Amin Ahmad Khan vs State of U.P.& Anr.

Khem Karan, J.—Heard Sri Umesh Chandra Singh and Sri Abhay Singh, the learned counsels for the applicant Amin Ahmad Khan and Sri Mohsin Iqbal, the learned counsel for the complainant and Sri Subodh Kumar Gupta, the learned counsel for the State, on the application (criminal Misc. Case No. 912 of 1999) under Section 482 Cr. P.C., for recalling the judgment and order dated 1471999, delivered in criminal revision No. 26 of 1985, Salauddin Khan& Ors. v. State of U. P.

The Criminal Revision No. 26 of 1985, preferred by Salauddin Khan and two others against their conviction under Sections 323 and 506 (2) of I.P.C. and against the dismissal of Criminal Appeal No. 7 of 1984 was dismissed on 1471999 on merits, but without hearing the revisionists or their counsel. The learned counsel for the applicant (who was one of the revisionist) has submitted that the revisionists were represented by Sri Raghwendra Kumar Singh and since the name of Sri Singh was not correctly printed in the cause list dated 1471999, so neither he nor his seniors could appear on that date.

It has also been argued that the revisionist No. 1 Salauddin died in the year 1988, but this fact could not be brought on record of the revisionist, and so the judgment dated 1471999 has also passed in respect of him. It is further submitted that in case the order dated 1471999 is not recalled and the revisionists are not given an opportunity of hearing in the revision, the ends of justice may be defeated, and so with a view to secure the ends of justice, the order dated 1471999 should be recalled. Reliance has been placed on the case of Badloo v. State, 1999, Lucknow Criminal Reports, page 275 ; 1999(2) JIC 348

The learned counsel for the State as well as the complainant have, however, submitted that once a revision has been decided on merits, petition under Section 482 of Cr. P.C. for recalling that order will not be maintainable.

After having considered the respective submissions and having none through the order dated 1471999.1 am of the view that the point as regards the maintainability of the petition under Section 482 of Cr. P.C. is covered by Badloo v. Stale (supra). This much is undisputed that the revision against conviction and dismissal of the appeal against conviction was decided without hearing the revisionists or their counsel. I am of the view that the ends of justice require that expane dismissal of revision should be recalled. The revision should be decided on merits, after affording an opportunity of hearing to both the parties. In case, it is not done, there may be a failure of justice, so the application under Section 482 of Cr. P.C. is allowed and the order dated 1471999 passed in criminal revision No. 26 of 1985 is recalled, the revision is restored to its original number and it be listed for hearing before the appropriate Bench in the week commencing the February, 2000. Let a copy of this order be sent to the counsel concerned and lower Court record, if not sent back, so retained here and putting before the Court on the dale of hearing.