The Article “Finality, Recall and Bail under the BNSS, 2023: The Limits of Reconsideration” is authored by SRINIVASAN GOPAL, ASSISTANT DIRECTOR(RETD) NATIONAL ACADEMY OF CUSTOMS INDIRECT TAXES AND NARCOTICS PALASAMUDRAM.

Introduction

The criminal justice administration is aptly designed to prevent perpetual litigation and give quietus to the proceedings. The powers of the Courts are circumscribed by the Bharatiya Nagarik Suraksha Sanhita, 2023 (for short, ‘the BNSS, 2023’).  As a general principle, once a Court has signed a final order disposing of a matter, its power to substantively alter or review that order ends, subject to exceptions under the BNSS, 2023. In other words, it becomes functus officio—its authority over that specific proceeding terminates.

However, recent orders passed by the Hon’ble High Court of Kerala in Abijith Unnirajan and another v. State of Kerala (B.A. Nos. 5334 & 5336 of 2026 dated 24 September and 26 September 2026) offer a compelling case study on how different provisions of the BNSS, 2023 intersect when a substantive factual discrepancy is identified in relation to a finalized order.

The grant of bail to the bail applicants is not the issue examined in this article. Regular bail was granted on the basis that the quantity involved was intermediate, thereby safeguarding the personal liberty of the bail applicants.

What is being examined in this article is the procedural methodology adopted in the subsequent bail order dated 26 September 2026 vis-à-vis the requirements set out in the BNSS, 2023. In short, does the BNSS, 2023 place any restriction on the exercise of the power to grant regular bail where the initial bail application was decided on a factual basis that was subsequently reconsidered.  We examine this issue in this article.

Classification of MDMA under the NDPS Quantity Notification

The case involved two co-accused individuals apprehended for the possession of 5.005 grams of MDMA (aggregate quantity) under the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short, the ‘NDPS Act’). The full form of MDMA is 3,4-methylenedioxymethamphetamine.

In terms of Notification S.O. No. 1055(E), dated 19 October 2001, MDMA is listed at Serial No. 134 of the Notification. In terms of the Notification, a quantity less than 0.5 grams is a small quantity while any quantity greater than 10 grams is a commercial quantity.
These notified quantities must be read in conjunction with Sections 2(viia) and 2(xxiiia) of the NDPS Act, which define ‘commercial quantity’ and ‘small quantity’ respectively.

The Factual Matrix and the Procedural Requirement

Abijith Unnirajan and Rojer V Devassy, Accused No.1 and Accused No. 2, were booked in Crime No. 40/2026 of Excise Enforcement and Anti-Narcotic Special Squad, Thrissur, Kerala.

Accused No. 1 preferred Bail Appl. No. 5334 of 2026 and Accused No.2 preferred Bail Appl. No. 5336 of 2026 under Section 483 of the BNSS, 2023, seeking regular bail for the offences punishable under Sections 22(b), 25, 29 and 60(3) of the NDPS Act.

The Hon’ble High Court initially dismissed their regular bail applications on 24 September 2026 vide Neutral Citation 2026:KER:73451 and Case Number Record KLHC010693492026. The dismissal was primarily based on the classification of the seized quantity as falling within the ‘commercial’ quantity, thereby attracting the rigorous bail limitations outlined in Section 37 of the NDPS Act.

After the rejection of the bail applications, the Ld. Defence Counsel sought reconsideration of the matters under the same bail application numbers, invoking Section 483 of the BNSS, 2023.

The matters came to be disposed of on 26 September 2026 by the Hon’ble High Court vide neutral citation 2026:KER:74135 and CNR:  KLHC010693492026.

In the subsequent order, it was observed as under:

“9. The contraband seized from the possession of the accused No.1 is 2.514 grams of MDMA and the contraband seized from the possession of the accused No.2 is 2.491 grams of MDMA. The total quantity comes to 5.005 grams of MDMA, which is an intermediate quantity. …”

It may be seen that the Case Number Record  (CNR) quoted in both the bail orders is the same, i.e., KLHC010693492026.

Be that as it may, the seized quantities of 2.514 grams of MDMA from Accused No. 1 and 2.491 grams from Accused No. 2, making a total of 5.005 grams, constituted an ‘intermediate quantity’ and, accordingly, the stringent conditions under Section 37 of the NDPS Act applicable to offences involving commercial quantity were not attracted in this case.

Upon the discrepancy being brought to notice, the matter was returned to the board on 26 September 2026. The Hon’ble High Court recalled its Order dated 24 September 2026 and, upon re-hearing both parties to the dispute, granted regular bail to the bail applicants.

