Criminal Courts Cannot Recall Or Review Their Own Judgments; Supreme Court

Supreme Court Ruling on Criminal Courts’ Power to Review Judgments

The Supreme Court of India recently ruled that Criminal Courts cannot review or recall their judgments except to correct clerical or arithmetical errors, while setting aside a Delhi High Court order that had reopened perjury proceedings in a corporate dispute.

A Bench of Chief Justice B. R. Gavai and Justice Augustine George Masih set aside the High Court order that had recalled its earlier decision dismissing a petition for initiating perjury proceedings in a long-running dispute.

“The Criminal Courts, as envisaged under the Cr. P. C, are barred from altering or reviewing their own judgments except for the exceptions which are explicitly provided by the statute, namely, correction of a clerical or an arithmetical error that might have been committed or the said power is provided under any other law for the time being in force. As the courts become functus officio the very moment a judgment or an order is signed, the bar of Section 362 Cr. P. C becomes applicable, this, despite the powers provided under Section 482 Cr. P. C which, this veil cannot allow the courts to step beyond or circumvent an explicit bar,” the Supreme Court observed.

Background Facts

The Bakshi and Khosla Groups entered into a December 2005 agreement to develop a resort at Kasauli through Montreaux Resorts Private Limited. A March 2006 agreement gave Vikram Bakshi a 51% stake and placed Vinod Surha and Wadia Prakash on the board.

Dispute Over Shareholding

• Sonia Khosla claimed her shareholding was reduced from 49% to 36%.
• She filed a company petition before the Company Law Board in 2007 alleging oppression and mismanagement.
• She alleged that AGM minutes filed by the Bakshi Group were forged and sought prosecution for perjury under Section 340 Cr. P. C, first before the Company Law Board and later the High Court.

Supreme Court’s 2014 Direction

In 2014, the Supreme Court directed that both the company petition and the perjury application be decided by the Company Law Board (now National Company Law Tribunal) and restrained the High Court from proceeding further.

High Court Proceedings and Recall

• In 2019, R. P. Khosla filed another application in the High Court alleging that the Bakshi Group had filed a false counter-affidavit in related contempt proceedings.
• The High Court dismissed it in August 2020, citing the 2014 Supreme Court order.
• The Khosla Group then sought recall, arguing that the Company Petition had been withdrawn in February 2020 but the fact was not placed before the court earlier.
• The High Court accepted this and recalled its judgment on May 5, 2021, prompting the present appeal.

Arguments Presented

The Khosla Group defended the High Court’s order, arguing that it had exercised procedural review to correct a factual mistake and had not conducted a substantive review of the case.

Legal Provisions and Judicial Interpretation

The law relating to the power of a Criminal Court to review or alter its own judgment or order is governed by Section 362 of the Criminal Procedure Code (Cr. P. C), which is equivalent to Section 403 of the Bhartiya Nagrik Suraksha Sanhita, 2023.

Text of Section 362 Cr. P. C

“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.”

Comparison with the Code of Civil Procedure

The analogous provision of this Section 362 is found in Section 152 of the Code of Civil Procedure, 1908. However, this section permits corrections of only clerical or arithmetical mistakes or errors arising from accidental slips or omissions. The scope is very much restricted and cannot go beyond the correction of accidental slips or omissions.

Judicial Interpretation by the Supreme Court

The comparison of the power of review of a Civil Court vis-à-vis the power of a Criminal Court to review or recall its own judgment or order arising out of criminal proceedings has been clarified by numerous decisions of the Supreme Court of India. These judgments have consistently held that Criminal Courts become functus officio upon pronouncement of the judgment and are barred from review except to correct clerical or arithmetical mistakes.

Conclusion

Thus, the law on the issue can be summarized as follows:

• The Criminal Justice Delivery System does not empower the court to add or delete any words after pronouncement of the judgment.
• Only clerical or arithmetical errors can be corrected under Section 362 Cr. P. C.
• A clerical or arithmetical error is an error occasioned by an accidental slip, apparent on the face of the record, and not dependent on argument or disputation.
• An arithmetical error is a mistake in calculation, and a clerical error is a mistake in writing or typing.

