Supreme Court Clarifies Power Of Criminal Court To Alter Or Review Its Final Order Or Judgment U/S. 362 CrPC

The Criminal Appeal before the Apex Court challenged the Judgment passed by the Delhi High Court whereby it recalled its earlier Judgment which had disposed of a Criminal Miscellaneous case filed under Section 340 of the Criminal Procedure Code, 1973 (CrPC) against the Appellants for prosecution of offences of perjury and directed that the said application be listed for hearing.

Enumerating the exceptional circumstances wherein a criminal court can alter or review its own judgment or a final order under Section 362 CrPC, the Division Bench of Chief Justice Of India B. R. Gavai and Justice Augustine George Masih stated, “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.”

Factual Background

Two groups, namely, the Khosla Group and the Bakshi Group, came together in relation to the development of a resort at Kasauli in the State of Himachal Pradesh on the land owned by the Khosla Group where the Bakshi Group was to finance and manage the entire project. A Memorandum of Understanding (MoU) was entered into between the Khosla Group and Montreaux Resorts Private Limited (MRPL) for the development of the project. Owing to subsequent disagreements, Sonia Khosla in her capacity as minority shareholder of MRPL, filed a Petition under section 397/398 of Companies Act before the CLB alleging oppression and mismanagement by the Bakshi Group and sought removal of the Directors representing the Bakshi Group from the Board of Directors.

An application was filed by the Khosla Group, praying to restrain the Bakshi Group from holding a meeting between themselves regarding the affairs of MRPL. The CLB accepted the request and directed maintenance of the status quo with respect to the shareholding and composition of the Board of Directors in MRPL as existed on the date of the filing of said Company Petition by Sonia Khosla. The Khosla Group filed another application under Section 340 CrPC before the High Court, alleging that the Bakshi Group had filed a counter-affidavit which contained false and contradictory statements. This application was disposed of by the High Court vide Judgment dated August 13,2020, observing that the CLB was seized of the matter. Khosla Group, thereafter, moved an application under Order XLVII of the Code of Civil Procedure, 1908, seeking review and recall of the Judgment.

The High Court while passing the Impugned Order observed that there can be no debate that a review petition does not lie under the CrPC, except for correction of clerical and arithmetical errors but, still, it proceeded to recall the August 13 Judgment on the ground that the fact of withdrawal of the Company Petition before the CLB (now NCLT) was not brought to the notice of the court earlier but only now through the review application and as a consequence and directed the Criminal Miscellaneous application to be listed for consideration. Aggrieved thereby, the appellant approached the Apex Court.

Reasoning

The Bench, at the outset, explained that the law relating to the 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). The Provision explicitly provides that, except for clerical and arithmetical error, no court shall alter or review its judgment.

On the aspect of reviewing or recalling power of criminal courts, the Bench said, “A careful consideration of the statutory provisions and the aforesaid decisions of this Court clarify the now-wellsettled 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.”

Coming to the facts of the case, the Bench noticed that the review application was filed by Khosla Group under Order XLVII of CPC 1908 before the High Court. “The CPC 1908 does not expressly provide for a provision wherein a review can be filed in the proceedings of criminal nature initiated under CrPC. As a result, the said petition filed by Khosla Group under provisions of CPC 1908 could not have been entertained by the High Court for being patently not maintainable in light of above discussion. This finding itself leads to the disposal of case at hand, however, in our view, it is pertinent to delve into the merits of the review application so moved by the Khosla Group and leading to the Impugned Order vis-à-vis the jurisdiction and expanse of Section 362 of CrPC”, it said.

As per the Bench, neither the Impugned Order fell within the ambit of “procedural review” to not attract the bar of Section 362 CrPC, nor was it the case of the Khosla Group that they were either denied a hearing before the High Court or were not given an opportunity to inform the court of the said development. The Bench further noted that the ground on which recall was later sought was one that was fully available to the Khosla Group at the time of the original hearing and thus, could have been duly raised but was not so taken. Later, in their attempt to abuse the process, they had moved the Company Application for review that too under Order XLVII of CPC, 1908, but the same was not permissible, leading to the passing of the Impugned Order by the High Court.

Thus, setting aside the impugned order, the Bench allowed the appeal.

Cause Title: Vikram Bakshi v. R.P. Khosla (Neutral Citation: 2025 INSC 1020)

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