It may be noted that this corrective procedure was executed under the original case numbers and was structured around the bail powers contained in Section 483 of the BNSS, 2023.

Before examining the issue in detail, it is useful to note the following:
The first paragraph in both bail orders (dated 24 September and 26 September 2026) expressly states as under:

“These applications are filed under Section 483 of the BNSS, 2023, seeking regular bail.”

The Scope of Special Bail Powers under BNSS, 2023

The provisions relating to the power to grant bail, the inherent powers of the High Court, and the bar against alteration or review are set out in the table below:          

                                                                        Table

The interplay between these Sections of the BNSS, 2023 and the powers of the Court may be seen for a proper understanding before we move to the actual issue.

The Statutory Intersection: Sections 403, 483, and 528 of the BNSS, 2023

This procedural scenario offers an important subject for academic study on how three distinct provisions of the BNSS intersect when a substantive factual discrepancy is addressed.

              1.          The General Rule of Finality – Section 403 BNSS

Section 403 of the BNSS, 2023 is central to this article. It lays down that the power to alter or review a judgment or final order is restricted, except for the correction of a clerical or arithmetical error. Section 403 of the BNSS, 2023 corresponds to Section 362 of the CrPC.

Section 403 of the BNSS, 2023 reads as under:

“403. Court not to alter judgment.

Save as otherwise provided by this Sanhita 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.”

The BNSS, 2023 mandates that once a court has signed its judgment or final order disposing of a case, it shall not alter or review the same except to correct a clerical or arithmetical error.
The aforesaid position was equally true under Section 362 of CrPC, and Section 362 of CrPC was worded in an identical manner, except to the extent that the word “Sanhita” is replaced by the word “Code”. Section 362 of the CrPC reads as under:

 “Section 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 order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”

Was the Re-categorization Merely Clerical?

A clerical or arithmetical error ordinarily concerns an accidental or mechanical mistake which can be corrected without reconsidering the substance of the judicial determination. The issue in the present case appears more consequential. Because the re-categorization of the seized quantity from commercial to intermediate is a substantive modification affecting judicial discretion—and not a minor clerical correction—the subsequent action in the original bail applications, which had already been disposed of, raises a clear question under Section 403 of the BNSS, 2023. It is Section 483 of the BNSS, 2023, corresponding to Section 439 of the CrPC, that empowers the High Court or a Court of Session to release an accused person on regular bail. It governs the adjudication of bail petitions/applications.

It is to be noted that the distinction between 5.005 grams (aggregate quantity seized from the bail applicants) and commercial quantity was not merely numerical. It affected the statutory framework governing bail insofar as the applicable bail regime differed because the quantity fell within the intermediate-quantity range, vide Notification S.O. 1055(E), dated 19 October 2001, and hence the rigours of Section 37 of the NDPS Act were not attracted in this case.

The question, therefore, is not simply whether the Court corrected a number.

Rather, the question is whether the Court had made a substantive judicial determination on a factual basis that was subsequently reconsidered, and, if so, whether it possessed jurisdiction to reopen that determination in the same proceedings once the discrepancy came to its notice.

This distinction is central to this article.

Supreme Court Authorities on Finality, Recall, and Inherent Powers

The question assumes greater importance in view of the Hon’ble Supreme Court’s judgment in State of Rajasthan v. Parmeshwar Ramlal Joshi, 2025 INSC 1205.

The Hon’ble Supreme Court considered the relationship between Section 403 and Section 528 of the BNSS, 2023 corresponding to Sections 362 and 482 of the CrPC respectively.  It rejected an attempt to use inherent powers as a means of substantively recalling an earlier order where the earlier order did not suffer from a mere clerical error. The Hon’ble Supreme Court held that an order which had been judicially passed could not simply be recalled and reconsidered by invoking inherent jurisdiction under Section 528 of BNSS, 2023. The relevant observations of the Supreme Court are extracted below:

“26. Law is well settled by a catena of decisions of this Court that a criminal Court has no power to recall or review its own judgment. The only permissible action is to correct or rectify clerical errors by virtue of Section 403 BNSS [Section 362 CrPC]. In this regard, we may gainfully refer to the decision of this Court in Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee and Another – (1990) 2 SCC 437, the relevant portions whereof are quoted below for ease of reference

“6. In Superintendent & Remembrancer of Legal Affairs v. Mohan Singh, (1975) 3 SCC 706, this Court held that Section 561A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must therefore exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. In that case the facts and circumstances obtaining at the time of the subsequent application were clearly different from
what they were at the time of the earlier application. The question as to the scope and ambit of the inherent power of the High Court vis-a-vis an earlier order made by it was, therefore, not concluded by this decision.

