cases where the mistake committed by Court is palpable and is such which, by its own force, has caused substantial injury to a suitor”.[4]
Though the powers regarding recalling are settled there are separate opinions on the same. Some claim that when a matter is a consequence of statutory procedure, the HC will come in conflict with the provisions of the CrPC and hence, cannot exercise powers under section 482 to recall order. Under Section 362 of CrPC, it bars any kind of modification in order except minor clerical or arithmetical errors. Concerns were raised in Jayalalithaa’s case as little changes in arithmetical terms can drastically change the output and hence, it is suggestive to take such into consideration.
The Bench comprising of Justices B.S. Chauhan, J. Chelameswar, and M.Y. Eqbal, in Kushalbhai Ratanbhai Rohit & Ors v. The State of Gujarat[5] asserted that in certain circumstances the Order can be recalled or altered even if it was dictated in the open Court or the draft copy was signed.
The petition was filed against the interim order passed by the Gujarat HC. The Petitioners were Police Constables who were in charge of escorting an accused in Narcotics Case. The petitioners were found guilty for the offence punishable under Section 222 IPC.
The order was dictated in open Court thereby acquitting the petitioners, was recalled by Court suo moto, and directed the appeal to be heard again. The Order was recalled for Court to examine the issue further. Petitioners asserted that Section 362 CrPC bars court to call, recall or review any judgment or order passed in a criminal case once it has been pronounced and signed.
The court relied on its own judgment of Sangam Lal v. Rent Control and Eviction Officer, Allahabad & Ors.[6] wherein Court concluded that “until a judgment is signed and sealed after delivering in Court, it is not a judgment and it can be changed or altered at any time before it is signed and sealed.” It further emphasized on Surendra Singh & Ors. v. State of U.P[7] which held;
“Now up to the moment the judgment is delivered Judges have the right to change their mind. There is a sort of ‘locus paenitentiae’ and indeed last minute alterations often do occur. Therefore, much a draft judgment may have been signed beforehand, it is nothing but a draft till formally delivered as judgment of Court. Only then does it crystallize into a full-fledged judgment and become operative.”
Court asserted that no exception can be taken to the procedure adopted by the HC and remarked;
“A Judge’s responsibility is very heavy, particularly, in a case where a man’s life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture. Therefore, one cannot assume that the Judge would not have changed his mind before the judgment become final”.
Apex Court in Atul Shukla v. The State of Madhya Pradesh & Anr.[8], while setting aside the order of HC under Section 482 of CrPC held that an application for review or modification could not have been entertained.
A man was accused of offences under Section 364 and 323 read with Section 34 of IPC. He approached the Madhya Pradesh HC for quashing of FIR. The court dismissed the petition and thereafter, the accused filed another petition for reviewing, recalling, and modifying the order, allowed by Court.
The complainant moved to the SC against the order contending that the HC could not have entertained the subsequent petition for review or modification as barred by Section 362 of the CrPC. The court allowed the appeal and the bench comprising Justice DY Chandrachud and Justice Hemant Gupta remarked:
“The HC while dismissing the petition under Section 482 observed that it would be open to the second respondent to pursue his remedies after framing of the charge. In view of the specific bar which is contained in Section 362, we are of the view that the impugned order of HC is unsustainable. Such an application for review or modification could not have been entertained.”
SC in Dr. Nallapareddy Sridhar Reddy v. The State of Andhra Pradesh & Ors.[9], asserted that a trial court can exercise its powers of altering or adding charges under section 216 of the CrPC even after the completion of evidence, arguments, or reserving of judgment. In the appeal, the bench comprising Justices Dhananjaya Y. Chandrachud and Hrishikesh Roy cited earlier decisions and observed that Section 216 provides Court an exclusive and wide-ranging power to change or alter any charge.
“The words “at any time before judgment is pronounced” in Sub-Section (1) empowers Court to exercise its powers of altering or adding charges even after the completion of evidence, arguments and reserving of the judgment. The alteration or addition of a charge may be done if in the opinion of Court there was an omission in the framing of charge or if upon prima facie examination of the material brought on record. The test to be adopted by Court is that the material brought on record needs to have a direct nexus with the ingredients of the alleged offence. Court must exercise its powers judiciously and ensure that no prejudice is caused to the accused and that he is allowed to have a fair trial.”
[1] Court cannot alter, review its own judgement arbitrarily: SC, Outlook India, (May 30, 2020, 3:00 P.M.), https://www.outlookindia.com/newswire/story/court-cannot-alter-review-its-own-judgement-arbitrarily-sc/539639.
[2] Court cannot alter, review its own judgement arbitrarily: SC, Economic Times, (May 30, 2020, 3:05 P.M.), https://economictimes.indiatimes.com/news/politics-and-nation/court-cannot-alter-review-its-own-judgement-arbitrarily-sc/articleshow/2738586.cms?utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst.
[3] R.S. Nayak v. A. R Antulay, (1984) 2 SCC 183.
[4] State of Orrisa v. Janamohan Das, 1992 SCC OnLine Ori 81.
[5] Kushalbhai Ratanbhai Rohit & Ors v. The State of Gujarat, (2014) 9 SCC 124.
[6] Sangam Lal v. Rent Control and Eviction Officer, Allahabad & Ors., AIR 1996 All 221.
[7] Surendra Singh & Ors. v. State of U.P, AIR 1954, SC 194.
[8] Atul Shukla v. The State of Madhya Pradesh & Anr., 2019 SCC OnLine SC 960.
[9] Dr. Nallapareddy Sridhar Reddy v. The State of Andhra Pradesh & Ors., MANU/SC/0057/2020.
This article is written by Naina Agarwal, Second year B.A LL.B (Hons) student at Rajiv Gandhi National University of Law, Patiala.
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