Safiya Malik

The Calcutta High Court has set aside an ex parte order issued on October 4, 2024, in a criminal revision case, restoring the matter for reconsideration. The court stated that the prior order was passed in violation of the fundamental principle of audi alteram partem, thereby denying the affected parties their right to a fair hearing. The court further held that the bar under Section 362 of the Code of Criminal Procedure (CrPC) does not operate in cases where an order has been passed without giving an opportunity of hearing to the affected parties.

The judgment, delivered by Justice Suvra Ghosh on February 21, 2025, stated: “In view of the law laid down by the Hon’ble Supreme Court in the authority in State of Punjab (supra), this Court is inclined to hold that allowing the revisional application ex parte without granting an opportunity of hearing to the applicants/opposite parties is dehors the principles of audi alteram partem and has resulted in violation of natural justice. Under such circumstances, the bar under Section 362 of the Code shall not operate and inherent power of this Court can be exercised to recall the order and grant an opportunity of hearing to the applicants/opposite parties.”

The case arose out of a criminal revision petition filed by UBS Switzerland AG against an order of the Additional District Judge, 12th Court, Alipore, who had dispensed with the issuance of notice under Section 105 of the CrPC in Criminal Motion No. 213 of 2024. The petition sought to challenge this decision, arguing that the failure to issue notice deprived the complainant of the opportunity to present its case.

On October 4, 2024, the Calcutta High Court set aside the order of the Additional District Judge and directed that notice be issued under Section 105 of the CrPC. Subsequently, the sixth and seventh opposite parties filed an application seeking recall of the October 4 order on the ground that they were not given a chance to be heard before the decision was made.

The applicants seeking recall of the order argued that they were not served with notice and were not given an opportunity of hearing before the order was passed. They contended that the court's failure to provide a fair hearing amounted to a violation of the principle of natural justice, specifically the audi alteram partem rule. They further submitted that the restriction under Section 362 of the CrPC, which bars courts from altering or reviewing their final judgments, does not prevent the recall of an order passed in violation of natural justice. The applicants relied on multiple Supreme Court judgments, including A.R. Antulay v. R.S. Nayak (1988) 2 SCC 602, State of Punjab v. Davinder Pal Singh Bhullar (2011) 14 SCC 770, and Municipal Corporation of Greater Mumbai v. Pratibha Industries Ltd.

On the other hand, the petitioner, UBS Switzerland AG, opposed the recall application, arguing that Section 362 of the CrPC places an absolute bar on altering or recalling a final order. The petitioner contended that once the court disposes of a matter, it becomes functus officio and cannot reconsider its own decision. It further argued that the mere absence of notice does not automatically render an order invalid unless prejudice is demonstrated. The petitioner relied on decisions such as Abdul Basit @ Raju v. Mohd. Abdul Kadir Chaudhary (2014) 10 SCC 754 and Dipak Kumar Mondal v. State of West Bengal (2023 SCC OnLine Cal 1706) to support its position.

The Calcutta High Court examined the applicability of Section 362 of the CrPC in light of previous Supreme Court decisions. It observed that while Section 362 ordinarily prohibits the recall or alteration of a final judgment, this restriction does not apply where an order has been passed without giving the affected party a fair opportunity to be heard. The court referred to the Supreme Court's decision in State of Punjab v. Davinder Pal Singh Bhullar, which held that any judgment pronounced in violation of the principles of natural justice is a nullity and can be recalled to ensure fairness.

The court also distinguished between a "review" and a "recall," noting that while Section 362 bars substantive review of an order, it does not prevent a procedural recall in cases where a decision was issued without hearing all necessary parties. The court cited Ganesh Patel v. Umakant Rajoria (2022 SCC OnLine SC 2050), which stated that recall applications are maintainable when they seek to rectify procedural defects rather than re-examine the merits of a case.

The court further held that it has inherent jurisdiction under Article 215 of the Constitution of India, as a Court of Record, to recall orders that violate principles of fairness. It held that denying the applicants a hearing before issuing the October 4 order had resulted in an unfair adjudication, necessitating corrective action.

The court set aside its previous order dated October 4, 2024, and restored the revisional application for fresh consideration, directing that the matter be listed under the "Fixed Matters" category on March 18, 2025. It stated  that the case would now proceed with all parties being given a fair opportunity to present their arguments.

The judgment concluded with the following order: “Accordingly, CRAN 1 of 2024 is allowed. The order dated 4th October, 2024, in CRR 4314 of 2024, is set aside. The revisional application is restored to its file and number. Let the matter appear under the heading ‘Fixed Matters’ on 18th March, 2025.”

Case Title: UBS Switzerland AG v. The State of West Bengal & Anr.

Case Number: CRR 4314 of 2024

Bench: Justice Suvra Ghosh

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