CHAUHAN,J. - (1.) AGGRIEVED by certain strictures passed by this court in judgment dated 12.03.2010, the petitioner, a judicial officer, has approached this court for expunging the same.
(2.) THE brief facts of the case are that the petitioner was posted from June 2008 to June 2011 as District and Sessions Judge-cum-Special Judge, SC/ST (Prevention of Atrocities Act) Cases at Jalore. During this period, vide order dated 9.11.2009, he framed charges against one Mahendra Singh for offences under Sees. 279 and 304 IPC and for offence under Section 3(2)(v) of SC/ST of Prevention of Atrocities Act. Since Mahendra Singh was aggrieved by the said order, he filed a revision petition before this court. Vide judgment dated 12.3.2010, while accepting the revision petition and while quashing the order dated 9.11.2009, a learned Judge of this Court made certain disparaging observations which are as under :- "In view of the above legal position, the impugned order passed by the learned Sessions Judge Jalore seems to be totally illegal, perverse and contrary to the provisions of law. I am sanguine that the learned Sessions Judge by now must have put in more than 20 years of service. It is shocking that after putting such a long period of service, he has not been able to make a distinction between rash and negligent act and the act done intentionally or with knowledge. I am afraid how could he afford,to frame the charges in the offences under Section 279 and 304 of IPC together whereas the gravement or nucleus of both the offences are distinct in nature." As a consequence of the said observations, according to the petitioner, on 26.04.2011 a charge-sheet has been issued against him. Hence, his prayer that the observations made by the learned Judge, which tantamount to strictures against him, should be expunged. Mr . Mahipal Bishnoi, the learned Public Prosecutor, has raised a preliminary issue with regard to the maintainability of this petition. According to the learned counsel, this petition seeks to review the judgment dated 12.03.2010. However, the power to review is non-existent in criminal law. Hence, the petition is not maintainable. On the other hand, Mr. A.K. Rajvanshy, the learned counsel for the petitioner, has drawn a distinction between recall and review. While recalling an order, the Court does not deal with the merit of the case; in reviewing an order/judgment, the Court deals with the merits of the case. In order to buttress this contention, the learned counsel has relied on the case of Vishnu Agarwal vs. State of U.P. & Anr. (AIR 2011 SC 1232). According to the learned counsel, while deleting the strictures, this Court is not required to go into the merits of the case. Hence, this Court would be exercising the power to recall, and not the power of review. Heard the learned counsel for the parties on the preliminary objection.
(3.) IN the case of Asit Kumar Kar vs. State of West Bengal and ORs.(AIR 2009 SC (Supp) 282), a distinction was made by the Hon'ble Supreme Court between the recalling of an order, and reviewing of an order. The Hon'ble Supreme Court observed, "while in review petition, the Court considers on merits, where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but, simply recalls an order which was passed without giving an opportunity of hearing to an affected party". Recently, the same view has been reiterated by the Hon'ble Supreme Court in the case of Vishnu Agarwal (supra). In the present case, this Court is not required to go into the merits of the case, but is merely required to recall the observations made by this Court - observations made without giving an opportunity of hearing to the judicial officer. Therefore, this court is not reviewing the order dated 12.03.2010. It is merely exercising the power to recall an order. Hence, the objection raised by the learned Public Prosecutor is unacceptable. Mr. A.K. Rajvanshy, has further contended that the observations were made by this Court, with regard to the judicial officer's acumen and functioning as a judicial officer, without issuing any notice to him. Thus, the basic principle of natural justice - to hear the other side - has been violated. Secondly, there was nothing on record available before this court for making the said observations. Therefore, the observation is not based on any evidence. It is merely an opinion which has created difficulties for the judicial officer in his service career. Thirdly, such an observation was not even necessary for the just decision of the case. Fourthly, due to the said observations, the Judicial Officer is facing a departmental inquiry, as a charge- sheet has been issued to him, on 26.04.2011. Lastly, relying upon the cases of 'K' a Judicial Officer, (AIR 2001 SC 972), Prakash Singh Teji vs. Northern India Goods Transport Co. Pvt. Ltd. & Anr. (AIR 2009 SC 2304) and on the case of Mahesh Chand Bhagwati vs. The State of Rajasthan (S.B. Criminal Misc. Petition No.188/2001 - decided on 22.02.2001), the learned counsel has contended that repeatedly the Courts have opined that strictures should not be passed against a person without giving him an opportunity of hearing. Moreover, such strictures not only demoralize the judicial officer in particular, but also undermine the subordinate judiciary in general. ;