RAJIV SURESHBHAI SHETHversusSTATE OF GUJARAT

     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 4 th Additional District and Sessions
Judge, Ahmedabad (Rural) with a direction to remand the
appeal for fresh hearing.




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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


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      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



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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


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     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.”




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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)


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      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.

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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


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 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




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