Paragraph numbers below are the court’s original numbering, recovered from the source text.
22. Objecting to the said contention on behalf of Khosla Group, the Bakshi Group reiterated the observations made in Judgment dated 13.08.2020 with reference to the earlier order of this Court and further asserted that the High Court did not have power to review or alter its order passed while exercising criminal jurisdiction as per Section 362 of CrPC.
23. The High Court while passing the Impugned Order dated 05.05.2021, did take note of the objections of the Bakshi Group and observed that there can be no debate that a review petition does not lie under the CrPC, except for correction of clerical and arithmetical errors but, still, it proceeded to recall the Judgment dated 13.08.2020 on the ground that the fact of withdrawal of the Company Petition before the CLB (now NCLT) was not brought to the notice of the court earlier but only now through the review application and as a consequence, directed Criminal Miscellaneous (Co) No. 4 of 2019 to be listed for consideration. It is this order dated 05.05.2021 which is under challenge before this Court.
24. The learned Senior Counsel for the Appellants contends that there is no power of review under Criminal Procedure Code of 1973. The only power available under Section 362 of CrPC is to correct a clerical or arithmetical error. To substantiate this contention, reliance is placed upon the decision of this Court in Sanjeev Kapoor vs. Chandana Kapoor and Others1 which held that that there are only two relaxations given from the rigour of Section 362 of CrPC where such power to alter or review is provided either (i) by the CrPC itself or (ii) by any other law for time being in force and no such relaxations are met out in the Impugned Order. He further highlighted that the High Court in Impugned Order agreed with the proposition that review was not maintainable, yet decided to review and recalled its Judgment dated 13.08.2020. He contends that this Court while dealing with the litigation between two groups involving similar applications under section 340 of CrPC, vide Judgment dated 08.05.2014 had directed CLB/NCLT to decide the matter and restrained the High (2020) 13 SCC 172 1456 Court to proceed with the application under section 340 of CrPC. The learned Counsel contends that the High Court acted in violation of this Court’s above judgment while passing the Impugned Order. He prays for setting aside of Impugned Order dated 05.05.2021 passed by the High Court.
25. Per contra, the learned Counsel for the Respondents, contends that the Impugned Order dated 05.05.2021 is a classic manifestation of the court undoing its own wrong. He submits that the Order was not passed under any statutory provision but by the court acting ex debito justitiae in order to undo the injurious effect flowing from its factually erroneous observation included in Judgment dated 13.08.2020. He relied on the order passed by this Court in Ganesh Patel vs. Umakant Rajoria2 which relying on Grindlays Bank Ltd. vs. Central Government Industrial Tribunal and Others3 has carved out a distinction between “procedural review” and “substantive review” and has clarified that when it comes to procedural review, the rigour of Section 362 of CrPC will not be attracted. He submits that the recall in such circumstances is a recall simpliciter and not a review ensuing recall which is on merits. He further asserted that the High Court in the Impugned Order has clearly recorded that it is not entering into the merits of case and merely correcting the mistake it made in Judgment dated 13.08.2020 due to absence of the correct material factual development and thus sustainable. Further, it is contended that while passing its Judgment dated 13.08.2020, the High Court was not dealing with a criminal proceeding per se, as the outcome of application filed under Section 340 of CrPC does not directly result into any sentence or fine or any other implication which is a necessary outcome for a proceeding to be of criminal in nature. The proceedings under section 340 of CrPC are just to ascertain whether an offence of perjury has been prima facie made out. He, therefore, prays for dismissal of the appeal.
26. Having heard the learned Counsels for the parties, and on perusal of the material on record, the primary issue which arises for consideration of this Court is “whether a review or recall of an order passed in a 2022 SCC OnLine SC 2050 (1980) Supp. SCC 420 [2025] 8 S.C.R. Vikram Bakshi and Others v. R.P. Khosla and Another criminal proceeding initiated under section 340 of CrPC is permissible or not?” In our opinion, the resolution of the said issue would lead to conclusion of present petition.
