MOHAMMED ZAKIR v. SHABANA & ORS.

Case Details & Bench

Court: High Court
Hon'ble Judges: Kurian Joseph
Sanjay Kishan Kaul
Judgment Date: 2018-07-23
Court Decision / Holding: Appeal disposed of. The High Court’s impugned order (28.04.2017) recalling its own order (18.04.2017) is set aside. The Court directs the Principal City Civil and Sessions Judge, Bengaluru, to expeditiously dispose of Criminal Appeal No.95/2017. Pending applications shall stand disposed of.
Final Disposition: Appeal disposed of.

Parties to the Case

Appellants / Petitioners

Mohammed Zakir

Respondents

Shabana
ORS

Legal Representation & Advocates

Counsels for Respondents

• Gopal Sankaranarayanan
• Shrutanjaya Bhardwaj
• G Joseph Aristotle S.
• Mrs. Priya Aristotle
• Ms. Payal N. Gaikwad

Case Synopsis & Summary

Mohammed Zakir v. Shabana & Ors. is a Supreme Court Criminal Appeal (No. 926 of 2018) decided on 23 July 2018 by a Division Bench comprising Justices Kurian Joseph and Sanjay Kishan Kaul. The appellant challenged a High Court order passed under Section 362 Cr.P.C. dated 28 April 2017, which recalled its earlier order of 18 April 2017. The High Court’s action, described as a correction under Section 362, sought to restore the petition to the file and withdraw a prior order, while directing not to webhost the earlier order. The Supreme Court held that Section 362 Cr.P.C. is confined to correcting clerical or arithmetical errors and not to re-hear the matter on merits. Regardless of how patently erroneous the earlier order appeared, such corrections must be made through the lawful process, not by recalling or re-hearing on merits. Consequently, the Court set aside the impugned order and disposed of the appeal, directing the Principal City Civil and Sessions Judge, Bengaluru, to expeditiously dispose of Criminal Appeal No.95/2017. The judgment reinforces the narrow scope of Section 362 and clarifies the procedure for correcting court orders without altering the merits of the case.

Provisions of Law Cited

Code of Criminal Procedure, 1973 – s.362

Legal Doctrines & Maxims

The whole purpose of Section 362 Cr.P.C. is to correct a clerical or arithmetical error.
Section 362 Cr.P.C. cannot be used to recall or re-hear on merits.

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellant contends that the High Court’s invocation of Section 362 Cr.P.C. to recall its order amounts to a merits re-hearing, which is impermissible. Section 362 is confined to correcting clerical or arithmetical errors, and not to decide the case on merits again. The appellant asserts that any attempt to review the merits through Section 362 undermines due process and exceeds the scope of the provision.

Contentions of Respondents

The respondents contend that the High Court’s order was a necessary correction of a patently erroneous order and that recalling the order and directing a fresh consideration would prevent miscarriage of justice. They argue that repairing the order through a lawful mechanism is permissible to ensure proper administration of justice.

Extracted Judgment Text

Exact text extracted from official judgment records.

1128 SUPREME COURT REPORTS [2018] 7 S.C.R. 1128 [2018] 7 S.C.R. A ## MOHAMMED ZAKIR ## v. ## SHABANA & ORS. ## (Criminal Appeal No. 926 of 2018) B ## JULY 23, 2018 ## **[KURIAN JOSEPH AND SANJAY KISHAN KAUL, JJ.]** _Code of Criminal Procedure, 1973 – s.362 – Recalling of the order – High Court recalled its own order, rendering it patently erroneous – Propriety of – Held: Not proper – The whole purpose_ C _of s.362 is only to correct a clerical or arithmetical error – However, High Court sought to re-hear the matter on merits – That is impermissible under law._ ## **Disposing of the appeal, the Court** D **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 whole purpose of Section 362 Cr.P.C. is only to correct a clerical or arithmetical error. What the High Court** E **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 Judge, the earlier order was patently erroneous. That is impermissible under law. [Para 4] [1129-D-E]** - D CRIMINAL APPELLATE JURISDICTION : Criminal Appeal F No. 926 of 2018. From the Judgment and Order dated 28.04.2017 of the High Court of Karnataka at Bengaluru in Crl. Petition No. 2351 of 2017. - Gopal Sankaranarayanan(AC), Shrutanjaya Bhardwaj(AC), - G Joseph Aristotle S., Mrs. Priya Aristotle, Ms. Payal N. Gaikwad, Advs. for the appearing parties. Mohammed Zakir, Appellant-in-person. H 1128 1129 MOHAMMED ZAKIR v. SHABANA & ORS. The Judgment of the Court was delivered by A **KURIAN, J.** 1. Leave granted. 2. We have heard the petitioner, who is appearing in person, Mr. Joseph Aristotle S., learned counsel appearing for Respondent Nos.1 to 4 and Mr. Gopal Sankaranarayanan, learned counsel, who was appointed as an amicus in this matter. B 3. The appellant is aggrieved since the High Court passed an order under Section 362 Cr.P.C. dated 28.04.2017 recalling its own order dated 18.04.2017. The order dated 28.04.2017 reads as under:- “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.” 4. 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 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. Accordingly, we set aside the impugned order dated 28.04.2017. 5. Now that the parties have appeared before us, we have ascertained that the appellant approached the High Court, aggrieved by the notice issued by the Sessions Court on 25.01.2017 in Criminal Appeal No.95/2017. 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. Accordingly, we set aside the order dated 18.04.2017 passed by the High Court and dispose of this appeal with a direction to the Principal City Civil and Sessions Judge, Bengalure to dispose of the Criminal Appeal No.95/2017 expeditiously. C D E F G 6. Pending applications, if any, shall stand disposed of. > Appeal disposed of. H Ankit Gyan