R/CR.RA/1510/2024 ORDER DATED: 08/04/2026 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/CRIMINAL REVISION APPLICATION (AGAINST ORDER PASSED BY SUBORDINATE COURT) NO. 1510 of 2024 With R/CRIMINAL REVISION APPLICATION NO. 1716 of 2024 ========================================================== RAJIV SURESHBHAI SHETH Versus STATE OF GUJARAT & ANR. ========================================================== Appearance: MR YATIN SONI(868) for the Applicant(s) No. 1 MS MARIYA M DALAL(3957) for the Applicant(s) No. 1 MR DHRUV D DESAI(9909) for the Respondent(s) No. 2 MS JYOTI BHATT APP for the Respondent(s) No. 1 ========================================================== CORAM:HONOURABLE MS. JUSTICE GITA GOPI Date : 08/04/2026 ORDER 1. In Criminal Revision Application No.1510 of 2024, the prayer is made to quash and set aside the order dated 10.09.2024 passed in Criminal Miscellaneous Application No.1864 of 2024 by the learned 3rd Additional District and Sessions Judge, Ahmedabad (Rural) by which the Sessions Court rejected the recall application. 2. In Criminal Revision Application No.1716 of 2024, the prayer is made to quash and set aside the impugned judgment and order dated 03.06.2024 passed in Criminal Appeal No.95 of 2022 by the learned 4th Additional District and Sessions Judge, Ahmedabad (Rural) with a direction to remand the appeal for fresh hearing. R/CR.RA/1510/2024 ORDER DATED: 08/04/2026 3. Learned Advocate Mr. Yatin Soni submitted that the Criminal Appeal No.95 of 2022 was earlier heard by another learned Judge and the matter was reserved for judgment, but during that course, the learned Judge who heard the matter got transferred and thereafter, the matter came before another Presiding Officer, but the appellant was not aware of the transfer of the learned Judge and then, the new Presiding Officer without even sending notice to the appellant and without hearing the advocate on record, had delivered the judgment and therefore, being aggrieved by the same, the appellant as applicant moved the Sessions Court by filing Criminal Miscellaneous Application No.1864 of 2024 for recalling the final judgment and order dated 03.06.2024 passed in Criminal Appeal No.95 of 2022. 3.1 Advocate Mr. Soni submitted that the appeal was for challenging the conviction under Sections 37 and 40 of the AIR (Prevention and Control of Pollution) Act, 1981, whereby the trial Court had ordered the accused to undergo simple imprisonment for one year and six months and imposed a fine of Rs. 1 lakh. 3.2 Advocate Mr. Soni submitted that the recall application came to be rejected on the ground that the order passed was on merits. Advocate Mr. Soni submitted that the learned Judge failed to adhere to the procedural aspect that once a learned Judge, after hearing on merits, does not declare the judgment and the matter comes before another learned Judge, then he is bound to give the hearing to the parties prior to declaring the judgment. Advocate Mr. Soni submitted that impugned R/CR.RA/1510/2024 ORDER DATED: 08/04/2026 judgment could not be considered on merits since the learned Judge has not heard from the side of the accused who are the most aggrieved person facing the conviction and sentence. 3.3 Advocate Mr. Soni has relied on the judgments of Ganesh Patel vs. Umakant Rajoria, 2022 SCC Online SC 2050, Vishnu Agarwal vs. State of U.P. and Another, AIR 2011 SC 1232, Asit Kumar Kar vs. State of West Bengal and Others, AIR 2009 SC (Supp) 282, Sushila Kumari vs. Col. Satish Chander, AIR 2017 SC 1751, and Shankar vs. The State of Maharashtra, in Criminal Appeal No.1106 of 2019 (@Special Leave Petition (CrL.) No.7230 of 2018) to submit that the learned appellate Judge was required to recall his own order and should have given the opportunity to the accused as an appellant to plead his case. 4. Countering the arguments, learned Advocate Mr. Dhruv Desai has submitted that the judgment has been declared on merits. The applicant had the recourse to challenge the same before the High Court under the revisional jurisdiction, if there had been any illegality or impropriety in declaring the judgment. Referring to the observation made in the order, Advocate Mr. Desai submitted that the learned Judge has observed that the matter has been decided on merits and submitted that there is no substance in the present two applications and are required to be rejected. 5. Section 362 of the Criminal Procedure Code (for short, ‘Cr.PC’) is with the provision restraining the Court that once a judgment is signed or final order has been passed disposing R/CR.RA/1510/2024 ORDER DATED: 08/04/2026 the case, then the Court shall not alter or review the same except to correct a clerical or an arithmetical error. 6. The application which was moved before the appellate Court was not making a prayer to correct a clerical or an arithmetical error. The specific case of the applicant as an accused was that the learned Judge who delivered the judgment had not heard them prior to passing the order. The fact becomes relevant and appears obvious from the very observation of the learned Judge while rejecting the recall application on 10.09.2024 that the appellants were not heard in the matter. 6.1 The learned Judge was conscious of the fact that the matter has been placed on judgment, however, forgot to appreciate that the matter was not heard by him. Once a matter has been reserved for judgment and if a Presiding Officer gets transferred with the new incumbent on the chair, the Presiding Officer who succeeds is required to give at least a notice to the advocate of the appellant informing him of rehearing the appeal, which is general procedural aspect to be adhered by every learned Judge. 7. Admitted position on record is that the appellant was not heard. The learned Judge has placed a reliance on the judgment of Ganesh Patel (supra) to observe as “application for recall of order is maintainable when it is an application seeking procedural review and not substantive review”. 