7. The inherent jurisdiction of the High Court cannot be invoked to override bar of review u/s 362. It is clearly stated in Sooraj Devi v. Pyare Lal, (1981) 1 SCC 50 that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials. The High Court has grievously erred in doing so. Even on merits, we do not find any compelling reasons to quash the proceedings at that stage.”

It would also be useful at this juncture to refer to Hon’ble Supreme Court’s Order dated 7 January 2026 in the case of Rambali Sahni v. State of Bihar, which arose in the context of a case booked under the NDPS Act. The relevant paragraphs are extracted herewith for a proper appreciation of the issue before the Hon’ble Supreme Court.”

“6. At this juncture, we deem it apposite to note Section 362 of the Criminal Procedure Code, 1973 which clearly mandates that once the judgment or order is signed, no alternation [sic] or review of the same is permissible except to correct a clerical or arithmetical error. In the instant case, there being no clerical or arithmetical error which had crept in, yet the High Court recalled the earlier order granted bail by impugned order and it was not justified in undertaking to recall the order dated 27.08.2025 by the impugned order 30.08.2025. In other words, the order granting bail has been reversed or recalled by the impugned order which is impermissible in law and as same would not be sustainable even for a moment. Hence, same is set aside.”

These decisions reinforce the principle that Section 528 BNSS, 2023 cannot be treated as an unrestricted power of review and cannot ordinarily be invoked to circumvent the statutory bar contained in Section 403 BNSS, 2023

Point of Consideration

In view of the aforesaid discussion, the orders passed by the Hon’ble High Court of Kerala raise a significant procedural question under the BNSS, 2023. The question is whether, where a signed bail order has proceeded on a factual basis that was subsequently reconsidered, namely, the classification of the seized quantity of MDMA as commercial quantity rather than intermediate quantity, thereby affecting the applicable statutory bail regime, the subsequent bail order dated 26 September 2026 is circumscribed by Section 403 of the BNSS, 2023. The question assumes particular significance where the factual discrepancy is identified immediately, within a period of two days, and the Hon’ble High Court thereafter decides the matter afresh on the same set of bail application numbers.

The expression “put into motion” assumes significance in the present context. A judicial order may have been signed, yet the question may arise whether, before the order has been acted upon or given effect to, the Court retains any procedural power to address an apparent discrepancy on the face of the record.  This distinction assumes particular significance in the present case because the subsequent order was passed within two days and on the same bail application numbers. The interaction between Sections 403, 483 and 528 of the BNSS, 2023, therefore, warrants closer judicial examination.

It may be noted at this juncture that the quantity seized—whether considered individually or cumulatively—does not attract the commercial-quantity conditions contemplated by Section 37 of the NDPS Act. The statutory rigours applicable to commercial quantity are, therefore, not attracted, as the quantity seized falls within the intermediate-quantity range. The question of grant of bail consequently falls to be considered under Section 483 of the BNSS, 2023 subject to the facts and circumstances of the case.

Possible Procedural Approaches Following Identification of a Factual Discrepancy

Two possible procedural approaches may be considered in this context:

              A. The Successive Bail Application Route:

 It is a well-settled principle that the rule of res judicata does not strictly govern bail proceedings. The dismissal of a prior bail application does not bar the consideration of a subsequent request, provided there is a demonstrable “change in circumstances” (see Kalyan Chandra Sarkar v. Rajesh Ranjan – 2004 7 SCC 528).

One possible procedural mechanism would be to move a fresh application under Section 483 of the BNSS, 2023, which would receive a new case number, and plead that the accurate calculation of the contraband constitutes the fresh factual circumstance required for the Court to exercise its bail jurisdiction afresh.

              B. The Extraordinary Inherent Powers Route:

If the total erasure or formal recall of the order from the judicial record is considered necessary, a further question arises as to whether, in an appropriate case, the inherent jurisdiction preserved under Section 528 of the BNSS, 2023 could have any procedural role in such recall, without permitting a substantive review prohibited by Section 403 of the BNSS, 2023.

Conclusion

The Kerala High Court’s order, therefore, raises a significant procedural question under the BNSS, 2023: where a signed bail order has proceeded upon a material factual discrepancy affecting the statutory framework governing bail, does the subsequent action constitute a permissible procedural recall, or does it amount to a substantive review prohibited by Section 403? The question assumes particular significance where the factual discrepancy is identified immediately.  The interaction between Sections 403, 483 and 528 of the BNSS, 2023, therefore, warrants closer judicial examination.