AI Structured Summary
Not yet generated for this judgment
Judgment
Government Industrial Tribunal [(1980) Supp SCC 420], Budhia Swain v. Gopinath Deb [(1999) 4 SCC 396], Municipal Corporation of Greater Mumbai v. Pratibha Industries Ltd. [(2019) 3 SCC 203], and Vikram Bakshi v. R.P. Khosla [2025 SCC OnLine SC 1783] and submitted that, in the said decisions, the Hon'ble Supreme Court, while considering the scope of the power to recall an order, has distinguished the exercise of such inherent or procedural jurisdiction from a review on merits, and has also considered the interplay between Section 362 of the Cr.P.C. and the constitutional jurisdiction of a High Court under Article 215 of the Constitution of India. It is therefore pleaded that, in the interests of justice and to prevent prejudice to the petitioner, this Court may exercise its inherent jurisdiction and recall the order dated 02.05.2025, so as to consider the Criminal Petition on its merits.
Per contra, learned counsel appearing for the respondent would submit that the impugned order was passed by this Court after hearing learned counsel for the petitioner and that, although there was a plea that the petitioner's case was covered by the order passed in respect of the company, the said aspect was not urged before the Court at the time of hearing. It is therefore submitted that the order was passed upon consideration of the submissions then placed before the Court. However, fairly, learned counsel submits that the Court may consider the matter on its merits and pass an appropriate order in exercise of its jurisdiction.
I have carefully considered the submissions of the learned counsel appearing for the parties and perused the material available on record.
In view of the aforesaid pleadings, the issue that arises for determination is whether the order dated 02.05.2025 passed in Criminal Petition No. 6270 of 2025 is liable to be recalled?
The specific plea of the petitioners is that there was an error in the passing of the order and that, since the order came to be passed without consideration of the matter on its merits, this Court may, in exercise of its inherent jurisdiction, recall the same, as the error being purely procedural, and thereafter consider the Criminal Petition on its merits.
The authorities relied upon by learned counsel for the petitioners are relevant to the issue under consideration. The relevant portions of the said judgments are extracted hereunder for a better appreciation of the legal position.
In Grindlays Bank Ltd. v. Central Government Industrial Tribunal [(1980) Supp SCC 420]
"13.The expression 'review' is used in two distinct senses, namely (1) a procedural review which is either inherent or implied in a court or Tribunal to set aside a palpably erroneous order passed under a misapprehension by it, and (2) a review on merits when the error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense that the Court in Narshi Thakershi's case held that no review lies on merits unless a status specifically provides for it. Obviously when a review is sought due to a procedural defect, the inadvertent error committed by the Tribunal must be corrected ex debito justitiae to prevent the abuse of its process, and such power inheres in every court or Tribunal".
Budhia Swain v. Gopinath Deb [(1999) 4 SCC 396],
"8.In our opinion a tribunal or a court may recall an order earlier made by it if i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and such lack of jurisdiction is patent, ii) there exists fraud or collusion in obtaining the judgment, iii) there has been a mistake of the court prejudicing a party or (iv) a judgment was rendered in ignorance of the fact that a necessary party had not been served at all or had died and the estate was not represented".
Municipal Corporation of Greater Mumbai v. Pratibha Industries Ltd. [(2019) 3 SCC 203],
"13.Also, in M.M. Thomas v. State of Kerala and Another, (2000) 1 SCC 666, this Court has held as follows:-
"The High Court as a court of record, as envisaged in Article 215 of the Constitution, must have inherent powers to correct the records. A court of record envelops all such powers whose acts and proceedings are to be enrolled in a perpetual memorial and testimony. A court of record is undoubtedly a superior court which is itself competent to determine the scope of its jurisdiction. The High Court, as a court of record, has a duty to itself to keep all its records correctly and in accordance with law. Hence, if any apparent error is noticed by the High Court in respect of any orders passed by it the High Court has not only power, but a duty to correct it".
Vikram Bakshi v. R.P. Khosla [2025 SCC OnLine SC 1783],
"34A. Having said that, the following exceptional circumstances may be identified, wherein a criminal court is empowered to alter or review its own judgment or a final order under Section 362 of Cr.P.C.
a. Such power is expressly conferred upon court by Cr.P.C or any other law for the time being in force or;
b. The Court passing such a judgment or order lacked inherent jurisdiction to do so or;
c. A fraud or collusion is being played on Court to obtain such judgment or order or;
d. A mistake on the part of Court caused prejudice to a party or;
e. Fact relating to non-serving of necessary party or death leading to estate being non-represented, not brought to notice of Court while passing such judgment or order".
The cumulative reading of the dicta of the above authorities indicates that, while the power of recall is distinct from review on merits and is ordinarily exercised only in exceptional circumstances, the Court may invoke its inherent procedural jurisdiction to recall an order where the proceedings suffer from a fundamental defect, including a patent lack of jurisdiction, fraud or collusion, a mistake of the Court causing prejudice to a party, or failure to serve a necessary party or to account for the death of a necessary party whose estate remains unrepresented. In the case of this Court, its status as a Court of record under Article 215 of the Constitution further enables it to correct its records in accordance with law. Thus, where a mistake attributable to the Court causes prejudice to a party, recall may be permissible; however, such power cannot be invoked merely to re-agitate the merits or correct an error of judgment in the guise of recall.
In the facts and circumstances of the case, and having regard to the petitioner's plea that the order was passed on the last working day before the Court's vacation and that the error occurred on account of the absence of proper consideration or application of mind, this Court is of the considered view that the procedural error is evident from the record. Since it is further pleaded that the order is causing prejudice to the petitioners, particularly in view of the order passed by a Co-ordinate Bench covering the petitioner's case, this Court is of the view that the circumstances fall within the scope of procedural review and, accordingly, the order is liable to be recalled.
Accordingly, the order passed in Crl.P.No.6270 of 2025 dated 02.05.2025 is recalled and the Criminal Petition is restored to file.