PERMISSIBILITY of review OF ORDERS in criminal cases

 

PERMISSIBILITY of review OF ORDERS in criminal cases

Scope of Section 362 Cr.PC (equivalent to Section 403 of Bhartiya Nagrik Suraksha Sanhita, 2023) decoded

There is no explicit power of review is provided for under The Code of Criminal Procedure 1973. The only power available under Section 362 of CrPC is to correct a clerical or arithmetical error. The closer analysis of section 362 CrPC shall reflect that, however, whether, the same shall be applicable to every order or not has to be analysed. The Supreme Court in Sanjeev Kapoor vs. Chandana Kapoor and Others (2020) 13 SCC 172 has held that that there are only two relaxations given from the rigour of Section 362 of CrPC where such power to alter or review is provided i.e (i) by the CrPC itself or (ii) by any other law for time being in force. There can be no debate that a review petition does not lie under the CrPC, except for correction of clerical and arithmetical errors. The issue raised before the Supreme Court in Sanjeev Kapoor (Supra) relates to a proceeding u/s 340 Cr.PC that emanated from a civil proceeding. The issue before the Supreme Court was formulated as under:

“Whether a review or recall of an order passed in a criminal proceeding initiated under section 340 of CrPC is permissible or not?”

It may be noted that the Supreme Court had dealt with the question in reference to the issue formulated above, however, while so doing, the broad canvas of law relating to review has been deliberated and analysed.

The issue is if the court can undo its own wrong and whether the court may be acting ex debito justitiae in order to undo the injurious effect flowing from its factually erroneous observation included in Judgment.

Reliance:

·         Ganesh Patel vs. Umakant Rajoria 2022 SCC OnLine SC 2050,

·         Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and Others 1980 Supp SCC 420,

·         State of Kerala vs. M.M. Manikantan Nair (2001) 4 SCC 752,

·         Hari Singh Mann vs. Harbhajan Singh Bajwa and Others (2001) 1 SCC 169;

·         Budhia Swain and Others vs. Gopinath Deb and Others (1999) 4 SCC 396.

The law relating to power of a criminal court to review or alter its own judgment or order is governed by the provisions of Section 362 of CrPC (equivalent to Section 403 of Bhartiya Nagrik Suraksha Sanhita, 2023) and it explicitly provides that except for clerical and arithmetical error, no court shall alter or review its judgment. Section 362 of CrPC reads as follows:

“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.”

The comparison of the power of review of a civil court vis a-vis power of criminal court to review or recall its own judgment or order arising out of criminal proceedings has been put to rest by numerous decisions of the Supreme Court.

Substantive review & Procedural Review: Permissibility

A three judge bench of the Supreme Court in a matter reported as State of Kerala vs. M.M. Manikantan Nair (Supra) has held that CrPC does not authorize High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 Cr.PC explicitly prohibits the court, after it has signed its judgment or final order disposing of case, from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed.

Similarly, in Hari Singh Mann vs. Harbhajan Singh Bajwa and Others (2001) 1 SCC 169, the Supreme Court observed that section 362 of CrPC is based on the acknowledged principle of law that once a matter is finally disposed of by a court, the said court, in absence of specific statutory provisions, becomes functus officio and is disentitled to entertain fresh prayer for same relief.

It has been reiterated that Section 362 of CrPC imposes an embargo on a criminal court to alter and review its own judgment. Though, there are two relaxations envisioned by the legislature and the Supreme Court has explained that an alteration or review is only feasible if it is so provided by the said legislation itself or by any other law in force. An attempt to alter or review is also not feasible or permissible through a reference to Section 482 of CrPC for being expressly barred under Section 362 of CrPC. In exceptional cases, however, exceptions are carved out as limited scope for exercise of review power by criminal courts. In Grindlays Bank Ltd. (supra), it was observed that review can be distinguished between “procedural review” and “substantive review”. A “procedural review” is inherent or implied in a court to set aside a palpably erroneous order passed under misapprehension by it, however, a “substantive review” is when error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense, that the Supreme Court is Court has held that no review lies on merits unless specifically provided under a statute.

In Budhia Swain and Others vs. Gopinath Deb and Others (1999) 4 SCC 396, the Supreme Court has laid down certain grounds on which a criminal court can review or recall its judgment or order i.e. when the proceedings before it itself suffers from an inherent lack of jurisdiction or, a fraud is played upon court to obtain the order or, a mistake of court causing prejudice to party or the order was in ignorance of non- serving of necessary party or party had died and estate was not represented. It was however clarified that these exceptions are subject to the limitation that such grounds can only be raised to recall or review if the same was available during the original action and was not availed.

In Ganesh Patel (supra) the Supreme Court has held that application for recall seeking “procedural review” and not “substantive review” to which Section 362 of CrPC be attracted is permissible it was held while upholding the order of the High Court, wherein the high court had recalled the earlier order passed in the absence of the Respondent and based on false information.