Legal Position

Case: Sankatha Singh Vs. State of U.P. (1962 AIR 1208)

In “Sankatha Singh Vs. State of U.P.” (1962 AIR 1208), when a Criminal Appeal came for hearing before the Trial Court, the Trial Court dismissed the appeal, noticing that the appellants had been absent and their counsel had not appeared to argue the appeal. The Court also observed that it had perused the Judgment of the Magistrate and seen the record, finding no ground for interference.

An application was filed before the Appellate Court for restoration of the Appeal which was allowed by the Learned Sessions Judge. However, when the Appeal was again listed for hearing, the Learned Judge took the view that the Appellate Court had no power to review or restore an Appeal which had been disposed of. The Appeal was dismissed. The Criminal Revision was filed in the High Court, which too was dismissed.

The Supreme Court in the above case considered Section 369 of the Criminal Procedure Code, 1898 (now Section 362 of the Criminal Procedure Code, 1973). The Hon’ble Supreme Court held that Section 369 of the Code prohibited the Courts from reviewing or altering its Judgment.

“It has been urged for the appellants that Shri Tej Pal Singh could order the rehearing of the appeal in the exercise of the inherent powers… Inherent powers cannot be exercised to do what the Code specifically prohibits the court from doing… when Section 369 of the Code definitely prohibited the court’s reviewing or altering its judgment, he had no jurisdiction to consider the point raised and to set aside the order dismissing the appeal and order its rehearing.”

Case: Smt. Sooraj Devi Vs. Pyare Lal & Anr. (AIR 1981 SC 736)

In “Smt. Sooraj Devi Vs. Pyare Lal & Anr.” (AIR 1981 SC 736), Section 362 Cr. P. C. came under consideration. The Hon’ble Supreme Court laid down:

“The appellant points out that he invoked the inherent power of the High Court saved by Section 482… It is true that the prohibition in Section 362 against the court altering or reviewing its Judgment is subject to what is ‘otherwise provided by this Court or by any other law for the time being in force’… The inherent power of the Court is not contemplated by the saving provision contained in Section 362 and, therefore, the attempt to invoke that power can be of no avail.”

Law Settled on Criminal Court’s Power to Recall or Review Judgment

• A Criminal Court has no power to recall or review its own Judgment.
• The only permissible action is to correct or rectify clerical errors under Section 403 BNSS (Section 362 CrPC).

Case: Simrikhia Vs. Dolley Mukherjee & Chhabi Mukherjee & Anr. (1990) 2 SCC 4379

In this case, the Court referred to earlier judgments and reiterated that the inherent power of the High Court cannot override the bar of review under Section 362 CrPC.

“The inherent jurisdiction of the High Court cannot be invoked to override bar of review u/s 362… The Court is not empowered to review its own decision under the purported exercise of inherent power.”

Case: State of Kerala Vs. M. M. Manikantan Nair (2001) 4 SCC 752

A Three-Judge Bench of the Supreme Court held that Cr. P. C. does not authorize the High Court to review its Judgment or Order passed in appellate, revisional, or original jurisdiction. Section 362 Cr. P. C. explicitly prohibits such review except to correct clerical or arithmetical errors.

Case: Hari Singh Mann Vs. Harbhajan Singh Bajwa & Ors. (2001) 1 SCC 169

The Supreme Court reiterated that once a matter is finally disposed of, the court becomes functus officio and cannot entertain fresh prayer for the same relief.

Case: State Vs. K.V. Rajendran & Ors. (2008) 8 SCC 673

The Supreme Court again discussed Sections 362 and 482 CrPC, observing:

“No court which has signed its judgment and final order disposing of a case, shall alter or review the same except to correct clerical or arithmetical error save as otherwise provided by the court.”

Case: Sanjeev Kapoor Vs. Chandana Kapoor & Ors. (2020) 13 SCC 172

It was reiterated that Section 362 Cr. P. C. imposes an embargo on a Criminal Court to alter or review its own Judgment. Review or alteration is permissible only if:

• Explicitly provided by the Cr. P. C. itself, or
• By any other law in force.

Case: Grindlays Bank Ltd. Vs. Central Government Industrial Tribunal & Ors. (1980 Supp SCC 420)

The Supreme Court differentiated between:

Case: Budhia Swain & Ors. Vs. Gopinath Deb & Ors. (1999) 4 SCC 396

The Supreme Court clarified grounds on which a Criminal Court may recall or review its Judgment:

• Proceedings suffer from an inherent lack of jurisdiction.
• Fraud has been played upon the Court to obtain the order.
• Mistake of the Court causing prejudice to a party.
• Non-service to a necessary party or death of a party whose estate was not represented.

