Would Section 362 Cr.P.C. affect the inherent power of the High Court to review an order passed without Jurisdiction?

When an order is passed by the High Court without Jurisdiction, can the same be review again by the High Court, without being affected by Section 362 Cr.P.C. was the question that came before the Supreme Court of India in New India Assurance Co Ltd. vs Krishna Kumar Pandey decided on 6th December, 2019. The Supreme Court came to the conclusion that when the initial order was passed without jurisdiction, the Section 362 would not operate as a bar against reviewing the Order under the inherent powers vested under Section 482.

Section 362 in The Code Of Criminal Procedure, 1973

362. Court not to after judgement. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.

The relevant portion of the decision in New India Assurance Co Ltd. vs Krishna Kumar Pandey decided on 6th December, 2019 by the Supreme Court is extracted hereunder:

9. Obviously the power conferred by Sections 397 and 401 are actually powers of superintendence/supervision over inferior Courts. The power cannot be converted into the power of superintendence over the employer of the person accused. None of the provisions of Sections 397 to 401 confer any power upon the High Court to declare that there shall be no civil consequences, resulting from the conviction. Therefore, what the High Court did by its Order dated 23.11.2012, holding that the conviction shall not affect the service career of the respondent adversely, was completely outside the purview of its revisional jurisdiction and cannot be sustained.

10. However, Mr. Ranji Thomas, learned Senior Counsel appearing for the respondent strenuously contended that in view of the embargo spelt out in Section 362 of the Code, there was no power for the High Court to alter or review the judgment rendered earlier in the revision filed by the respondent, except for the correction of a clerical or arithmetical error. In this regard, the learned Senior Counsel for the respondent placed strong reliance upon the Judgment of this Court in State of Punjab Versus Davinder Pal Singh Bhullar & Others1. It is his contention that the High Court was right in rejecting the application filed by the appellant under Section 482 Cr.P.C for recall/review of its earlier order, as the High Court did not have the power to do so.

11. But the above contention of the learned Senior Counsel for the respondent is fallacious for two reasons. The first is that Section 362 of the Code is expressly subjected to “what is otherwise provided by the Code or by any other law for the time being in force.” Though this Court pointed out in Davinder Pal Singh (supra) that the exceptions carved out in Section 362 of the Code would apply only to those provisions where the Court has been expressly authorized either by the Code or by any other law but not to the inherent power of the Court, this Court nevertheless held that the inherent power of the Court under Section 482 Cr.P.C is saved, where an order has been passed by the criminal Court, which is required to be set aside to secure the ends of justice, or where the proceeding amounts to abuse of the process of Court. In paragraph 46 in particular, this Court held in Davinder Pal Singh as follows:

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 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 Cr.P.C. 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.”

12. The case on hand is one where the respondent secured an order from the High Court, behind the back of his employer that his conviction will not have an impact upon the service career of the respondent. The High Court did not have the power to pass such an order. If at all, the High Court could have invoked, after convicting the respondent, the provisions of the Probation of Offenders Act, 1958, so that the respondent could take shelter, if eligible, under Section 12 of the said Act. In this case, the High Court ventured to do something which it was not empowered to do. Therefore, the respondent cannot take umbrage under Section 362 of Cr.P.C. The second reason why the argument of the learned Senior Counsel for the respondent is fallacious is that the respondent himself was a beneficiary of what he is now accusing the appellant of. As we have stated earlier, the criminal revision petition filed by the respondent in Cr.R.No.402 of 2012 was disposed of by the High Court by a Judgment dated 29.06.2012. Thereafter the respondent moved a Miscellaneous Application in Criminal case No.8951 of 2012 purportedly for the correction of the order. There was neither an arithmetical nor a clerical error in the judgment of the High Court, warranting the invocation of Section 362 Cr.P.C. The respondent cleverly borrowed the language of Section 362 Cr.P.C to affix a label to his petition and the High Court fell into the trap. After having invited an order, which, by the very same argument of the respondent, could not have been passed, it is not open to the respondent today to contend that there was no jurisdiction for the High Court to pass such an order. It is nothing but a case of pot calling the kettle black.

The full text of the decision may be downloaded here – New India Assurance Co Ltd. vs Krishna Kumar Pandey decided on 6th December, 2019.


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