VISHNU AGARWALversusSTATE OF U.P. AND ANR.

                      [2011] 3 S.C.R. 197


                     VISHNU AGARWAL                                  A
                                v.
                  STATE OF U.P. AND ANR.
             (Criminal Appeal No. 1323 of 2004)

                     FEBRUARY 23, 2011
                                                                     B
[MARKANDEY KATJU AND GYAN SUDHA MISRA, JJ.]

      Administration of justice: Adjudication of case in the
absence of counsel - In a revision petition, no one appeared
for the revisionist - Order passed - Application for recall of       C
the order alleging that the case was not in the main list of the
High Court and, therefore, the counsel for the revisionist could
not note the case and could not appear - High Court recalled
the order - On appeal, held: No doubt, s.362 , Cr.P.C.
mandates that no court when it has signed its judgment or            D
final order disposing of the case shall alter or review the same
except to correct a clerical or arithmetic error- However, s.362
cannot be considered in a rigid and over technical manner
to defeat the ends of justice - The court should not give its
decision based only on the letter of the law, for, if the decision   E
is wholly unreasonable, injustice will follow - Moreover, the
application filed by the revisionist was an application for recall
of order and not for review - While in a review petition, the
court considers on merits whether there is an error apparent
on the face of the record, in a recall petition, the court does      F
not go into the merits but simply recalls an order which was
passed without giving an opportunity of hearing to an affected
party- Therefore, there was no error in law in the order of the
High Court in recalling its order- Code of Criminal Procedure,
1973 - s.362.
                                                                     G
   Asif Kumar v. State of West Bengal and Ors. 2009 (1)
SCR 469 - relied on.


                               197                                   H
    198       SUPREME COURT REPORTS              (2011] 3 S.C.R.


A       Harl Singh Mann v. Harbhajan Singh Bajwa AIR 2001
    SC 43 - referred to.

                          Case Law Reference:

          AIR 2001 SC 43           referred to             Para 6
B
          2009 (1) SCR 469         relied on               Para 9

        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 1323 of 2004.

c       From the Judgment and Order dated 29.01.2004 of the
    High Court of Judicature at Allahabad in Criminal Revision No.
    136 of 1998.

                                   WITH

D Criminal Appeal No. 875 of 2006.

       Manoj Swarup, Lalita Kohli, Abhishek Swarup (Manoj
  Swarup & co·.), Siddhartha Dave, Vibha Datta Makhija,
  Sandeep Singh and Manoj Swarup & Co. for the appearing
E parties.                                   ·

          The following order of the Court was delivered

                              ORDER

F   Criminal Appeal No. 1323/2004

          1. Heard learned Counsel for the parties.

      2. This appeal has been filed against the impugned
  Judgment of the Allahabad High Court dated 29.1.2004 in
G Criminal Revision No. 136/1998.

        3. It appears that the aforesaid Criminal Revision was
  listed in the High Court on 2.9.2003. No one appeared on behalf
  of the Revisionist, though the Counsels for respondents
H appeared. In these circumstances, the judgment was passed.
  VISHNU AGARWAL v. STATE OF U.P. AND ANR.                            199


     4. Subsequently, an application was moved for recall of the · A
Order dated 2.9.2003 alleging that the case was shown in the
computer list and not in the main list of the High Court, and
hence, the learned Counsel for the Revisionist had not noted
the case and hence he did not appear.
                                                                            8
     5. It often happens that sometimes 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 2.9.2003 and directed the case to be listed for fresh
hearing. The aforesaid order recalling the order dated 2.9.2003             C
has been challenged before us in this appeal.

     6. Learned Counsel for the appellant has relied on the
decision of this Court in Hari Singh Mann Vs. Harbhajan
Singh Bajwa AIR 2001 SC 43. Para 10 of the said judgment · D
states:

            "Section 362 of the Code mandates that llo Court,
     when it has signed its judgment or final order disposing
     of a case shall alter or review the same except to correct E
     a clerical or arithmetical error. The Section is based on
     an acknowledged principle of law that once a matter is
     finally disposed of by a Court, the said 'court in the .
   · absence of a specific statutory provision becomes functus
                                                     a
     officio and disentitled· to entertain fresh prayer.        for
                                                                the ·. F•
  .. sa1ne reliefunless the former order of final dispo,s~li~ ~et
     aside ·by a Court of c6mpeterit'jurisdiction'il:ra manner
    .prescribed by law. The Court becomes.f!.Jnctus bfficio the . ·
     moment the official·orderdisposingof a ca.se        is .
                                                           signed ..
     Such an order cannot be altered exc~ptto ·the exten't of •
     correcting .a cierical or arithmetical ,errot. The r~liance of G
     the respondent cin Talab Haji Hussain's case (AIR 1958
     SC 376)(supra) is .misconceived. Even in that case it was
     pointed that inh.erent powers conferred on High Courts ·
     under Section S61 A( Section 482 ofthe new Code) has to
   . be exercised sparingly; <:;arefulfy and with caution and only. H


                         k"''   •   ·,.   ·~   ...
    200        SUPREME COURT REPORTS                  [2011] 3 S.C.R.


A         where such exercise is justified by the tests specifically laid
          down in the section itself. It is not disputed that the petition
          filed under Section 482 of the Code had been finally
          disposed of by the High Court on 7.1.1999. The new
          Section 362 of the Code which was drafted keeping in
B         view the recommendations of the 41 st Report of the Law
          Commission and the Joint Select Committees appointed
          for the purpose, has extended the bar of review not only
          to the judgment but also to the final orders other than the
          judgment."
c        7. Learned Counsel for the appellant Mr. Manoj Swarup
    submitted that in view of the aforesaid decision, the High Court
    erred in law in recalling the Order dated 2.9.2003. We regret
    we cannot agree.

D         8. In our opinion, Section 362 cannot be considered in a
    rigid and over technical manner to defeat the ends of justice.
    As Brahaspati has observed :

          "Kevalam Shastram Ashritya Na Kartavyo Vinirnayah

E         Yuktiheeney Vichare tu Dharmahaani Prajayate"

          which means:

         "The Court should not give its decision based only on the
F   letter of the law.

          For if the decision is wholly unreasonable, injustice will
    follow."

       9. Apart from the above, we are of the opinion that the
G application filed by the respondent was an application for recall
  of the Order dated 2.9.2003 and not for review. In Asit Kumar
  Vs. State of West Bengal and Ors. 2009(1) SCR 469, this
  Court made a distinction between recall and review which is
  as under:-
H
   VISHNU AGARWAL v. STATE OF U.P. AND ANR.                    201


              "There is a distinction between ...... a review petition A
        and a recall petition. While in a review petition, the Court
        considers on merits whether there is an error apparent on /
        the face 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 B
        affected party. We are treating this petition under Article
        32 as a recall petition because the order passed in the
        decision in All Bengal Licensees Association Vs.
        Raghabendra Sing th & Ors. [2007(11) SCC 374)
        cancelling certain licences was passed without giving         c
        opportunity of hearing to the. persons who had been
        granted licences."

       10. Hence, we see no error in the impugned order passed
· by the High Court.
                                                                      D
        11. The appeal fails and is accordingly dismissed.

 Crl. Appeal No. 875 of 2006

      12. The Appeal is dismissed as having become
 infructuous.                        ·                                E

 D.G.                                         Appeals dismissed.




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