VISHNU AGARWAL versus STATE OF U.P. AND ANR.

Citation: [2011] 3 S.C.R. 197 · Decided: 23-02-2011 · Supreme Court of India · Bench: MARKANDEY KATJU, GYAN SUDHA MISRA · Disposal: Dismissed

Judgment (excerpt)

[2011] 3 S.C.R. 197 
VISHNU AGARWAL 
v. 
STATE OF U.P. AND ANR. 
(Criminal Appeal No. 1323 of 2004) 
FEBRUARY 23, 2011 
[MARKANDEY KAT JU AND GYAN SUDHA MISRA, JJ.] 
Administration of justice: Adjudication of case in the 
absence of counsel - In a revision petition, no one appeared 
A 
B 
for the revisionist - Order passed - Application for recall of C 
the order alleging that the case was not in the main list of the 
High Court and, therefore, the counsel for the revisionist could 
not note the case and could not appear - High Court recalled 
the order - On appeal, held: No doubt, s.362 , Cr.P.C. 
mandates that no court when it has signed its judgment or D 
final order disposing of the case shall alter or review the same 
except to correct a clerical or arithmetic error- However, s.362 
cannot be considered in a rigid and over technical manner 
to defeat the ends of justice - The court should not give its 
decision based only on the letter of the law, for, if the decision 
E 
is wholly unreasonable, injustice will follow - Moreover, the 
application filed by the revisionist was an application for recall 
of order and not for review - While in a review petition, the 
court considers on merits whether there is an error apparent 
on the face of the record, in a recall petition, the court does 
not go into the merits but simply recalls an order which was 
passed without giving an opportunity of hearing to an affected 
party- Therefore, there was no error in law in the order of the 
High Court in recalling its order- Code of Criminal Procedure, 
1973 - s.362. 
Asif Kumar v. State of West Bengal and Ors. 2009 (1) 
SCR 469 - relied on. 
197 
F 
G 
H 
198 
SUPREME COURT REPORTS 
(2011] 3 S.C.R. 
A 
Harl Singh Mann v. Harbhajan Singh Bajwa AIR 2001 
B 
SC 43 - referred to. 
Case Law Reference: 
AIR 2001 SC 43 
2009 (1) SCR 469 
referred to 
relied on 
Para 6 
Para 9 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 1323 of 2004. 
c 
From the Judgment and Order dated 29.01.2004 of the 
High Court of Judicature at Allahabad in Criminal Revision No. 
136 of 1998. 
WITH 
D Criminal Appeal No. 875 of 2006. 
Manoj Swarup, Lalita Kohli, Abhishek Swarup (Manoj 
Swarup & co·.), Siddhartha Dave, Vibha Datta Makhija, 
Sandeep Singh and Manoj Swarup & Co. for the appearing 
E parties. 
· 
The following order of the Court was delivered 
ORDER 
F Criminal Appeal No. 1323/2004 
1. Heard learned Counsel for the parties. 
2. This appeal has been filed against the impugned 
Judgment of the Allahabad High Court dated 29.1.2004 in 
G Criminal Revision No. 136/1998. 
3. It appears that the aforesaid Criminal Revision was 
listed in the High Court on 2.9.2003. No one appeared on behalf 
of the Revisionist, though the Counsels for respondents 
H appeared. In these circumstances, the judgment was passed. 
VISHNU AGARWAL v. STATE OF U.P. AND ANR. 
199 
4. Subsequently, an application was moved for recall of the · A 
Order dated 2.9.2003 alleging that the case was shown in the 
computer list and not in the main list of the High Court, and 
hence, the learned Counsel for the Revisionist had not noted 
the case and hence he did not appear. 
5. It often happens that sometimes a case is not noted by 
8 
the Counsel or his clerk in the cause list, and hence, the 
Counsel does not appear. This is a human mistake and can 
happen to anyone. Hence, the High Court recalled the order 
dated 2.9.2003 and directed the case to be listed for fresh 
hearing. The aforesaid order recalling the order dated 2.9.2003 
C 
has been challenged before us in this appeal. 
6. Learned Counsel for the appellant has relied on the 
decision of this Court in Hari Singh Mann Vs. Harbhajan 
Singh Bajwa AIR 2001 SC 43. Para 10 of the said judgment · D 
states: 
"Section 362 of the Code mandates that llo Court, 
when it has signed its judgment or final order disposing 
of a case shall alter or review the same except to correct 
E 
a clerical or arithmetical error. The Section is based on 
an acknowledged principle of law that once a matter is 
finally disposed of by a Court, the said 'court in the . 
· absence of a specific statutory provision becomes functus 
officio and disentitled· to entertain a fresh prayer. for the ·. F • 
. . sa1ne reliefunless the former order of final dispo,s~li~ ~et 
aside ·by a Court of c6mpeterit'jurisdiction'il:ra manner 
. prescribed by law. The Court becomes.f!.Jnctus bfficio the . · 
moment the official·orderdisposingof a ca.se is .. signed .. 
Suc

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