The Hindu: Chennai: Monday, 13 July 2015.
On July 10, Justice P. Devadas of the Madras High
Court recalled an order issued a month back advising mediation between a rape
survivor and a convict.
When the original order was delivered on June 10,
it attracted wide criticism from the civil society and the legal fraternity,
which called the liberal approach to rape cases a bad precedent. Hence, it was
no surprise that his decision to take note of a Supreme Court verdict and
modify his pronouncement was welcomed.
But the High Court’s reassessment has once again
brought to focus the position of law as for the recalling an order is
concerned.
It was only last year that a division bench of the
Madras High Court recalled and omitted two paragraphs of a judgement in which
it observed that the reason for seeking information had to be disclosed in an
RTI application. The amendment was done after it came to light that the RTI Act
itself states that no such reason is necessary to get information.
Jayalalithaa case
In May, the verdict in the disproportionate assets
case involving Chief Minister Jayalalithaa in the Karnataka High Court evoked
questions of whether a court suo motu could revisit its verdict, after claims
of arithmetical errors in the judgement surfaced.
So when can a court recall a judgement it has
delivered and in what circumstances could the power to recall be exercised?
A catena of Supreme Court and High Court
judgements has gone into this question. They primarily involve the
interpretation of specific sections in the civil and criminal procedure codes
that bestow on courts certain inherent powers.
Antulay vs Nayak
One of the often cited cases in this matter is
Antulay vs RS Nayak , in which a seven-member Constitution bench of the apex
court reiterated its powers to recall judgements under certain circumstances.
“The injustice done should be corrected by applying the principle actus curiae
neminem gravabit , an act of the court shall prejudice no one,” the bench said.
In State of Orissa vs Janamohan Das , the Odisha
High Court elaborated the principle set in Antulay and said there has to be
“substantial injury to the suitor” to recall an order.
“..while conceding the power of recall available
to this Court, we would say that the same would be exercisable only in
exceptional cases where the mistake committed by the court is palpable and is
such which, by its own force, has caused substantial injury to a suitor.”
HC bound by CrPC
While the fact that the courts have powers to
recall is a settled one, there are still divisions on when this power could be
exercised.
Senior lawyer K.M. Vijayan said when a matter is
the consequence of a statutory procedure, such as a criminal appeal, the High
Court would be bound by the Criminal Procedure Code (CrPC) and cannot exercise
its inherent powers under Section 482 to recall an order.
Also, once an order is signed, Section 362 of CrPC
bars modification except in cases of minor clerical and arithmetical errors.
“Though in Ms. Jayalalithaa’s case the questions
raised were on the arithmetic, any modification could substantially change the
outcome and hence such a move may not be made,” he said.
However, former Additional Solicitor General, P.
Wilson, said the restriction as envisaged under Section 362 of the CrPC, would
apply only to final orders and not interim ones, as it was in the instant case
being adjudicated by Justice Devadas.
“In such a scenario, the court can exercise its
inherent powers under section 482 and recall and modify orders,” he said,
adding that in case of a writ petition, the High Court would draw its powers to
recall from Article 226 of the Constitution.
“Power of recall exercisable only in exceptional
cases”
.JPG)
.JPG)
