Supreme Court Strikes Down High Court’s Recall of Order in Criminal Appeal

The case of Mohammed Zakir versus Shabana & Others reached the Supreme Court after the Karnataka High Court recalled its own order in a criminal appeal under Section 362 of the Code of Criminal Procedure (Cr.P.C.). The appellant, Mohammed Zakir, challenged this recall, arguing that it was beyond the powers of the High Court. The Supreme Court’s judgment in this case serves as an important precedent on the limitations of judicial review under Section 362 Cr.P.C.

Background of the Case

The appellant, Mohammed Zakir, was aggrieved by an order passed by the High Court on 28.04.2017, which withdrew an earlier order dated 18.04.2017. The High Court justified this withdrawal by stating:

“Notwithstanding Section 362 of Cr.P.C., the order rendered by this Court earlier on 18.04.2017 is found to be patently erroneous and therefore the order is withdrawn. The petition is restored to file and the registry is directed not to webhost the order passed earlier and to take note of the fact that the order is withdrawn.”

Mohammed Zakir challenged this order in the Supreme Court, contending that the High Court had exceeded its jurisdiction under Section 362 Cr.P.C.

Arguments Presented

Petitioner’s Arguments:

The petitioner, appearing in person, argued that the High Court had acted beyond its powers by recalling its own order merely because it found it erroneous. He contended that under Section 362 Cr.P.C., courts are only permitted to correct clerical or arithmetical errors, not substantive errors of law. He maintained that the High Court’s act of recalling the order was impermissible under law.

Respondent’s Arguments:

The respondents, represented by legal counsel, countered that the High Court had the discretion to recall its own orders if they were found to be manifestly erroneous. They argued that the recall was necessary to correct a judicial mistake and that the appellant had suffered no prejudice.

Supreme Court Judgment

The Supreme Court, in a judgment delivered by Justice Kurian Joseph and Justice Sanjay Kishan Kaul, held:

“The High Court should not have exercised the power under Section 362 Cr.P.C. for a correction on merits. However patently erroneous the earlier order be, it can only be corrected in the process known to law and not under Section 362 Cr.P.C.”

The Court reiterated that Section 362 Cr.P.C. exists only to allow courts to rectify clerical or arithmetical errors and not to recall or modify substantive judicial decisions.

Final Verdict

The Supreme Court set aside the High Court’s order dated 28.04.2017 and reinstated the original order dated 18.04.2017. The Court also directed the Principal City Civil and Sessions Judge, Bengaluru, to expeditiously dispose of Criminal Appeal No.95/2017, which was pending before it.

“Accordingly, we set aside the impugned order dated 28.04.2017. Since the said appeal is pending before Principal City Civil and Sessions Judge, Bengaluru, we do not propose to deal with the matter on merits.”

This ruling reinforces the limited scope of Section 362 Cr.P.C. and ensures that courts do not use it as a tool to recall or alter final judicial decisions.

Petitioner Name: Mohammed Zakir.
Respondent Name: Shabana & Others.
Judgment By: Justice Kurian Joseph, Justice Sanjay Kishan Kaul.
Place Of Incident: Bengaluru.
Judgment Date: 23-07-2018.

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