MANU/UP/0960/2017

IN THE HIGH COURT OF ALLAHABAD

Criminal Revision No. 232 of 2002
Decided On: 20.04.2017
Appellants: Habib and Ors.
Vs.
Respondent: State of U.P.
Hon'ble Judges/Coram:
Sangeeta Chandra, J.
Counsels:
For Appellant/Petitioner/Plaintiff: Vijay Shanker Mishra, R.B. Prasad, Shachi Kant Mishra
and Zafar Abbas
For Respondents/Defendant: Govt. Advocate and R.K. Yadav
ORDER
Sangeeta Chandra, J.
Ref: Criminal Misc. Recall Application No. 375762 of 2016:-
1. This application for recall has been moved alongwith an application for condonation
of delay for recall of judgment and order dated 7.11.2016 passed by the Hon'ble Mr.
Pramod Kumar Srivastava dismissing the criminal revision on merits without hearing the
counsel for the revisionist.
2. In the application for condonation of delay lack of knowledge has been stated and in
a supplementary affidavit in support of recall application on 6.3.2017, it has been stated
that the revisionists 6, 7, and 8 are accused of Case Crime No. 245-A of 1983 under
Section-147, 323, 149 and 325 I.P.C. P.S.-Kotwali, District-Mau and revisionist Nos. 1,
2, 3, 4 and 5 have expired. It has also been stated that the counsel for the revisionists
Late Shri Vijay Shankar Mishra died on 30th December 2014 and no information
regarding death of their counsel was received by the revisionists and therefore, when
the case was listed on 7.11.2016, no one could appear to argue the revision on their
behalf. It was only after the criminal revision was dismissed on merits with a direction
to communicate the judgment to the Lower Court immediately and the interim bail
granted to the accused/revisionist was cancelled and they were directed to surrender
before the Trial Court to serve their sentence that the revisionist came to know that the
criminal revision had been dismissed by this Court and moved a recall application
thereafter on 29.11.2016, which has been listed before this Court for orders.
3. The counsel for the revisionist has argued on the basis of judgment rendered by the
Hon'ble Supreme Court in the case of Bani Singh v. State of U.P. reported in
MANU/SC/0615/1996 : AIR 1996 SC Page 2439 and the case of Sukur Ali v. State of
Assam reported in MANU/SC/0155/2011 : AIR 2011 SC Page 1222 and the case of
Vishnu Agrawal v. State of U.P. and others reported in MANU/SC/0147/2011 : 2011 14
SCC Page 813 that an application for recall of order can be entertained and Section-362
of the Cr.P.C. cannot be treated as a bar for entertaining such recall application, on the
ground that liberty of the accused is a paramount consideration and technical

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procedures of law should not be utilized to defeat the ends of justice.
4 . I have gone through the judgments of the Hon'ble Supreme Court as well as the
judgment passed in Criminal Misc. Bail Application No. 7467 of 2012 (Hatam v. State of
U.P. and others) passed by this Court on 31.5.2013.
5 . The facts of the judgment in the case of Bani Singh as is well known related to
dismissing of a criminal appeal filed by the accused appellant against the order of
conviction and sentence by the Trial Court for non-prosecution. The Hon'ble Supreme
Court in the case of Bani Singh (Supra) held thus:-
"8. SUCH a view can bring about a stalemate situation. The appellant and his
lawyer can remain absent with impunity, not once but again and again till the
Court issues a warrant for the appellant's presence. A complaint to the Bar
Council against the lawyer for non-appearance cannot result in the progress of
the appeal. If another lawyer is appointed at State cost, he too would need the
presence of the appellant for instruction and that would place the Court in the
same situation. SUCH a procedure can, therefore, prove cumbersome and can
promote indiscipline. Even if a case is decided on merits in the absence of the
appellant, the higher Court can remedy the situation if there has been a failure
of justice. This would apply equally if the accused is the respondent for the
obvious reason that if the appeal cannot be disposed of without hearing the
respondent or his lawyer, the progress of the appeal would be halted.
In view of the position in law explained above, we are of the view that the High
Court erred in dismissing the appeal for non-prosecution simpliciter without
examining the merits. We, therefore, set aside the impugned order and remit
the appeal to the High Court for disposal on merits in the light of this
judgment. The appeal will stand allowed accordingly. Appeal allowed."
6. In so far as, the Sukur Ali v. State of Assam (Supra) is concerned, the said judgment
related to a criminal appeal decided by Guwahati High Court in the absence of the
counsel for the appellant accused where conviction was affirmed. In both these cases,
the Hon'ble Supreme Court observed that the Court should not decide a criminal appeal
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 case the counsel does not appear,
the Court should appoint another counsel as a amicus curiae to defend the accused, as
the life and liberty of a person is guaranteed under Article 21 of the Constitution, is a
fundamental right.
7 . In the case of Vishnu Agrawal v. State of U.P and another, a criminal revision was
listed in the High Court, and no one appeared on behalf of the revisionist, but the
counsel for the respondents appeared and judgment was rendered. Subsequently,
application was moved for recall of order dismissing the criminal revision as
infructuous. The High Court recalled the order and directed the case to be listed again
for fresh hearing. This order of the High Court was challenged in appeal before the
Supreme Court. The Hon'ble Supreme Court rejected the arguments of the appellant
based on the judgment of the Supreme Court in the case of Hari Singh Mann v.
Harbhajan Singh Bajwa MANU/SC/0665/2000 : AIR 2001 SC Page 43, relevant
paragraphs of the judgment rendered in the case of Vishnu Agrawal (Supra) are being
quoted herein below:-
"---Learned counsel for the appellant has relied on the decision of this Court in
Hari Singh Mann v. Harbhajan Singh Bajwa, MANU/SC/0665/2000 : AIR 2001