The Supreme Court has held in Sanjeev Kapoor (Supra) that:

“34. A careful consideration of the statutory provisions and the aforesaid decisions of this Court clarify the now-well settled position of jurisprudence of Section 362 of CrPC which when summarize would be that the criminal courts, as envisaged under the CrPC, are barred from altering or review 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 CrPC becomes applicable, this, despite the powers provided under Section 482 CrPC which, this veil cannot allow the courts to step beyond or circumvent an explicit bar. It also stands clarified that 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 Section “362 CrPC is attracted. Numerous decisions of this Court have also elaborated that the bar under said provision is to be applied stricto sensu”.

“34 A. Having said that, the following exceptional circumstances may be identified, wherein a criminal court is empowered to alter or review its own judgment or a final order under Section 362 CrPC:

a. Such power is expressly conferred upon court by CrPC or any other law for the time being in force or;

b. The court passing such a judgement or order lacked inherent jurisdiction to do so or;

c. A fraud or collusion is being played on court to obtain such judgment or order or;

d. A mistake on the part of court caused prejudice to a party or;

e. Fact relating to non-serving of necessary party or death leading to estate being non-represented, not brought to notice of court while passing such judgment or order.

It needs to be reiterated that 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”.

The scheme of CrPC defines it is an Act “to consolidate and amend the law relating to Criminal Procedure”. Section 4 of CrPC provides for scope of the CrPC which is reproduced herein:

“4. Trial of offences under the Indian Penal Code and other laws

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigating, inquiring into, trying or otherwise dealing with such offences.”

The provisions of Sub-section (1) of Section 4 of CrPC expressly mandates an investigation, inquiry or trial of offences under Indian Penal Code of 1860 to be conducted strictly as per the procedure provided in the provisions of the CrPC. The definition of “inquiry” as stipulated in Section 2 (g) of CrPC means every inquiry, other than a trial, conducted under the CrPC by a Magistrate or Court.

Whether Section 340 Cr.PC proceeding emanating from civil case shall be construed as criminal proceeding?

The Section 340 of the CrPC, in essence, is invoked to determine as to whether a complaint ought to be made in writing by concerned court to the competent Magistrate for prosecution of accused in respect of an offence alleged to have been committed in or in relation to a proceeding in a court. Section 340 of CrPC empowers the court that such determination may be done by way of holding preliminary inquiry to ascertain sufficient material to justify the initiation of prosecution against the accused. The nature of such an inquiry is not administrative or mere procedural. It is an initial step to a course which may lead to criminal prosecution, and this step is taken by a court with avowed purpose of examining whether a person should be prosecuted for an offence which, more often than not, relates to fabricating or giving false evidence, or committing other offences affecting the administration of justice, all of which are offences punishable under the Indian Penal Code.

Therefore, what is to be seen is that if the nature of proceeding is such, the outcome of which, may result in a trial before a criminal court and, upon conviction, entail punishment for an offence under the penal law, then, such a proceeding must, in substance, be treated as criminal in nature. Section 4(1) of the Code mandates that all offences under the Indian Penal Code. must be investigated, inquired into, tried, and otherwise dealt with in accordance with the procedure prescribed by the CrPC. The nature of the proceeding is determined by its substance and consequences it may result into. Thus, a proceeding initiated 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 under section 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. If this principle is applied in Sanjeev Kapoor (Supra) what is evident is that the review application was filed by a party under Order XLVII of Code of Civil Procedure (CPC) 1908 before High Court. We know that 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 so filed under the provisions of CPC 1908 could not have been entertained by the High Court for being patently not maintainable in view of what are illustrated above. Moreover, on merits, also, review application so moved leading to the impugned Order vis-à-vis the jurisdiction and expanse of Section 362 of CrPC.

Thus, it is observed in Sanjeev Kapoor (Supra) that if application for seeking review falls within the ambit of “procedural review” to not attract the bar of Section 362 CrPC, then it can be entertained, further, if it is contended that a party seeking review was not heard  or was not given an opportunity to inform the court about it, else the same shall not fall within the domain of procedural review. As the ground on which recall was sought was one that was fully available to the concerned party at the time of the original hearing and thus, could have been duly raised but was not so taken. Later, in attempt to abuse the process, application for review that too under Order XLVII of CPC, 1908 which, anyway, would not be permissible leading to passing of the order in Section 340Cr.PC Proceeding. It is so, because, a direction for inquiry related to probable offence in a civil proceeding if passed under section 340 Cr.PC the same will be under the trap of Cr.PC and not that of CPC. The power of review in criminal cases as indicated has not been specifically prescribed by statute, other than what is provided in limited sense has been contained in section 362 Cr.PC and it has evolved in a limited sense by judicial precedents. Thus, no leverage can generally be accorded contrary to the prescription as laid down, if so, then, it may be akin to an attempt to undermine the finality of the judicial proceeding and hence cannot be permitted, especially on the premise of deliberate omissions or misrepresentation on the part of the parties before the court and thereafter attempting to defend themselves. Moreover “substantial review” cannot be obtained under the garb of “procedural review” which is impermissible.  Thus, it is held that such review being antithetical to the law as laid down by the Supreme Court while dealing with Section 362 of CrPC and ought to be set aside and hence it was set aside.

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Anil K Khaware

Founder & Senior Associate

Societylawandjustice.com