Mohan Singh and others vs State of Haryana and another

Ranjit Singh, J.—The applicant-petitioners had filed this petition for quashing of criminal complaint No. 496 of 2009 (Annexure P-1) and the summoning order dated 5.11.2008 (Annexure P-4). When this petition came up for hearing on 21.11.2011, none appeared for the petitioners. It was observed that none may be interested in pursuing the petition. The same was dismissed for non-prosecution.

Application has now been filed for recall of this order. Counsel for the petitioners was required to assist the Court about the maintainability of the petition for recall of an order passed in a quashing of criminal complaint. The counsel has placed before me a judgment in the case of Vishnu Agarwal Vs. State of U.P. and Another, , where difference between the recall and the review has been noted. This was a case where the counsel could not appear and the judgment was passed in his absence. Court directed recall of the order which was held proper. It was observed that this was not a case of review but recall of the order.

Hon''ble Supreme Court had earlier observed in Hari Singh Mann Vs. Harbhajan Singh Bajwa, 2000 (4) R.C.R. (Criminal) 650 that there is no provision in the Criminal Code to review the judgment. It is only to correct clerical or arithmetical error that an order can be interfered with as given in Section 362 of the Cr.P.C. It is also observed that there is no provision in Criminal Procedure Code to review the judgment and Section 482 Cr.P.C. cannot be taken to review the judgment. Reliance can also be placed on State of Orissa Vs. Ram Chander Agarwala and Others, The order dismissing the petition for default would be an order which would lead to final disposal of the case. Once the matter is finally disposed of, then in the absence of specific provision would become functus officio and disentitled to entertain fresh prayer. The Court is not to alter the judgment except as provided by Section 362 Cr.P.C.

Counsel for the applicant-petitioners has referred to a Full Bench decision of the Rajasthan High Court in Habu Vs. State of Rajasthan, AIR 1987 Raj 83. It is observed that power to review and recall are distinct powers. It is also observed that exercise of inherent powers can be used for exercise of furtherance of personal liberty and principle of audi alteram partem. These observations are made in the background that revision filed to challenge the conviction was dismissed on merits in the absence of the counsel. Law laid down in Hari Singh Mann''s case (supra) would have to be considered now. In view of the law laid down in Hari Singh Mann''s case (supra), it would govern the field. I am, thus, not inclined to review the impugned order.

The application is accordingly dismissed.