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SC 43, Para 10 of the said judgment states:
10."--- Section 362 of the Code mandates that 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. 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 officio and disentitled
to entertain a fresh prayer for the same relief unless the former order
of final disposal is set aside by a Court of competent jurisdiction in a
manner prescribed by law. The Court becomes functus officio the
moment the official order disposing of a case is signed. Such an order
cannot be altered except to the extent of correcting a clerical or
arithmetical error. The reliance of the respondent on Talab Haji
Hussains's case (MANU/SC/0028/1958 : AIR 1958 SC 376) (supra) is
misconceived. Even in that case it was pointed that inherent powers
conferred on High Courts under Section 561A (Section 482 of the new
code) has to be exercised sparingly, carefully and with caution and only
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 view the recommendations of the 41st 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 order other than a judgment."
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.
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
Yuktiheeney
Vichare tu Dharmahanni Prajayate"
which means:
"The Court should not give its decision based only on the letter of law.
For if the decision is wholly unreasonable, injustice will follow."
9. 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 v. State of West Bengal and Ors.
MANU/SC/0062/2009 : 2009(1) SCR 469, this Court made a distinction between
recall and review which is as under:-
"There is a distinction between...a review petition and a recall petition.
While in a review petition, the Court considers on merits whether there

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 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 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 v. Raghabendra Singh and Ors. [MANU/SC/1328/2007 :
2007(11) SCC 374] cancelling certain licences was passed without
giving 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."
8. I have also gone through the judgment and order dated 7.11.2016, which is sought
to be recalled by this application passed in Criminal Revision No. 232 of 2002 (Habib
and others v. State of U.P. and others), wherein the Hon'ble Judge has made
observations on the merits of the case and has recorded that he had perused the record
and also the judgment and order of the Trial Court and had found that the Trial Court
had accorded full opportunity to the accused revisionist after framing of charge and
then after completion of prosecution evidence and then passed the impugned judgment
dated 13.2.2002 which findings, it has been recorded in the judgment dated 7.11.2016
were passed on proper appreciation of evidence and the contention of both the parties.
This Court has observed that these findings are apparently correct and acceptable. From
the judgment and order dated 7.11.2016, it is apparent that this Court also carefully
went through the Lower Appellate Court order and recorded thus:-
"---List has been revised.
None is present."
The court of Additional Civil Judge (Jr.Div.)/Judicial Magistrate-Ist Class,
District Azamgarh had passed judgement dated 14.09.1995 in criminal case No.
335 of 1995, State v. Mukhtar and another, P.S. Mau, District Azamgarh (Mau),
by which accused (present revisionists) were convicted for the offences under
Sections 147, 323,/149, 325/149 IPC. Each of them were awarded one year's
R.I. for charge under Section 147 IPC, 6 month's R.I. and fine of Rs. 500/- for
charge under Section 323/149 IPC (in default of payment three month's
imprisonment) and punishment for a period of one years' R.I. with a fine of Rs.
1000/- (in default of payment of fine, an additional imprisonment for a period
of six months R.I.)
Against the said judgment criminal appeal No. 59 of 1995, Habib and others v.
State of U.P. was preferred, which was heard and dismissed by the court of
Additional District and Sessions Judge, Mau on 13.02.2002. Aggrieved by these
judgment of trial court as well as lower appellate court present revision has
been preferred by the accused of the original case.
From perusal of record, it is found that trial court had afforded full opportunity
of hearing to accused-revisionist after framing of the charge and then after
completion of prosecution evidences, it had afforded opportunity to adduce the
defence evidence, then it had passed impugned judgment dated 13.02.2002, in
which finding was given that accused-appellants have committed mar-peet and
charges are proved. The judgment of trial court is based on proper appreciation
of evidences and contentions of both the parties. These findings are apparently
correct and acceptable.

