High Court of Gujarat

DEVESH GIJUBHAI VYASversusSTATE OF GUJARAT

Disposal: 53-ALLOWED / GRANTED @ ADM.STAGE
Bench: HASMUKH D SUTHAR

Holding

The Court allowed the recall of the order dated 17‑04‑2026, setting it aside and restoring the revision application to the original file.

Summary

Devesh Gijubhai Vyas filed a recall application seeking to set aside the High Court’s order dated 17‑04‑2026 which dismissed his criminal revision application while he was absent due to illness. The applicant argued that a sick note had been filed and that related matters arising from the same offence were pending before the Court. The Court noted that ordinarily, under Section 362 of the CrPC and Rule 132 of the Gujarat High Court Rules, an order once passed is functus officio and not subject to recall. However, invoking the Supreme Court’s decisions in Taj Mohammad v. State of Uttar Pradesh and Vishnu Agarwal v. State of U.P., the Court exercised its discretion in the interest of justice, especially considering the applicant’s age and pending related matters. Consequently, the recall application was allowed, the earlier order was set aside, and the revision case was restored to its original file with directions for the applicant to appear in person.

Issues considered

What is the scope of Section 362 CrPC and Rule 132 Gujarat High Court Rules regarding the recall of a judicial order?
Whether a sick note filed by counsel can justify recalling an order passed in the applicant’s absence?

Legislation cited

Code of Criminal Procedure, 1973s. 362

Subjects

recall of ordercriminal revisionSection 362 CrPCprocedural fairnesssick notehigh court rulesfunctus officiointerest of justice

Judgment

    R/CR.MA/9842/2026                              ORDER DATED: 17/06/2026




 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
    R/CRIMINAL MISC.APPLICATION (RECALL) NO. 9842 of 2026
         In R/CRIMINAL REVISION APPLICATION/403/2012
==========================================================
                       DEVESH GIJUBHAI VYAS
                                Versus
                     STATE OF GUJARAT & ANR.
==========================================================
Appearance:
MR GC RAY(721) for the Applicant(s) No. 1
MR VARUN G RAI(7135) for the Applicant(s) No. 1
MR HARDIK MEHTA, APP for the Respondent(s) No. 1
==========================================================
  CORAM:HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR

                           Date : 17/06/2026
                               ORDER

[1.0] Present application is filed with a request to recall and set aside
the order dated 17.04.2026 passed by this Court in Criminal Revision
Application No.403 of 2012 and to restore the same to its original file
and number.

[2.0] Heard learned advocate for the applicant and learned APP
appearing for the respondent – State of Gujarat.

[3.0] Learned advocate for the applicant has submitted that though
he had filed sick note on 17.04.2026, the matter was decided on
merits in his absence. Further, he has submitted that matters arising
out of the same offence are pending before this Court, wherein
adjournment was granted. Hence, he has requested to allow the
present application and recall the order dated 17.04.2026.

[4.0]   Having heard learned advocate appearing for the respective
parties, it appears that present application is filed by the applicant
seeking recall of the order dated 17.04.2026. Perusing the order dated


                                Page 1 of 3
    R/CR.MA/9842/2026                             ORDER DATED: 17/06/2026




17.04.2026, it appears that learned advocate for the applicant as well
as the applicant did not remain present and sick note was filed by the
learned advocate appearing for the applicant. In paragraph 1 of the
order dated 17.04.2026, it is clearly stated that the applicant remained
absent but circumstances show that due to sickness note filed,
learned advocate for the applicant remained absent and same was not
mentioned or pointed out and due to this reason, this Court
considered the revision application in light of the decision of the
Hon’ble Supreme Court in the case of Taj Mohammad vs. State of
Uttar Pradesh in Criminal Appeal No.2421 of 2023 decided on
11.08.2023 and dismissed the revision application merely based on
concurrent findings recorded by the Courts below. As no opportunity
to point out or indicate the circumstances arising out of sick note and
as the same was not reflected in the order dated 17.04.2026, though
review is not permissible considering the bar under Section 362 of the
CrPC since, once order is passed, the Court becomes functus officio
and would have no power to review or recall or alter the order.

[4.1] However, considering the peculiar facts and since other matters
arising out of the same offence are pending before this Court and as
the learned advocate for the applicant could not remain present due
to his sickness and could not assist the Court, considering the age of
the applicant, in the larger interest of justice, this Court deems it
expedient to afford one more opportunity to the applicant though
only circumstance of filing sick note by learned advocate for the
applicant is not enough under Rule 132 of the Gujarat High Court
Rules but considering decision of Hon’ble Supreme Court in the case
of Vishnu Agarwal vs. State of U.P. reported in (2011)14 SCC 813,
without     further     entering into merits, present application           is
considered.


                                  Page 2 of 3
       R/CR.MA/9842/2026                                                        ORDER DATED: 17/06/2026




[5.0] In view of above, present application is allowed. Order dated
17.04.2026 passed by this Court in Criminal Revision Application
No.403/2012 is hereby recalled and matter is restored to its original
file with specific observation that as and when the revision application
is listed, the applicant shall place on record his correct address and
whereabouts and shall remain present before the Court and proceed
with the revision application without prolonging the matter since it
has been found from the docket sheet that applicant remained absent
after filing of the matter.

         Registry to place Criminal Revision Application No.403/2012
before appropriate Bench.


                                                                          (HASMUKH D. SUTHAR, J.)


Ajay
  Original copy of this order has been signed by the Hon'ble Judge.
  Digitally signed by: AJAY CHANDRAN MENON(HC00939), PRINCIPAL PRIVATE SECRETARY, at High Court of Gujarat on 17/06/2026 17:52:18




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