Can recall orders based on technicalities: HC

Saurabh Malik

Tribune News Service

Chandigarh, August 10

The Punjab and Haryana High Court has ruled that orders passed on technical grounds, rather than merit, can be recalled. Justice Anoop Chitkara made it clear that the statutory prohibition under Section 362 of the CrPC, which prevented altering or reviewing a final order once signed, did not apply to orders that were not adjudicated on merit.

Justice Chitkara, in the process, distinguished between orders passed after applying judicial mind and those dismissed for technical reasons such as non-prosecution or wrong statements. The Bench observed there were two distinct phases of prohibition under Section 362.

If an order and judgment was passed on merit, Section 362 would apply, rendering the court “functus officio”. But orders passed on technicalities were not considered orders on merit, and the high court remained within its jurisdiction to recall such orders to prevent abuse of the process of law and secure justice.

Justice Chitkara asserted: “The statutory prohibition under Section 362 certainly implies that when the orders are passed on merit and once the courts have applied their mind and pronounced and signed the judgment, they become functus officio. However, when the matters are not decided on merit, but on technicalities, it would be an altogether different scenario.”

The judgment further elaborated on the high court’s powers under Section 482 of the CrPC. Justice Chitkara was of the opinion that the high court had statutory powers under Section 482 to prevent abuse of the process of any court. The section did not state that the word “any court” in it would not include the “high court”. Instead, “any” must include the high court.

Justice Chitkara added recalling an order was fundamentally different from altering, reviewing or modifying it. An application filed under Section 482 was for recalling the order and not for altering, reviewing or modifying it. “Recalling an order does not mean reviewing, altering or modifying an order. It implies that if the applicant’s prayer is accepted, the order shall cease to exist and operate,” the court clarified.

Key observations

• The orders passed on technicalities are not considered orders on merit, and the HC remains within its jurisdiction to recall such orders to prevent abuse of the process of law
• Recalling an order does not mean reviewing, altering or modifying an order. It implies if the applicant's prayer is accepted, the order shall cease to exist and operate