Review under Indian Criminal Law: Section 403 BNSS & Section 362 CrPC

Advocate Tarun Gaur | Criminal Lawyer, Delhi High Court & District Courts

Review, in everyday language, means asking the same court to look at its own judgment again. In civil cases that power is written into the Code of Civil Procedure (Order XLVII CPC). In criminal cases, the starting rule is the exact opposite.

Once a criminal court has signed its judgment or final order, it is functus officio. It is finished with that case. It cannot reopen the merits because a party has thought of a better argument, or because a compromise later broke down, or because the court itself has second thoughts.

So “review” in criminal practice is not a parallel remedy to appeal or revision. It is confined to narrow clerical corrections, or — in the Supreme Court alone — a constitutional review of that Court’s own decree under Article 137. Mixing these three distinct gates is how petitions are dismissed at the threshold.

At The Chambers of Tarun Gaur, Advocates, the first question examined on any “review” brief is whether the order is legally open to recall at all. Advocate Tarun Gaur appears independently before the Delhi High Court and trial courts across Delhi and Dwarka, following years of intensive courtroom training under Senior Advocate Mohit Mathur, former President of the Delhi High Court Bar Association.

Section 403 BNSS / Section 362 CrPC provides, in substance:

"Save as otherwise provided by this Sanhita/Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."

From this strict statutory mandate, two crucial legal principles follow:

• Correction of Form vs. Change of Decision: The only correction the same court may make on the face of the section is a slip — a mistyped date, a wrong section number inadvertently copied into the operative line, or a fine added up incorrectly. Changing the result is not a clerical error. Recalling a reasoned quashing order and restoring an FIR is not a clerical error. Transferring investigation to another agency after a finished final order is not a clerical error.
• Express Statutory Conferment Required: The words “save as otherwise provided by this Code or by any other law” keep the door open only where another statute actually confers review. Neither CrPC nor BNSS gives trial courts or High Courts a general criminal review jurisdiction. Order XLVII of the CPC does not apply to criminal proceedings. Perjury-inquiry orders under Section 340 CrPC (and corresponding BNSS sections) are criminal in character; they cannot be reopened by a civil review application.

Understanding which gate to enter is vital to avoid fatal threshold dismissals. Below is how Indian criminal procedure distinguishes the three remedies:

A party who lost an FIR quashing petition cannot “review” it in the same High Court because a compromise later broke down. The Supreme Court has affirmed that breach of a settlement is not a ground to recall a finished quashing order. Fresh remedies, if any, lie elsewhere.

Similarly, a Magistrate who has issued process in a summons case cannot “review” that summons and drop the accused. That was settled under the CrPC in Adalat Prasad and Subramanium Sethuraman. The BNSS now allows a discharge-effect release at the Section 274 threshold if the accusation is groundless (see our guide on Discharge under CrPC and BNSS). That is a new statutory power; it is not a review of a signed judgment.

While substantive review on merits is strictly forbidden, three narrow exceptions exist in practice:

1. Clerical or Arithmetical Correction

Explicitly permitted by Section 403 BNSS / Section 362 CrPC. The error must be of form, clerical transcription, or mathematical computation — never of judicial decision or merits.

2. Power Conferred by Special Statute

If a special enactment expressly enables the court to revisit an order, that statute governs. The general criminal procedural code does not invent that power.

3. Procedural Recall of a Nullity (Not a Merits Review)

The Supreme Court draws a sharp distinction between a substantive review (strictly barred) and a tightly limited procedural recall. The bar is “almost absolute.” Inherent power under Section 528 BNSS / Section 482 CrPC may be exercised only where the earlier order was a nullity, not merely because it was wrong in law or on facts.

The recognised nullity scenarios — established in Davinder Pal Singh Bhullar, Vikram Bakshi, and allied rulings — include:

• Lack of Inherent Jurisdiction: The court inherently lacked jurisdiction to pass the order in the first place.
• Fraud or Collusion: The order was obtained by playing fraud or collusion upon the court.
• Violation of Natural Justice / Unrepresented Party: A necessary party was never served, or a party had died and the estate was unrepresented, and that vital fact was not before the court.
• Mistake of the Court: An act or omission of the court itself (not a ground the party chose not to argue) caused grave prejudice amounting to a violation of natural justice (the maxim actus curiae neminem gravabit).

Crucially, even these exceptions apply only to a ground that did not exist or was not available at the original hearing. A point that was available but was not pressed cannot be resurrected. Section 528 BNSS / Section 482 CrPC cannot be used as a cloak to achieve what Section 403 BNSS / Section 362 CrPC expressly forbids, as held in Simrikhia and reaffirmed in 2025.

The Supreme Court of India stands on a different constitutional footing. Under Article 137 of the Constitution, the Supreme Court has the power to review any judgment pronounced or order made by it, subject to the provisions of any law and rules made under Article 145 (Order XLVII of the Supreme Court Rules).

This is not Section 403 BNSS; it is an inherent constitutional review power. Even there, review is strictly circumscribed:

• Error Apparent on the Face of the Record: The error must be self-evident without requiring a long, elaborate chain of reasoning. Re-argument of the case is not permitted.
• Curative Petitions: If a review petition is dismissed, a curative petition may be filed in the rarest of rare cases under the landmark ruling in Rupa Ashok Hurra v. Ashok Hurra (2002). Curative jurisdiction requires proof of genuine bias, violation of natural justice, or gross abuse of process. It is exclusive to the Supreme Court; no High Court or District Court possesses curative jurisdiction.

Because civil and criminal rules are frequently conflated, parties often file applications doomed to immediate dismissal:

• Get the First Petition Right: Because there is no second innings on merits in the High Court, your original quashing petition, bail petition, or writ must be comprehensive and legally fortified from day one.
• Act Promptly on Genuine Typographical Slips: If the judgment contains a real clerical error in the sentence, sections, or operative line, file an immediate application under Section 403 BNSS / Section 362 CrPC.
• After Conviction, Move to Appeal: After conviction by a trial court, the only legal path is appeal and suspension of sentence (Section 430 BNSS / Section 389 CrPC), never review before the trial judge.
• After High Court Dismissal, Move to the Supreme Court: Once the High Court signs a final order, the proper remedy is an SLP (Criminal) under Article 136 of the Constitution, not a review application before the same Bench.
• Particularise Fraud Allegations: Fraud on the court must be specifically documented with unimpeachable evidence. It is a grave legal allegation, not a casual substitute for having lost an argument.

Most files that arrive at our chambers labelled “review” are actually appeals, revisions, or Section 528 petitions that have been misnamed. Advocate Tarun Gaur analyzes the procedural posture first to determine what the law actually permits:

• ✔ Clerical & Arithmetical Corrections: Drafting targeted applications under Section 403 BNSS / Section 362 CrPC for immediate rectification of record errors.
• ✔ Procedural Recall Petitions: Establishing jurisdictional defects, lack of notice, or natural justice violations under Bhullar and Vikram Bakshi parameters.
• ✔ Criminal Appeals & Suspension of Sentence: Securing release and suspension under Section 430 BNSS / Section 389 CrPC before Sessions and Delhi High Court.
• ✔ Criminal Revisions: Challenging illegal intermediate orders before the Delhi High Court.
• ✔ Supreme Court Review & Curative Petitions: Preparing specialized filings under Article 137 and Rupa Ashok Hurra.
• ✔ Connected Remedies: Coordinating with Parole & Furlough, Criminal Writs, and Legal Blog & Commentary.