Full Judgment Text
2025 INSC 1020
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2025
[ @ SLP (CRIMINAL) NO. 3425 OF 2022 ]
VIKRAM BAKSHI AND OTHERS … APPELLANTS
VERSUS
R.P. KHOSLA AND ANOTHER … RESPONDENTS
J U D G M E N T
AUGUSTINE GEORGE MASIH, J .
1. Leave granted.
2. The instant Criminal Appeal assails the Judgment and
Order dated 05.05.2021 (hereinafter “Impugned Order”)
passed by the High Court of Delhi (hereinafter, “High
Court”), whereby it recalled its earlier Judgment dated
13.08.2020 which had disposed of Criminal Miscellaneous
(Co.) No. 4 of 2019 filed under Section 340 Criminal
Procedure Code, 1973 (hereinafter, “CrPC”) against the
Signature Not Verified
Appellants for prosecution of offences of perjury and
Digitally signed by
JATINDER KAUR
Date: 2025.08.22
13:43:53 IST
Reason:
directed that the said application be listed for hearing. In
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 1 of 27
the Judgment dated 13.08.2020, the High Court declined
to interfere in the matter in view of the directions of this
Court in Judgment dated 08.05.2014 passed in SLP
(Criminal) No. 6873 of 2010 whereby dispute between the
parties in relation to their Company Petition No.114 of
2007 (hereinafter “CP 114 of 2007”) and other related
matters arising out of it was to be decided by Company
Law Board (hereinafter, “CLB”).
3. The Appellants before us are Mr. Vikram Bakshi, Mr.
Vinod Surha and Mr. Wadia Prakash while Mr. R.P. Khosla
is the Contesting Respondent No.1 and Mr. Anand Mohan
Mishra is Proforma Respondent No.2.
4. Briefly, the facts relevant for adjudication of the case in
hand is that two groups, namely, the Khosla Group
(comprising of Mr. R.P. Khosla, Mr. Deepak Khosla - son
of R.P. Khosla and Ms. Sonia Khosla - wife of Mr. Deepak
Khosla) and the Bakshi Group (comprising of Mr. Vikram
Bakshi, Mr. Vinod Surha and Mr. Wadia Prakash) came
together in relation to development of a resort at Kasauli
in the State of Himachal Pradesh on the land owned by the
Khosla Group where the Bakshi Group was to finance and
manage the entire project.
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 2 of 27
5. The undisputed facts as presented and extracted from
material on record are that a Memorandum of
Understanding dated 21.12.2005 (hereinafter “MoU”) was
entered between Mr. Deepak Khosla (representing Khosla
Group), Mr. R.P. Khosla, Mr. Vikram Bakshi and
Montreaux Resorts Private Limited (hereinafter “MRPL”) for
development of the project.
6. The MRPL was a Special Purpose Vehicle incorporated
under the provisions of the Companies Act, 1956 for
execution of the said project. As the terms of MoU required
transferring of shareholding in MRPL by Khosla Group to
Mr. Vikram Bakshi subject to fulfilment of certain
conditions, an Agreement dated 31.03.2006 was executed
between Ms. Sonia Khosla, Mr. R.P. Khosla, Mr. Vikram
Bakshi and MRPL, transferring 51% shareholding in MRPL
to Mr. Vikram Bakshi. Pursuant to that, Mr. Vinod Surha
and Mr. Wadia Prakash (of Bakshi Group) were appointed
as Additional Directors in the MRPL.
7. Owing to subsequent disagreements, Ms. Sonia Khosla in
her capacity as minority shareholder of MRPL, filed CP 114
of 2007 under section 397/398 of Companies Act, 1956 on
13.08.2007 before CLB alleging oppression and
mismanagement by the Bakshi Group, inter alia,
contending that her shareholding in MRPL had been
illegally reduced from 49% to 36% and sought removal of
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 3 of 27
the Directors representing the Bakshi Group from the
Board of Directors.
8. An application, C.A. No. 572/2007, in CP 114 of 2007 was
filed by the Khosla Group praying to restrain the Bakshi
Group from holding a meeting between themselves
regarding the affairs of MRPL scheduled on 26.12.2007
claiming that the appointment of Directors belonging to
the Bakshi Group was not confirmed as per the Minutes of
Annual General Meeting (hereinafter “AGM”) dated
30.09.2006 of MRPL, implying that they had ceased to be
Directors and therefore cannot hold meeting of MRPL. CLB
accepted the request and vide Order dated 24.12.2007
directed deferment of the aforesaid meeting scheduled for
26.12.2007.
9. Thereafter, while dealing with the CP 114 of 2007, the CLB
vide Order dated 31.01.2008 directed maintenance of
status quo with respect to the shareholding and
composition of the Board of Directors in MRPL as existed
on the date of the filing of said Company Petition by Ms.