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 The lower appellate court had also afforded opportunity of hearing to
revisionists-appellants and independently appreciated the facts and evidences
and thereafter found that accused-appellants have committed mar-peet.
Although both the lower courts have separately appropriated the evidences, but
gave concurrent finding on facts regarding charged incident and found that
revisionist are liable to be convicted for the aforesaid offences. The concurrent
finding of fact, which is apparently acceptable and not erroneous or perverse
should not be interfered in exercise of revisional jurisdiction. There appears no
illegality or impropriety in the procedure carried out by lower courts or finding
of fact given by them. Therefore, impugned orders cannot be interfered in
revision.
Accordingly, in view of above, this revision is dismissed. The interim bail
granted to accused/revisionists are cancelled. They are directed to surrender
before trial court to serve the sentences.
The copy of this judgment be communicated to lower courts immediately.----"
9 . This Court feels that insofar as observations of the Hon'ble Supreme Court in the
case of Hari Singh Mann v. Harbhajan Singh Bajwa MANU/SC/0665/2000 : AIR 2001 SC
Page 43 are concerned as quoted hereinabove in Paragraph 6 of the judgment rendered
by the Supreme Court in the case of Vishnu Agrawal (Supra). The said observations
made in the case of Hari Singh Mann (Supra) are binding upon this Court. In view of
the law laid down by the Hon'ble Supreme Court itself under Article 141 of the
Constitution the judgment rendered in the case of Hari Singh Mann (Supra) was a
detailed judgment dealing with Section-362 specifically of the Criminal Procedure Code.
10. The Hon'ble Supreme Court in the case of Hari Singh Mann has relied upon the
judgment rendered in the case of State of Orissa v. Ram Chander Agrawala and others
MANU/SC/0179/1978 : (1976) 2 SCC Page 305, wherein the Hon'ble Supreme Court
was considering Section-369 of the Cr.P.C. as enacted in 1898 which provided that no
Court other than a High Court, when it has signed its judgment, shall alter or review the
same except as provided in Section-395 and Section-484 or to correct clerical error and
also the Section-362 of the Code of Criminal Procedure, which provided that unless
otherwise provided by the 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 the clerical or arithmetical error.
1 1 . The words "or in the case of High Court by letters patent or other instrument
constituting such High Court" which were found earlier in the corresponding
Section-369 of the old Code were omitted in the present Code. The Hon'ble Supreme
Court after considering Section-424 and 430 of the Code of Criminal Procedure as well
as Section-561(A) of the Code of Criminal Procedure came to the conclusion that none
of these Sections give power to the High Court to recall or review a final judgment. The
Hon'ble Supreme Court observed in Paragraph-15 as under:-
"It was next submitted that in any event Section 561A is wide enough to
include a power of review by the High Court. Section 561A of Criminal
Procedure Code runs as follows:
561-A. Nothing in this Code shall be deemed to limit or affect the
inherent power of the High Court to make such orders, as may be
necessary, to give effect to any order under this Code, or to prevent