27. The law relating to power of a criminal court to review or alter its own judgment or order is governed by the provisions of Section 362 of CrPC (equivalent to Section 403 of Bhartiya Nagrik Suraksha Sanhita, 2023). The Provision explicitly provides that except for clerical and arithmetical error, no court shall alter or review its judgment. It is appropriate to refer to the bare provision of Section 362 of CrPC which reads as follows: “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.” 27A. The comparison of the power of review of a civil court vis-a-vis power of criminal court to review or recall its own judgment or order arising out of criminal proceedings has been put to rest by numerous decisions of this Court. It would be appropriate at this juncture to discuss the relevant decisions of this court pertaining to review or recall power of criminal courts to ascertain the correct position of law before proceeding to refer and deal with the factual matrix of the present case.
28. The scope of Section 362 of CrPC has been discussed and elaborated by a three-judge bench decision of this Court in State of Kerala vs. M.M. Manikantan Nair,4 wherein it held that CrPC does not authorize High Court to review its judgment or order passed either in exercise of its appellate, revisional or original jurisdiction. Section 362 explicitly prohibits the court after it has signed its judgment or final order disposing of case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no criminal court can review its own judgment or order after it is signed. (2001) 4 SCC 752 1458
29. Similarly, in Hari Singh Mann vs. Harbhajan Singh Bajwa and Others5, this Court observed that section 362 of CrPC is based on the acknowledged principle of law that once a matter is finally disposed of by a court, the said court, in absence of specific statutory provisions, becomes functus officio and is disentitled to entertain fresh prayer for same relief.
30. In Sanjeev Kapoor (supra) it has been reiterated that Section 362 of CrPC imposes an embargo on a criminal court to alter and review its own judgment. Elaborating on the two relaxations envisioned by the legislature, this Court explained that an alteration or review is only feasible if it is so provided by the said legislation itself or by any other law in force. It was also clarified that such an attempt to alter or review is also not feasible or permissible through a reference to Section 482 of CrPC for being expressly barred under Section 362 of CrPC.
31. This Court, however, in exceptional cases, has carved out limited scope for exercise of review power by criminal courts. In Grindlays Bank Ltd. (supra), it was observed that review can be distinguished between “procedural review” and “substantive review”. A “procedural review” is inherent or implied in a court to set aside a palpably erroneous order passed under misapprehension by it, however, a “substantive review” is when error sought to be corrected is one of law and is apparent on the face of the record. It is in the latter sense, this Court, held that no review lies on merits unless specifically provided under a statute.
32. This distinction has been further clarified in Budhia Swain and Others vs. Gopinath Deb and Others6, wherein this Court has laid down certain grounds on which a criminal court can review or recall its judgment or order i.e. when the proceedings before it itself suffers from an inherent lack of jurisdiction or, a fraud is played upon court to obtain the order or, a mistake of court causing prejudice to party or the order was in ignorance of non-serving of necessary party or party had died and estate was not represented. It was further clarified that these exceptions were subjected to the limitation that such grounds cannot be raised to recall or review if they were available during the original action and was not availed. (2001) 1 SCC 169 (1999) 4 SCC 396 [2025] 8 S.C.R. Vikram Bakshi and Others v. R.P. Khosla and Another
33. In Ganesh Patel (supra) this Court held that application for recall seeking “procedural review” and not “substantive review” to which Section 362 of CrPC be attracted is permissible. This Court upheld the order of the High Court wherein it recalled the earlier order passed in the absence of the Respondent and based on false information.