Sonia Khosla.
10. Aggrieved by the Order dated 31.01.2008, Mr. R.P. Khosla
moved the High Court by filing Company Appeal (SB) No.
7 of 2008, which came to be disposed of as not pressed by
the Appellant therein vide Order dated 11.04.2008 as the
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 4 of 27
High Court was informed that the parties have agreed that
CP 114 of 2007 shall be withdrawn by Ms. Sonia Khosla
and the dispute has already been referred to arbitration as
per the terms of Agreement dated 31.03.2006.
Furthermore, the parties had agreed to maintain status
quo with respect to their shareholding in MRPL as it stood
at the time of filing of CP 114 of 2007.
11. It needs mention here that Ms. Sonia Khosla had also
assailed the same Order dated 31.01.2008 passed by the
CLB in Company Appeal (SB) No. 6 of 2008 in which the
High Court relying extensively upon the Order dated
11.04.2008 passed in Company Appeal (SB) No. 7 of 2008
dismissed the said appeal vide Order dated 22.04.2008
noting that agreement in terms of maintaining of status
quo in shareholding and Board of Directors of MRPL has
been achieved between parties.
12. In an attempt to prolong the litigation and not to be
confined to 36% shareholding in MRPL, Mr. R.P. Khosla
and Ms. Sonia Khosla had filed review petitions against
Order dated 11.04.2008 in Company Appeal (SB) No. 7 of
2008 and Order dated 22.04.2008 in Company Appeal (SB)
No. 6 of 2008 respectively before the High Court, these
came to be dismissed on 06.05.2008.
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 5 of 27
13. In the interregnum, Bakshi Group filed an application
being C.A. No. 1 of 2008 in CP 114 of 2007 before CLB
seeking vacation of its Order dated 24.12.2007 leading to
deferment of the meeting of MRPL scheduled on
26.12.2007. It was asserted in the said application that
Mr. Vinod Surha and Mr. Wadia Prakash were confirmed
as Directors of the MRPL as per the minutes of AGM held
on 30.09.2006. It is at this stage, the litigation between the
parties took a different turn altogether.
14. Alleging the Minutes of AGM of the MRPL dated
30.09.2006 as filed by Bakshi Group in C.A. No. 1 of 2008
are forged, Ms. Sonia Khosla filed an application under
Section 340 of CrPC before the CLB seeking their
prosecution for perjury.
15. However, citing inaction on the part of CLB, Ms. Sonia
Khosla moved the High Court by filing Criminal
Miscellaneous (Co.) No. 3 of 2008 seeking same relief of
initiation of prosecution against Bakshi group under
section 195(1)(b) and 195(4) read with section 340 (1) of
CrPC for forgery and perjury with reference to claim made
in C.A. 1 of 2008 and concerned affidavits filed by the
Bakshi Group in CP 114 of 2007 before CLB.
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16. Herein, the High Court, vide an interim Order dated
15.02.2010 directed the Registrar (Vigilance) of the High
Court to hold a preliminary inquiry into the genuineness
of the minutes of AGM dated 30.09.2006. This order dated
15.02.2010 was challenged by the Bakshi Group in SLP
(Criminal) No. 6873 of 2010 contending that the Criminal
Miscellaneous (Co.) No. 3 of 2008 filed by Ms. Sonia Khosla
under section 340 of CrPC before the High Court was not
maintainable.
17. This Court, vide Judgment dated 08.05.2014 in SLP
(Criminal) No. 6873 of 2010, passed a consent order
recording the submission of the parties that once the
Company Petition i.e., CP 114 of 2007 itself is decided, the
issue relating to the genuineness of the minutes of AGM
dated 30.09.2006, as raised in the application under
Section 340 of CrPC before the CLB, would also be
addressed by the CLB. This Court accordingly directed the
CLB to decide CP 114 of 2007 filed by Ms. Sonia Khosla
within a period of six months from the date of receipt of a
copy of the order. It was further directed that the High
Court ought not proceed further with the application
moved by Ms. Sonia Khosla under Section 340 of CrPC.