These exceptions apply only if such grounds were not available during the original action.

Case: Ganesh Patel Vs. Umakant Rajoria (2022 SCC OnLine SC 2050)

The Hon’ble Supreme Court held that an application for recall seeking a procedural review (not substantive review) is permissible. The High Court was justified in recalling an earlier order passed in absence of the Respondent based on false information.

Summary of Jurisprudence Under Section 362 Cr. P. C.

• Criminal Courts are barred from altering or reviewing their own Judgments except to correct clerical or arithmetical errors.
• Courts become functus officio once a Judgment or Order is signed.
• Section 482 Cr. P. C. cannot be used to circumvent the explicit bar under Section 362.
• Only procedural reviews are permitted in rare circumstances; substantive reviews are barred.
• The bar under Section 362 Cr. P. C. is to be applied stricto sensu (strictly and literally).

Supreme Court Findings

The Supreme Court, while setting aside the High Court’s May 5, 2021 Order and restoring its August 13, 2020 judgment dismissing the petition for initiating perjury proceedings, held that proceedings under Section 340 Cr. P. C are criminal in nature and governed exclusively by the Cr. P. C. It found that a review application under the Code of Civil Procedure, 1908 was not maintainable in such matters.

“Considering that the proceedings initiated under section 340 of Cr. P. C are of criminal nature and governed by the provisions of Cr. P. C which is a self-contained Code, and includes entire procedure within itself to deal with the proceedings initiated under its provisions, there is no scope for application of provisions of any other procedural law until specifically provided under such law”, the Court held.

Nature of Criminal Proceedings

The Supreme Court reiterated that Criminal Courts become functus officio once a judgment is signed and can only correct clerical or arithmetical errors or act in rare situations such as fraud, lack of jurisdiction, or denial of hearing. From various precedents, the Court outlined the following exceptional circumstances wherein a criminal court is empowered to alter or review its own judgment or a final order under Section 362 Cr. P. C:

Exceptional Circumstances Permitting Review under Section 362 Cr. P. C

• Such power is expressly conferred upon the Court by Cr. P. C or any other law for the time being in force; or
• The Court passing such a judgment or order lacked inherent jurisdiction to do so; or
• A fraud or collusion is being played on the Court to obtain such judgment or order; or
• A mistake on the part of the Court caused prejudice to a party; or
• Facts relating to non-serving of necessary parties or death leading to estate being non-represented, not brought to the notice of the Court while passing such judgment or order.

None of these exceptions, the Court said, applied to the present case.

Case-Specific Findings

The Court also noted that the Khosla Group had withdrawn the Company Petition months before the High Court’s August 2020 judgment but stated that it was still pending. Since this fact was available at the time of the original hearing, it could not later be used to justify recall.

“Such an act to undermine the finality of the judicial proceedings cannot be permitted especially in such situations of deliberate omissions or misrepresentation on the part of the parties before the court and thereafter attempting to defend themselves and obtaining the verboten order dated 05.05.2021, substantially reviewing and recalling the Judgment dated 13.08.2020, under the garb of ‘procedural review’ which is impermissible”, the Court observed.

Conclusion

The legislative scheme as delineated by Section 369 of the Code of Criminal Procedure, 1898, as well as by Section 362 of the Code of Criminal Procedure, 1973, is one and the same. Section 362 of the Cr. P. C. clearly provides 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.

This is, however, subject to any other provision of the Code of Criminal Procedure or any other law for the time being in force. Thus, Section 362 of Cr. P. C. places an embargo prohibiting the Court from altering or reviewing its judgment or final order, and this embargo is relaxed only in two conditions:

The embargo placed on Criminal Courts to alter or review their judgments serves a specific purpose and objective. The judgments of the Hon’ble Supreme Court of India, as noted above, summarize the law to the effect that the Criminal Justice Delivery System does not clothe Criminal Courts with the power to alter or review a judgment or final order disposing of a case, except to correct clerical or arithmetical errors.

After a judgment is delivered or a final order disposing of the case is passed, the Court becomes functus officio. Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law.

Written By: Dinesh Singh Chauhan, Advocate – High Court of Judicature, J&K And Ladakh
Email: [email protected]; [email protected].