ITEM NO.110               Court No.6             SECTION II

           S U P R E M E   C O U R T   O F   I N D I A                          RECORD OF PROCEEDINGS                     CRIMINAL APPEAL NO(s). 1323 OF 2004

VISHNU AGARWAL                                    Appellant (s)

                VERSUS

STATE OF U.P. & ANR.                              Respondent(s)

(With office report )

WITH APPEAL(CRL) NO. 875 of 2006 (With office report)

Date: 23/02/2011  These Appeals were called on for hearing today.

CORAM :         HON'BLE MR. JUSTICE MARKANDEY KATJU         HON'BLE MRS. JUSTICE GYAN SUDHA MISRA

For Appellant(s) Mr. Manoj Swarup, Adv. Ms. Lalita Kohli, Adv. Mr. Abhishek Swarup, Adv.

              for M/S Manoj Swarup & Co.,Adv.

                   Mr. Siddhartha Dave, Adv. Ms. Vibha Datta Makhija

For Respondent(s) Mr. Sandeep Singh, Adv.                    Ms. Vibha Datta Makhija,Adv.

                 M/S Manoj Swarup & Co.

          UPON hearing counsel the Court made the following                                O R D E R  Crl. Appeal No. 1323 of 2004

The appeal fails and is accordingly dismissed.

Crl. Appeal No. 875 of 2006

The Appeal is dismissed as having become infructuous.

( Deepak Mansukhani ) Court Master

( Indu Satija ) Court Master

(The signed order is placed on the file) REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1323 OF 2004

VISHNU AGARWAL                                    Appellant (s)

                VERSUS

STATE OF U.P. & ANR.                              Respondent(s)

WITH

CRIMINAL APPEAL NO. 875 OF 2006

O R D E R

Criminal Appeal No. 1323/2004

Heard learned Counsel for the parties.

This appeal has been filed against the impugned Judgment of  

the  Allahabad  High  Court  dated  29.1.2004  in  Criminal  Revision  No.  

136/1998.  

It appears that the aforesaid Criminal Revision was listed in  

the  High  Court  on  2.9.2003.   No  one  appeared  on  behalf  of  the  

Revisionist, though the Counsels for respondents appeared.  In these  

circumstances, the judgment was passed.

Subsequently, an application was moved for recall of the Order  

dated 2.9.2003 alleging that the case was shown in the computer list  

and not in the main list of the High Court, and hence, the learned  

Counsel for the Revisionist had not noted the case and hence he did not  

appear.

-2-

It often happens that sometimes a case is not noted by the Counsel

or his clerk in the cause list, and hence, the Counsel does not appear.  

This is a human mistake and can happen to anyone.  Hence, the High  

Court recalled the order dated 2.9.2003 and directed the case to be  

listed for fresh hearing.  The aforesaid order recalling the order  

dated 2.9.2003 has been challenged before us in this appeal.

Learned Counsel for the appellant has relied on the decision of  

this Court in Hari Singh Mann Vs. Harbhajan Singh Bajwa AIR 2001 SC 43.  

Para 10 of the said judgment states:

“ Section 362 of the Code mandates 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.  The Section is  based on an acknowledged principle of law that once a  matter is finally disposed of by a Court, the said Court  in the absence of a specific statutory provision becomes  functus  officio  and  disentitled  to  entertain  a  fresh  prayer for the same relief unless the former order of  final  disposal  is  set  aside  by  a  Court  of  competent  jurisdiction in a manner prescribed by law.  The Court  becomes  functus  officio  the  moment  the  official  order  disposing of a case is signed.  Such an order cannot be  altered except to the extent of correcting a clerical or  arithmetical error.  The reliance of the respondent on  Talab  Haji Hussain's  case (AIR  1958 SC  376)(supra) is  misconceived.   Even  in  that  case  it  was  pointed  that  inherent powers conferred on High Courts under Section  561A(Section 482 of the new Code) has to be exercised  sparingly, carefully and with caution and only where such  exercise is justified by the tests specifically laid down  in  the  section  itself.   It  is  not  disputed  that  the  petition filed under Section 482 of the Code had been  finally disposed of by the High Court on 7.1.1999.  The  new Section 362 of the Code which was drafted keeping in  view the recommendations of the 41st Report of the Law  Commission and the Joint Select Committees appointed for  the purpose, has extended the bar of review not only to  the judgment but also to the final orders other than the  judgment.”

-3- Learned Counsel for the appellant Mr. Manoj Swarup submitted  

that in view of the aforesaid decision, the High Court erred in law in

recalling the Order dated 2.9.2003.  We regret we cannot agree.   

In our opinion, Section 362 cannot be considered in a rigid  

and over technical manner to defeat the ends of justice.  As Brahaspati  

has observed :

“Kevalam Shastram Ashritya Na Kartavyo Vinirnayah

Yuktiheeney Vichare tu Dharmahaani  Prajayate”

which means:   

“The Court should not give its decision based only on the letter  

of the law.

For  if  the  decision  is  wholly  unreasonable,  injustice  will  

follow.”

Apart from the above, we are of the opinion that the application  

filed by the respondent was an application for recall of the Order  

dated 2.9.2003 and not for review.  In  Asit Kumar Vs.  State of West  

Bengal and Ors. 2009(1) SCR 469, this Court made a distinction between  

recall and review which is as under:-

-4-

“There  is  a  distinction  between  ......  a  review  petition  and  a  recall  petition.   While  in  a  review  petition, the Court considers on merits whether there is an  error  apparent  on  the  face  of  the  record,  in  a  recall  petition the Court does not go into the merits but simply

recalls  an  order  which  was  passed  without  giving  an  opportunity  of  hearing  to  an  affected  party.   We  are  treating  this  petition  under  Article  32  as  a  recall  petition because the order passed in the decision in All  Bengal Licensees Association Vs. Raghabendra Singth & Ors.  [2007(11) SCC 374] cancelling certain licences was passed  without giving opportunity of hearing to the persons who  had been granted licences.”

Hence, we see no error in the impugned order passed by the  

High Court.

The appeal fails and is accordingly dismissed.

Crl. Appeal No. 875 of 2006

The Appeal is dismissed as having become infructuous.

.......................J. (MARKANDEY KATJU)

.......................J. (GYAN SUDHA MISRA)

NEW DELHI FEBRUARY 23, 2011