18. The relevant part of the Judgment dated 08.05.2014
passed by this Court is produced herein:
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“21. In fact, though the learned Senior Counsel for the parties had
argued the matters before us at length on the previous occasions,
at the stage of conclusions of the arguments, the learned Senior
Counsel Mr. Cama appearing for Khosla Group suggested for an
early decision of the Company Petition before the CLB as a better
alternative so that at least main dispute between the parties is
adjudicated upon at an early date. He was candid in his
submission that the issues which are subject matter of these two
Special Leave Petitions and arise out of the proceedings in the
High Court, have their origin in the orders dated 31.1.2008,
which is an interim order passed by the CLB. He thus, pointed
out that once the Company Petition itself is decided, the issues
involved therein namely whether Board meeting dated
14.12.2007 was illegal or whether Board meeting dated
30.9.2006 was barred in law would also get decided. In the
process the CLB would also be in a position to decide as to
whether minutes of AGM of the Company allegedly held on
30.9.2006 are forged or not and on that basis application under
Section 340 Cr. PC which is filed before the Company Law Boared
[sic] Board would also be taken care of by the CLB itself. Learned
Senior Counsels appearing for the Bakshi Group immediately
agreed with the aforesaid course of action suggested by Mr.
Cama. We are happy that at least there is an agreement between
both the parties on the procedural course of action, to give quietus
to the matters before us as well. In view of the aforesaid
consensus, about the course of action to be adopted in deciding
the disputes between the parties, we direct the Company Law
Board to decide Company Petition No. 114 of 2007 filed before it
by Ms. Sonia Khosla within a period of six months from the date
of receiving a copy of this order. Since, it is the CLB which will be
deciding the application under Section 340 Cr PC filed by Ms.
Sonia Khosla in the CLB, High Court need not proceed further
with the Criminal Misc. (Co.). No. 3 of 2008. Likewise the question
whether Mr. R.K. Garg was validly inducted as a Director or not
would be gone into by the CLB, the proceedings in Co. Appeal No.
(SB) 23 of 2009 filed by Mr. R.K. Garg in the High Court, also
become otiose.
22. The only aspect on which some directions need to be given
are, as to what should be the interim arrangement. The Bakshi
Group wants orders dated 31.1.2008 passed by CLB to continue
the interregnum. The Khosla Group on the other hand refers to
orders dated 11.4.2008 as it is their submission that this was a
consent order passed by the High Court after the orders of the
CLB and, therefore, this order should govern the field in the
meantime.
23. After considering the matter, we are of the opinion that it is
not necessary to either enforce orders dated 31.1.2008 passed
by the CLB or orders dated 11.4.2008 passed by the High Court.
Fact remains that there has been a complete deadlock, as far as
affairs of the Company are concerned. The project has not taken
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 8 of 27
off. It is almost dead at present. Unless the parties re-concile,
there is no chance for a joint venture i.e. to develop the resort, as
per the MOU dated 21.12.2005. It is only after the decision of
CLB, whereby the respective rights of the parties are crystallised,
it would be possible to know about the future of this project. Even
the Company in question is also defunct at present as it has no
other business activity or venture. In a situation like this, we are
of the opinion that more appropriate orders would be to direct the
parties to maintain status quo in the meantime, during the
pendency of the aforesaid company petition before the CLB.
However, we make it clear that if any exigency arises
necessitating some interim orders, it would be open to the parties
to approach the CLB for appropriate directions.
24. Both these petitions are disposed of in the aforesaid terms.
All other pending I.As including criminal contempt petitions and
petitions filed under Section 340 Cr. PC are also disposed of as
in the facts of this case, we are not inclined to entertain such
application. No costs.”
19. The Criminal Miscellaneous (Co.) No. 3 of 2008 came to be
dismissed vide Order dated 03.12.2018 of the High Court
in consonance with Judgment dated 08.05.2014 passed in
SLP (Criminal) No. 6873 of 2010 by this Court.
20. Reverting to the High Court’s Orders dated 11.04.2008
and 22.04.2008 in Company Appeal (SB) No. 7 of 2008 and
Company Appeal (SB) No. 6 of 2008 respectively, a
Contempt Petition being C.C.P. (Co.) No. 1 of 2009, was
filed by the Khosla Group before the High Court alleging
wilful disobedience of abovesaid Orders dated 11.04.2008
and 22.04.2008, this petition came to be withdrawn with
liberty to file afresh with a proper array of parties.
21. Thereafter, the Khosla Group filed another application
being Criminal Miscellaneous (Co) No. 4 of 2019 under
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 9 of 27
Section 340 CrPC before the High Court alleging that the
Bakshi Group had filed a counter-affidavit dated
24.02.2010 in C.C.P. (Co.) No. 1 of 2009 which contained
false and contradictory statements. This application was
disposed of by the High Court vide Judgment dated
13.08.2020, observing that the CLB (which has now been
replaced by National Company Law Tribunal, hereinafter
“NCLT”) was seized of the matter as submitted by the
Khosla Group that the CP 114 of 2007 was pending before
NCLT, further taking note of the Judgment dated
08.05.2014 passed in SLP (Criminal) No. 6873 of 2010 by
this Court that the CP 114 of 2007 and application under
section 340 of CrPC was to be decided by the CLB/NCLT,
the High Court decided not to interfere in the issue.
