Arun Kumar Singh v. The State of Jharkhand

CORAM : HON’BLE MR. JUSTICE RONGON MUKHOPADHYAY For the Petitioner For the State --------- : Mr. P.P.N. Roy, Sr. Advocate : Mr. Arup Kr. Dey, A.P.P. --------- 06/02.02.2024 Heard Mr. P.P.N. Roy, learned Senior Counsel for the petitioner and Mr. Arup Kr. Dey, learned A.P.P. for the State. In spite of service of notice the Opposite Party No. 2 has not appeared. In this application, the petitioner has prayed for recalling of the order dated 24.09.2018 passed in Cr. Revision No. 850 of 2008, by which, the revision application was dismissed. Submission has been advanced by the learned Senior Counsel for the petitioner that the petitioner could not make himself present on 24.09.2018 but in spite of the absence of the learned counsel for the petitioner Cr. Revision No. 850 of 2008 was dismissed. It has been submitted that since the petitioner could not get an opportunity of hearing the order in question be recalled and it has also been submitted that Section 362 Cr.P.C. would not come in the way of recalling the order dated 24.09.2018.

Mr. Roy, in support of his contention submits that an order can be recalled on certain circumstances by exercising the powers u/s 482 of the Cr.P.C. and he has referred to the case of “State of Punjab versus Davinder Pal Singh Bhullar and Others” reported in (2011) 14 SCC 770. Mr. Roy, has relied upon the following paragraph in support of his contention: “46. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or -2- where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 CrPC would not operate. In such an eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice.

The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide Chitawan v. Mahboob Ilahi, Deepak Thanwardas Balwani v. State of Maharashtra, Habu v. State of Rajasthan, Swarth v. Dharmdeo Narain Singh, Makkapati Mahto Nagaswara Sastri v. S.S. Satyanarayan, Asit Kumar Kar v. State of W.B. and Vishnu Agarwal v. State of U.P.)” Learned A.P.P. has opposed the submission advanced by the learned Senior Counsel for the petitioner. It appears that Cr. Revision No. 850 of 2008 was preferred against the judgment dated 05.07.2008 passed in Criminal Appeal No. 26 of 1998 by the learned Sessions Judge, Dhanbad which had confirmed the order of conviction passed against the petitioner for the offence punishable u/s 387 of the Indian Penal Code. The counsel for the petitioner was not present when Cr. Revision No.