8. In the case of Vishnu Agarwal (supra), the Hon’ble Supreme Court has considered the difference between ‘review R/CR.RA/1510/2024 ORDER DATED: 08/04/2026 application’ and ‘recall application’. The facts of the case as could be noticed was that the counsel or his clerk had no note of the cause list and therefore, the counsel could not appear. In absence of the counsel, the judgment was passed. The Hon’ble Supreme Court was of the opinion that the Court directing the recall of order was proper as considering that the application was for the recall of order and not for review. 9. In the case of Asit Kumar Kar (supra), the Hon’ble Supreme Court had made a distinction between recall and review in the following terms: “There is a distinction between a review petition and a recall petition. While in a review petition, the Court considers on merits whether 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. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association vs. Raghabendra Singh and Others, 2007 (11) SCC 374, (AIR 2007 SC 1386) cancelling certain licenses was passed without giving opportunity of hearing to the persons who had been granted licenses.” R/CR.RA/1510/2024 ORDER DATED: 08/04/2026 9.1 In the case of Asit Kumar Kar (supra), the Hon’ble Supreme Court had directed to follow the fundamental principle of natural justice observing that it is the basic of canon of jurisprudence and no adverse orders should be passed against the parties without hearing them. Hence, the impugned order was recalled. 10. Reference had been made about the case of A.R. Antuley vs. R.S. Nayak and Another, 1988 (2) SCC 602, decided by Seven Judge Constitutional Bench of the Hon’ble Supreme Court wherein in para 55, it was observed as under: “so also the violation of the principles of natural justice renders the act a nullity.” 11. In Sushila Kumari (supra), the Hon’ble Supreme Court had considered the case having a sufficient ground for recalling the order and remitting back the order which was passed by the Family Court. 12. In Shankar (supra), the Hon’ble Supreme Court has held in para 5 as under: “When the accused has preferred the appeal against the conviction, the appeal can be disposed of on merits only after hearing the appellant or his counsel. When there was no representation for the appellant, in our considered view, the High Court ought not to have disposed of the case on merits. It was held in 2005 (11) R/CR.RA/1510/2024 ORDER DATED: 08/04/2026 SCC 185 titled Mangat Singh vs. State of Punjab that where the advocate for the appellant is absent on the date of hearing, the Court shall either appoint an amicus curiae and then decide the appeal. Once the appeal against the conviction is admitted, it is the duty of the appellate court either to appoint an advocate as amicus curiae or to nominate a counsel through Legal Services Authority and hear the matter on merits and then dispose of the appeal. When the appellant was not represented by the advocate, in our view, the High Court ought not to have decided the matter on merits and the impugned order is liable to be set aside and the matter is remitted back to the High Court. The High Court shall restore the Criminal Appeal No.296 of 2014 and afford sufficient opportunity to the appellant and proceed with the matter in accordance with law. In case, if the appellant is still not represented, we request the High Court to nominate a counsel for the appellant through the Legal Services Authority and proceed with the matter.” 13. The conspectus of the view expressed in the referred judgment would conclude that the application to recall the order is not equivalent to an application to review the order. Thus, the application for recalling the judgment and order would not fall under the provision of Section 362 of the Cr.PC, where the learned Judge is restrained from reviewing the judgment of final order disposed of in a case. R/CR.RA/1510/2024 ORDER DATED: 08/04/2026 14. Here in this matter very clearly, the learned Presiding Officer has himself observed that while deciding the appeal, the advocate or the appellant himself was not heard. Thus, the judgment in the appeal becomes vulnerable since the mandated principle of natural justice has not been followed by the learned Judge. When it comes to the notice of the Presiding Officer that his order has been passed without hearing the parties concerned and that he had failed to appoint any other advocate to represent the appellant nor has appointed any advocate from legal service authority, then the matter when prayed for to be recalled ought to have been allowed. The learned Judge, thus, by passing the order dated 10.09.2024 rejecting the application to recall the judgment and order has failed to appreciate the basic canons of the criminal jurisprudence. 15. In the result, the order dated 10.09.2024 in Criminal Application No.1864 of 2024 is set aside and the order dated 03.06.2024 passed in Criminal Appeal No.95 of 2022 passed by the learned 4th Additional District and Sessions Judge, Ahmedabad (Rural) is hereby recalled and Criminal Appeal No.95 of 2022 is restored on the file of concerned learned Sessions Judge. 15.1 The matter is remanded back with a direction to the concerned Sessions Judge to relist the Criminal Appeal No.95 of 2022 and hear both the sides and the advocates represented on record and thereafter, to decide the matter on R/CR.RA/1510/2024 ORDER DATED: 08/04/2026 merits. 15.2 The present both revisions applications are disposed of as allowed. (GITA GOPI,J) PARMAR KRISH/19-20 Original copy of this order has been signed by the Hon'ble Judge. Digitally signed by: PARMAR KRISH(HC02348), ENGLISH STENO GRADE-II\, at High Court of Gujarat on 10/04/2026 17:36:51