Relevant portion of the Judgment dated 13.08.2020
passed by the High Court reads as follows:-
“20. Broadly understood, the claim of the Petitioner is that if
the claim of the Respondents in C.A. No.1/2008 is that they
were elected in the AGM held on 30.09.2006, then no EGM took
place on 28.06.2006 and they were not elected in the said
EGM. As a corollary if they had been elected in the EGM then
a claim of having been elected in the AGM held on 30.09.2006
is false and the Minutes are forged, making the Respondents
liable to punishment for perjury.
21. In my view the allegations in the present petition, directly
or indirectly touch upon the Minutes of the AGM of 30.09.2006,
which is the subject matter of adjudication before NCLT. While
Mr. Khosla urges that this petition can be independently
decided as it relates to the alleged EGM and certain other
issues raised therein, but on a holistic reading of the petition,
this Court is of the opinion that any decision in the present
petition will have a bearing on the genuineness of AGM dated
30.09.2006 and other aspects sub-judice before NCLT, as the
controversies are intrinsically linked.
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 10 of 27
22. It is apparent from the order passed by the Supreme Court,
which was a consent order, that the parties chartered a course
of action for further litigation and the path chosen was to have
the entire dispute decided before the then CLB (now NCLT). In
fact, it was the Petitioner Group which had put forth before the
Supreme Court that once the Company Petition is decided, the
connected issues of the alleged illegalities in the various Board
Meetings would be taken care of, including allegations qua
AGM held on 30.09.2006. In this light Supreme Court directed
the CLB to decide the Co. Pet. No. 114/2007 as also the
Application under Section 340 Cr.PC. Apposite would it be to
emphasize that the Supreme Court categorically directed the
High Court not to proceed with Crl. Misc. (Co.) No. 3/2008 and
the said petition has been dismissed by this Court, in the light
of the observation of the Supreme Court.
23. It is not disputed by Mr. Khosla that the NCLT is even
currently seized of the Petitions/ Applications, as referred to in
the order of the Supreme Court, between the two Groups. Thus
in the light of the order of the Supreme Court, it is not proper
for this Court to entertain the present Petition at this stage.
Petitioner may approach the NCLT, in accordance with law, if
so advised.
24. In all probability once the proceedings pending before the
NCLT end, the creases shall be ironed out with respect to the
EGM also. Nonetheless, in case the issues raised herein still
survive after the proceedings end before NCLT, it shall be open
to the Petitioner to approach this Court, in accordance with
law.
25. It is made clear that this Court has not expressed any view
on the merits of this case or with respect to any inter-se
litigation between the parties.”
21A. Khosla Group, thereafter, moved an application under
Order XLVII of the Code of Civil Procedure, 1908, seeking
review and recall of the Judgment dated 13.08.2020
alleging that CP 114 of 2007 was withdrawn by Ms. Sonia
Khosla on 07.02.2020 with liberty to file a fresh petition
and this fact was not brought to the notice of the court
prior to the passing of the Judgment dated 13.08.2020.
Moreover, it was contended that in Criminal Miscellaneous
(Co) No. 4 of 2019 allegations of false affidavits being filed
by Respondent No.2 on behalf of Bakshi Group had been
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 11 of 27
made and, therefore, the same should be heard on its
merits without relegating the dispute to the NCLT.
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.
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 12 of 27
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
1
Kapoor and Others 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
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.
1
(2020) 13 SCC 172
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 13 of 27
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
2
Court in Ganesh Patel vs. Umakant Rajoria which
relying on Grindlays Bank Ltd. vs. Central Government
3
Industrial Tribunal and Others 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
2
2022 SCC OnLine SC 2050
3
1980 Supp SCC 420
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 14 of 27
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 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
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 15 of 27
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
4
State of Kerala vs. M.M. Manikantan Nair , 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.
4
(2001) 4 SCC 752
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 16 of 27
29. Similarly, in Hari Singh Mann vs. Harbhajan Singh
5
Bajwa and Others , 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,
5
(2001) 1 SCC 169
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 17 of 27
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
6
Swain and Others vs. Gopinath Deb and Others ,
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.
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.
6
(1999) 4 SCC 396
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 18 of 27
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:
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 19 of 27
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;
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.
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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.”
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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.
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 22 of 27
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 no
scope for application of provisions of any other procedural
law until specifically provided under such law.
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 23 of 27
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
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 24 of 27
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.
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
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 25 of 27
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.
Criminal Appeal @ SLP (Crl.) No.3425/2022 Page 26 of 27
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.
……...……….……………………..CJI.
[ B. R. GAVAI ]
………..………..……………………..J.
[ AUGUSTINE GEORGE MASIH ]
NEW DELHI;
AUGUST 20, 2025.
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