The Allahabad High Court on September 19, 2019, in the case of Jaspreet Singh Garewal v. State of U.P. and Another, has recalled an order passed in a criminal case by observing that under Section 362 of the Code of Criminal Procedure, 1973, there is a difference between recall and review.
A single judge Bench of Justice Rajeev Misra while hearing an application filed under Section 482 of the Code of Criminal Procedure, 1973, observed that Section 362 of the Code only applies for review and does not bar recall of orders.
As per Section 362 CrPC 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.
To recall the order, the court referred to a Supreme Court judgment in Vishnu Agarwal v. State of U.P. wherein it was observed: "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."
The court also referred to a single Bench judgment of the High Court in Jawahar Lal @ Jawahar Lal Jalaj v. State of U.P. whereby it was held that application for restoration or recall of the order is maintainable and the prohibition of Section 362 CrPC do not apply in the petitions, which have been dismissed in default without discussing the merits of the case because it do not come within the prohibition of 'alter' or 'review' of judgment, which has entirely a different meaning.
In the present case, the court noted that while passing the order, the opposite party was not represented by any counsel nor notices were issued to him before finally deciding the application.
In view of the above, the court observed: "The Apex Court in case of Vishnu Agarwal (Supra) and judgement of learned Single Judge in Jawahar Lal (Supra) have reiterated that there is difference between recall and review. By seeking recall of order dated 15.12.2016, opposite party No.2 is not seeking review of order dated 15.12.2016 and therefore bar contained in section 362 Cr.P.C. will not come in way. Consequently, I am of the considered opinion that order dated 15.12.2016, is liable to be recalled at the behest of opposite party No.2, who admittedly was not afforded any notice or opportunity of hearing before order dated 15.12.2016 was passed."
