Code of Criminal Procedure, 1973 – s.362 – Bar under – Scope and applicability – High Court recalled its earlier order disposing of the petition filed u/s.340 against the appellants for prosecution of offences of perjury and directed that the said application be listed for hearing:
Held: As envisaged under the CrPC, criminal courts are barred from altering or review their own judgments except for the exceptions explicitly provided by the statute, viz., 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 s.362 becomes applicable, this, despite the powers provided u/s.482 which, this veil cannot allow the courts to step beyond or circumvent an explicit bar – Bar u/s.362 is to be applied stricto sensu – It is only in situations wherein an application for recall of an order or judgment seeking a “procedural review” that the bar would not apply and not a “substantive review” where the bar as contained in s.362 is attracted – Neither the impugned order falls within the ambit of “procedural review” to not attract the bar of s.362 CrPC, nor is it the case of the ‘KG’ that they were either denied a hearing before the High Court or were not given an opportunity to inform the court of the said development – Furthermore, an act to undermine the finality of the judicial proceedings cannot be permitted especially in 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 (Impugned Order) substantially reviewing and recalling the Judgment dated 13.08.2020, under the garb of “procedural review” which is impermissible – Impugned Order set aside. [Paras 34, 43-45]
Code of Criminal Procedure, 1973 – s.362 – Bar under – Exceptional circumstances wherein a criminal court is empowered to alter or review its own judgment or a final order u/s.362, enumerated – Exercise of, when:
Held: All these exceptions are only exercisable for seeking a recall or review of an order or judgment, if a ground that is raised was not available or existent at the time of original proceedings before the Court – Mere fact that the said ground, although available, was not raised or pressed during the concerned proceedings, does not provide for an exemption to the parties to assert it as a ground – Moreover, the said power cannot be invoked as a means to circumvent the finality of the judicial process or mistakes and/or errors in the decision which are attributable to a conscious omission by the parties. [Para 34]
Code of Criminal Procedure, 1973 – s.4, 2(g), 340 – Code of Civil Procedure, 1908 – Review Petition u/Or.XLVII – Maintainability:
Held: A proceeding under section 340 of CrPC is in the nature of criminal proceeding and governed by the provisions of the CrPC, as a consequence, thereof, all the procedural safeguards, consequences, and effects thereto associated with a criminal proceeding under CrPC are also attracted to it – The proceedings initiated u/s.340 of CrPC are of criminal nature and governed by the provisions of CrPC 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 – In the present case, the review application was filed by ‘KG’ u/Order XLVII of CPC 1908 before High Court – The CPC 1908 does not expressly provide for a provision wherein a review can be filed in the proceedings of criminal nature initiated under CrPC – Thus, the said petition filed by ‘KG’ under provisions of CPC 1908 could not have been entertained by the High Court being not maintainable. [Paras 38-40]
As published in the Supreme Court Reports, Supreme Court of India. Headnotes prepared by: Divya Pandey. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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