STATE OF ORISSA Vs. AINUI HAQUE

JUDGEMENT

(1.) This Court, being of the view that grant of bail by the Sessions Judge, Sundargarh, to the opposite party, who was accused of an offence under the Narcotic Drugs and Psychotropic Substances Act, 1985 was not in accordance with law, took suo motu cognizance of the same by an order passed on 9/11/1992. As it was found that despite service of notice on the opposite party no appearance was made, the order of bail granted by the Sessions Judge, Sundargarh, was set aside on 10/2/1993 being satisfied about the illegality of the order. This case was, thereafter, filed on 16/2/1993 to recall the order of cancellation on the ground that the opposite party had entered appearance on 11/12/1992, but in Vakalatnama, due to inadvertence, the connected case was described as Suo Motu Criminal Revision instead of Suo Motu Criminal Misc. Case. It is because of this that the V akalatnama was not placed in the record of the main case and cancellation order was passed without hearing the opposite party, which should, therefore, be recalled.

(2.) The first point for determination is whether, on the face of what has been stated in section 362, Cr. P.C., this case is at all maintainable, inasmuch as that section had laid down that after a Court has signed its judgment or final order disposing of the case, it shall not alter or review the same except to correct a clerical or arithmetical error. That this provision applies even to a case of the present nature is not in dispute in view of the decision in State of Orissa v. Ramchandra. It is also not in dispute that the power available to this Court under section 482, Cr. P.C., which has been invoked by the opposite party for recalling the order of cancellation of bail, cannot be exercised to alter or review a judgment, as the said power is not available if there be an express provision to the contrary. This was the view taken in Ramchandras case (supra) which has dealt with this question in the context of section 561-A Of the old Code, which was the provision in the old Code parallel to section 482 of the new Code. This view was reiterated in Sooraj Devi v. Pyare La1 and Simrikhia v. Dolley Mukherjee.

(3.) Shri Ray appearing for the opposite party, however, submits that the prayer in this case is not to review the order, but to recall the same. Learned Counsel submits that despite what has been laid down in section 362, Cr. P.C., recall of an order is permissible if a case for the same is made out. A Full Bench of the Rajasthan High Court in Habu v. State of Rajasthan, had occasion to discuss this aspect of the matter and on an exhaustive review of the decisions of the Supreme Court and various High Courts came to the conclusion that the power of recall is different from the power of altering or reviewing the judgment. This decision was relied on by a learned single Judge of Karnataka High Court in Giridharilal v. Pratap Rai, referred by Shri Ray, in which the dictionary meaning of the words alter and reviewT have been gone into and it has been thereafter stated in paragraph 20 that there was a vital and significant difference between the words alter, review and recallT inasmuch as the effect of recall is complete abrogation of the judgment or final order, whereas alteration Or review pre-supposes continuance of the initial judgment or final order with same changes or re-examination and reconsideration of the judgment or final order, as stated in paragraph 22. Shri Ray has also referred to the judgment of the learned single Judge of Patna High Court in Krishna Prasad v. Sushila Devid, in which, while exercising the power of recall, the final order passed in the criminal revision was set aside on a case for the same having been made out, after having taken note, inter alia, of Ramchandra s case (supra) and other decisions of the Apex Court which had held that the bar imposed by section 362, Cr. P.C. applies to revisional orders passed by the High Court.