34. A careful consideration of the statutory provisions and the aforesaid decisions of this Court clarify the now-well-settled position of jurisprudence of Section 362 of CrPC which when summarize would be that the criminal courts, as envisaged under the CrPC, are barred from altering or review their own judgments except for the exceptions which are explicitly provided by the statute, namely, correction of a clerical or an arithmetical error that might have been committed or the said power is provided under any other law for the time being in force. As the courts become functus officio the very moment a judgment or an order is signed, the bar of Section 362 CrPC becomes applicable, this, despite the powers provided under Section 482 CrPC which, this veil cannot allow the courts to step beyond or circumvent an explicit bar. It also stands clarified that it is only in situations wherein an application for recall of an order or judgment seeking a “procedural review” that the bar would not apply and not a substantive review” where the bar as contained in Section “362 CrPC is attracted. Numerous decisions of this Court have also elaborated that the bar under said provision is to be applied stricto sensu. 34A. Having said that, the following exceptional circumstances may be identified, wherein a criminal court is empowered to alter or review its own judgment or a final order under Section 362 CrPC: a. Such power is expressly conferred upon court by CrPC or any other law for the time being in force or; b. The court passing such a judgement or order lacked inherent jurisdiction to do so or; c. A fraud or collusion is being played on court to obtain such judgment or order or; d. A mistake on the part of court caused prejudice to a party or; 1460 e. Fact relating to non-serving of necessary party or death leading to estate being non-represented, not brought to notice of court while passing such judgment or order. It needs to be reiterated that all these exceptions are only exercisable for seeking a recall or review of an order or judgment, if a ground that is raised was not available or existent at the time of original proceedings before the Court. Mere fact that the said ground, although available, was not raised or pressed during the concerned proceedings, does not provide for an exemption to the parties to assert it as a ground. Moreover, the said power cannot be invoked as a means to circumvent the finality of the judicial process or mistakes and/or errors in the decision which are attributable to a conscious omission by the parties.
35. Before we delve into the facts of the instant case in an attempt to sieve out the correct jurisprudence from the gamut of the arguments raised by the parties before us, we find it appropriate to first consider the maintainability of the Review Petition No. 579 of 2020 under Order XLVII of the Code of Civil Procedure, 1908 preferred by the Khosla Group before the High Court. The Khosla Group filed the said review under the provisions of CPC 1908 seeking recall of Order dated 13.08.2020 passed in Criminal Miscellaneous (Co.) No. 4 of 2019 which was filed under section 340 of the CrPC.
36. The scheme of CrPC as enshrined in its long title defines it is an Act “to consolidate and amend the law relating to Criminal Procedure”. Further, Section 4 of CrPC provides for scope of the CrPC which is reproduced herein: “4. Trial of offences under the Indian Penal Code and other laws. (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner of place of investigating, inquiring into, trying or otherwise dealing with such offences.” [2025] 8 S.C.R. Vikram Bakshi and Others v. R.P. Khosla and Another The provisions of Sub-section (1) of Section 4 of CrPC expressly mandates an investigation, inquiry or trial of offences under Indian Penal Code of 1860 to be conducted strictly as per the procedure provided in the provisions of the CrPC. The definition of “inquiry” as stipulated in Section 2 (g) of CrPC means every inquiry, other than a trial, conducted under the CrPC by a Magistrate or Court.
37. The intent of proceedings as can been seen from provision of Section 340 of the CrPC, is to determine as to whether a complaint ought to be made in writing by concerned court to the competent Magistrate for prosecution of accused in respect of an offence alleged to have been committed in or in relation to a proceeding in a court. Section 340 of CrPC empowers the court that such determination may be done by way of holding preliminary inquiry to ascertain sufficient material to justify the initiation of prosecution against the accused. The nature of such an inquiry is not administrative or mere procedural. It is an initial step to a course which may lead to criminal prosecution, and this step is taken by a court with avowed purpose of examining whether a person should be prosecuted for an offence which, more often than not, relates to fabricating or giving false evidence, or committing other offences affecting the administration of justice, all of which are offences punishable under the Indian Penal Code.
38. If the nature of proceeding is such, the outcome of which, may result in a trial before a criminal court and, upon conviction, entail punishment for an offence under the penal law, then such a proceeding must, in substance, be treated as criminal in nature. Section 4(1) of the Code mandates that all offences under the Indian Penal Code. must be investigated, inquired into, tried, and otherwise dealt with in accordance with the procedure prescribed by the CrPC. The nature of the proceeding is determined by its substance and consequences it may result into. Thus, a proceeding initiated under section 340 of CrPC is in the nature of criminal proceeding and governed by the provisions of the CrPC, as a consequence, thereof, all the procedural safeguards, consequences, and effects thereto associated with a criminal proceeding under CrPC are also attracted to it.
39. Considering that the proceedings initiated under section 340 of CrPC are of criminal nature and governed by the provisions of CrPC which is a self-contained Code, and includes entire procedure within itself to deal with the proceedings initiated under its provisions, there is 1462 no scope for application of provisions of any other procedural law until specifically provided under such law.
