Supreme Court clarifies the scope of Section 362 of the Code of Criminal Procedure in correcting errors: Mohammed Zakir vs. Shabana & Ors. (23 July 2018)

Introduction

Date of the Judgment: 23 July 2018

Citation: 2018 INSC 661

Judges: Kurian Joseph, J., Sanjay Kishan Kaul, J.

Can a High Court recall its own order to correct an error on merits using Section 362 of the Code of Criminal Procedure, 1973 (CrPC)? The Supreme Court of India addressed this question in a recent case, clarifying the limitations of this provision. The core issue revolved around whether a High Court can use Section 362 of the CrPC to recall its own order if it finds the order to be erroneous on merits. The Supreme Court held that Section 362 of the CrPC can only be used to correct clerical or arithmetical errors and not to rehear a matter on merits. The judgment was delivered by a bench comprising Justice Kurian Joseph and Justice Sanjay Kishan Kaul.

Case Background

The appellant, Mohammed Zakir, was aggrieved by an order passed by the High Court. The High Court had initially passed an order on 18 April 2017. Subsequently, on 28 April 2017, the High Court recalled its own order stating that the earlier order was patently erroneous. The High Court then restored the matter to file. The appellant challenged the High Court’s order of 28 April 2017, arguing that it was not permissible under Section 362 of the CrPC.

Timeline

Course of Proceedings

The appellant approached the High Court, challenging the notice issued by the Sessions Court on 25 January 2017 in Criminal Appeal No. 95/2017. The High Court initially passed an order on 18 April 2017. However, the High Court subsequently recalled this order on 28 April 2017, stating that the earlier order was patently erroneous and restored the matter to file. The Supreme Court noted that the High Court should not have exercised the power under Section 362 of the CrPC to correct an error on merits.

Legal Framework

The core legal provision at the heart of this case is Section 362 of the Code of Criminal Procedure, 1973 (CrPC). This section states:

“362. Court not to alter judgment. 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.”

This provision restricts the power of a court to alter or review its judgment once it has been signed, except to correct clerical or arithmetical errors. The Supreme Court emphasized that Section 362 of the CrPC does not allow for a rehearing of a matter on merits.

Arguments

The appellant, appearing in person, argued that the High Court could not have recalled its order of 18 April 2017 under Section 362 of the CrPC, as the provision only allows for the correction of clerical or arithmetical errors. The appellant contended that the High Court had effectively reheard the matter on merits, which is not permissible under the said section.

The respondents, represented by their counsel, did not make any specific arguments on the interpretation of Section 362 of the CrPC.

Mr. Gopal Sankaranarayanan, the amicus curiae, supported the appellant’s argument that Section 362 of the CrPC does not allow for a review of an order on merits.

Issues Framed by the Supreme Court

The primary issue before the Supreme Court was:

✓ Whether the High Court was justified in recalling its order dated 18 April 2017 under Section 362 of the CrPC.

Treatment of the Issue by the Court

Authorities

The Supreme Court did not cite any specific cases or books in this judgment. The primary focus was on the interpretation of Section 362 of the CrPC.

Judgment

The Supreme Court held that the High Court could not have recalled its order of 18 April 2017 under Section 362 of the CrPC. The Court emphasized that Section 362 of the CrPC is only meant for correcting clerical or arithmetical errors and not for rehearing a matter on merits. The Court observed that even if the earlier order was patently erroneous, it could only be corrected through a process known to law and not under Section 362 of the CrPC.

The Supreme Court set aside the High Court’s order dated 28 April 2017. The Court also set aside the High Court’s order dated 18 April 2017, and directed the Principal City Civil and Sessions Judge, Bengaluru, to dispose of Criminal Appeal No. 95/2017 expeditiously.

The Supreme Court quoted Section 362 of the CrPC:

“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 Court stated:

“The whole purpose of Section 362 Cr.P.C. is only to correct a clerical or arithmetical error.”

“What the High Court sought to do in the impugned order is not to correct a clerical or arithmetical error; it sought to re-hear the matter on merits, since, according to the learned Judge, the earlier order was patently erroneous. That is impermissible under law.”

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the clear and unambiguous language of Section 362 of the CrPC. The Court emphasized the legislative intent behind this provision, which is to ensure finality of judgments and to prevent courts from altering or reviewing their orders except for specific, limited reasons. The Court’s reasoning focused on the need to adhere to the procedural framework established by law.

Key Takeaways

• Section 362 of the Code of Criminal Procedure, 1973, only allows for the correction of clerical or arithmetical errors in a court’s judgment or final order.
• A court cannot recall its order to rehear a matter on merits under Section 362 of the CrPC.
• Even if a court believes its earlier order was erroneous, it cannot correct the error using Section 362 of the CrPC. It must follow other procedures known to law.
• The purpose of Section 362 of the CrPC is to ensure finality of judgments and prevent courts from altering or reviewing their orders except for specific, limited reasons.

Directions

The Supreme Court directed the Principal City Civil and Sessions Judge, Bengaluru, to dispose of Criminal Appeal No. 95/2017 expeditiously.

Development of Law

The ratio decidendi of this case is that Section 362 of the CrPC cannot be used to review or alter a judgment on merits, but only to correct clerical or arithmetical errors. This reinforces the established legal position that once a judgment is signed, it can only be altered under specific circumstances. There is no change in the previous position of law, but this judgment clarifies the scope of Section 362 of the CrPC.

Conclusion

The Supreme Court’s judgment in Mohammed Zakir vs. Shabana & Ors. clarifies the limited scope of Section 362 of the Code of Criminal Procedure, 1973. The Court held that a High Court cannot recall its order to correct an error on merits using Section 362 of the CrPC. This provision is only meant for correcting clerical or arithmetical errors. The judgment reinforces the principle that once a judgment is signed, it can only be altered under specific circumstances, ensuring finality and preventing courts from revisiting cases on merits under the guise of correcting errors.