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 abuse of the process of any court or otherwise to secure the ends of
justice.
The inherent power of the High Court is restricted to making such orders as
may be necessary, to give effect to any order under the Code or to prevent
abuse of the process of any court or otherwise to secure the ends of justice.
The scope of the section has been explained in the two decisions of the Privy
Council, which have been uniformly followed by this Court. In Emperor v.
Khwaja Nazir Ahmad MANU/PR/0007/1944 : AIR 1945 PC 18 : 46 Cri L J 413 :
1945 AL J 47, the Privy Council, repelling the view that Section561A of Criminal
Procedure Code gave increased powers to the Court which it did not possess
before that Section was enacted, observed that "it was not so" and proceeded
to state:
The section gives no new powers, it only provides that those powers
which the court already inherently possesses shall be preserved, and is
inserted as Their Lordships think lest it should be considered, that the
only powers possessed by the court are those expressly conferred by
the Criminal Procedure Code and that no inherent power had survived
the passing of that Act.
Reiterating the same view the Privy Council in Lala Jairam Das v. Emperor
MANU/PR/0005/1945 : 72 IA 120 : AIR 1945 PC 94 : 46 Cri L J 662 observed
that Section-561-A of the Code confers no new powers. It merely safeguards all
existing inherent powers possessed by a High Court necessary (among other
purposes) to secure the ends of justice. This Court in State of Uttar Pradesh v.
Mohammad Naim MANU/SC/0062/1963 : (1964) 2 SCR 363, 370 : AIR 1964 SC
703 : (1964) 1 Cri L J 549 cited with approval the two decisions of the Privy
Council referred to above."
1 2 . The Supreme Court in the aforesaid case of State of Orissa v. Ram Chander
Agrawala held that once an order has been passed by the High Court on merits of the
case either in appeal or revision, the judgment of the High Court has replaced that of
the Lower Court in those Cases, the High Court would not be competent to review or
revise its own judgment. The Court also considered the observations made in the case
of U.J.S. Chopra v. State of Bombay MANU/SC/0028/1955 : (1955) 2 SCR Page 94, but
distinguished them on the ground that the view expressed by the Privy Counsel in Jai
Ram Das's case that alteration by the High Court of its judgment is prohibited by
Section-369 of the Code was not brought to the notice of the Court in the case of U.J.S.
Chopra (Supra). It observed thus:-
"Later decisions of this Court particularly the decision in Superintendent and
Remembrancer of Legal Affairs, W. B v. Mohan Singh MANU/SC/0223/1974 :
(1975) 3 SCC 706 : 1975 SCC (Cri) 156 : AIR 1975 SC 1002 held that when
once the judgment has been pronounced by the High Court either in exercise of
its appellate or its revisional jurisdiction, no review or revision can be
entertained. In the Full Bench decision of the Allahabad High Court in Raj
Narain v. The State MANU/UP/0075/1959 : AIR 1959 All 315 : 1959 All L J 56 :
1959 Cri LJ 543, Moothem, J. observed:
"It has commonly been assumed, even it would appear by the Privy
Council in Jairam Das's case (Supra), that this section applies also to
the judgment of the appellate Court but it is clear that that it is not so:

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 U.J.S. Chopra v. State of Bombay MANU/SC/0028/1955 :
(1955) 2 SCR 94 : AIR 1955 SC 633 : 1955 Cri LJ 1410."
13. In view of the law settled by the Hon'ble Supreme Court in the case of State of
Orissa v. Ram Chander Agrawala (Supra) and in the case of Hari Singh Mann (Supra), it
is clear that this Court cannot pass any order to review its own order passed on merits
of a case due to clear prohibition given under Section-362 of the Cr.P.C.
14. Learned counsel for the revisionist applicant has relied upon the observations made
in the case of Vishnu Agrawal (Supra) by the Hon'ble Supreme Court that although
review cannot be done of an order passed on merits, a recall application can be
entertained. The reliance placed by the revisionist on the order passed in the case of
Vishnu Agrawal is mis-conceived, what cannot be done directly cannot be done
indirectly also.
15. In the case at hand before me, there is a judgment of a co-ordinate Bench deciding
the criminal revision on merits, and after perusal of the record even in the absence of
the counsel for the revisionist. It is not an order dismissing the criminal revision as
infructuous or in limine.
16. I feel bound by the law as equity always follows the law and not otherwise.
17. Section-362 of the Cr.P.C. lays down in clear terms, the following mandate which is
unambiguous in its language and expresses the intention of the legislature very clearly.
Section-362 of Cr.P.C. is being quoted hereinbelow:
"362. Court not to alter judgment:- 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."
1 8 . For the facts and reasons and the settled position in law as mentioned herein
above, this Court finds itself unable to recall judgment and order dated 17.11.2016.
19. The application for recall is rejected.
20. Let this order be communicated to the Lower Court immediately by the Registry and
the directions given by this Court in its judgment and order dated 17.11.2016 be
complied with forthwith.
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