High Court Cannot Recall Order Passed On Merits Even If Passed Ex-Parte: Bombay High Court

"Section 362 of the CrPC is confined to correcting clerical and arithmetical errors... an order passed on merits cannot be recalled." Bombay High Court, in a ruling dated 30 September 2026, held that the High Court lacks the inherent power to recall a judgment or final order passed on merits in a criminal proceeding, reaffirming that Section 362 of the CrPC acts as an absolute bar against such reviews.

A single bench of Dr. Neela Gokhale observed that once a judgment or final order is signed, it cannot be altered or reviewed, even if the order was passed in the absence of one of the parties.

The applicant (original complainant) sought to recall an order dated 18 September 2025, through which the High Court had quashed a criminal complaint filed under Sections 138 and 141 of the NI Act against the respondent. The applicant contended that their absence during the final hearing was due to a change in legal counsel and procedural delays in filing an NOC, resulting in a denial of a fair hearing. The respondent opposed the application, asserting that the order was passed on merits and that Section 362 of the CrPC strictly prohibits the court from recalling or altering its own final orders.

The primary question before the court was whether the High Court, under its inherent powers, could recall an ex-parte order passed on merits. Furthermore, the court had to determine if the statutory bar under Section 362 of the CrPC prevents the entertainment of a recall application despite claims of a violation of the principles of natural justice.

Scope of Section 362 CrPC

The Court noted that the previous order sought to be recalled was not a procedural oversight but a detailed adjudication on merits. The bench highlighted that the court had meticulously examined the averments and the application of Sections 138 and 141 of the NI Act before reaching its conclusion. The court emphasized that the legislative intent behind Section 362 is to ensure the finality of criminal proceedings.

No Power to Review or Recall

The court underscored that Section 362 of the CrPC restricts the court's power strictly to the correction of clerical or arithmetical errors. It clarified that once a criminal case is decided on merits, the High Court becomes functus officio. Relying on settled precedents, the court observed that the inherent powers under Section 482 of the CrPC cannot be invoked to circumvent the express prohibition contained in Section 362 of the CrPC.

Prohibition on Review "This Court has considered the averments made in the Complaint of the Applicant as well as the documents on record. In doing so, the Court examined and applied the provisions of Sections 138 and 141 of the Negotiable Instruments Act, 1881, in the context of the facts of the case."

Absence of Party Does Not Vitiate Merits

Addressing the applicant's contention regarding the lack of representation, the bench noted that the case had been pending since 2014 and the applicant had previously sought multiple adjournments. The court concluded that the mere absence of the party during the final hearing does not render an order passed on merits susceptible to recall, as the court had already applied its judicial mind to the materials on record.

Finality of Criminal Proceedings

The court reiterated that there was no infirmity in the original order that would warrant a review. Consequently, finding no cogent reason to bypass the statutory bar, the court dismissed the application, maintaining the sanctity of the finality principle in criminal jurisprudence.

Date of Decision: 30 September 2026