40. In the present case, the review application was filed by Khosla Group under Order XLVII of CPC 1908 before High Court. The CPC 1908 does not expressly provide for a provision wherein a review can be filed in the proceedings of criminal nature initiated under CrPC. As a result, the said petition filed by Khosla Group under provisions of CPC 1908 could not have been entertained by the High Court for being patently not maintainable in light of above discussion. This finding itself leads to the disposal of case at hand, however, in our view, it is pertinent to delve into the merits of the review application so moved by the Khosla Group and leading to the Impugned Order vis-à-vis the jurisdiction and expanse of Section 362 of CrPC.
41. To deal with the case at hand, it is essential to peruse the material- on-record, especially the Impugned Order dated 05.05.2021 and the Judgment dated 13.08.2020 in juxtaposition to the scope and applicability of Section 362 CrPC. While it appears that the withdrawal of the CP 114 of 2007 pending before the CLB/NCLT (now) impressed the High Court to recall its Judgment dated 13.08.2020 vide the Impugned Order dated 05.05.2021 but a perusal of the former would show that it was not premised exclusively on the pendency of the CP 114 of 2007. The High Court had gone on to observe the intertwined nature of the allegation with the on-going proceedings between the parties before the NCLT. Moreover, it was originally pursuant to the binding directions of this Court in Judgment dated 08.05.2014 passed in SLP (Criminal) No. 6873 of 2010 to the effect that aforesaid Company Petition and the application filed by Ms. Sonia Khosla under Section 340 CrPC alleging perjury on part of the Bakshi Group before the then CLB were to be decided by the CLB/NCLT and the High Court was directed not to proceed with Criminal Miscellaneous (Co.) No. 3 of 2008.
42. Hypothetically, even the withdrawal of the CP 114 of 2007 by Ms. Sonia Khosla, does not disturb or hamper the directions and observations of this Court in Judgment dated 08.05.2014 with respect to vesting of jurisdiction with the CLB/NCLT. The High Court would have been required to therefore re-assess the binding nature of this Court’s Order. Such an application for recall could not have been held to be maintainable by the High Court owing to it being a prima facie attempt to circumvent the position of law and the letter and spirit of the provision/statute. [2025] 8 S.C.R. Vikram Bakshi and Others v. R.P. Khosla and Another
43. Further, neither the Impugned Order falls within the ambit of “procedural review” to not attract the bar of Section 362 CrPC, nor is it the case of the Khosla Group that they were either denied a hearing before the High Court or were not given an opportunity to inform the court of the said development. It is pellucid that Ms. Sonia Khosla of the Khosla Group had herself withdrawn the CP 114 of 2007 on 07.02.2020 that too, more than six months before the passing/pronouncement of the Judgment dated 13.08.2020. It rather appears as an intentional attempt to mislead the court. An explicit statement is recorded on the part of the Khosla Group in paragraph 23 of the Judgment dated 13.08.2020 (reproduced above) that NCLT was still seized of the proceedings vis- à-vis CP 114 of 2007. The ground on which recall was later sought was one that was fully available to the Khosla Group at the time of the original hearing and thus, could have been duly raised but was not so taken. Later, in their attempt to abuse the process, they had moved the Company Application No 579 of 2020 for review that too under Order XLVII of CPC, 1908 which, any way, would not be permissible leading to passing of the Impugned Order by the High Court.
44. Such an act to undermine the finality of the judicial proceedings cannot be permitted especially in such situations of deliberate omissions or misrepresentation on the part of the parties before the court and thereafter attempting to defend themselves and obtaining the verboten order dated 05.05.2021, substantially reviewing and recalling the Judgment dated 13.08.2020, under the garb of “procedural review” which is impermissible.
45. In light of the aforesaid, we cannot allow the Impugned Order dated 05.05.2021 to hold the field, being antithetical to the law as laid down by this Court relating to Section 362 of CrPC and, thus, ought to be set aside. Ordered accordingly.
46. The appeal is allowed in the above terms.
47. Pending application(s), if any, shall stand disposed of. Result of the case: Appeal allowed. †Headnotes prepared by: Divya Pandey