Annam Venkateswarlu vs State of A.P.

This petition is fifed u/s 482 of the Criminal Procedure Code for being mentioned to recall the order dated 4-11-1997 in Crl.RCNo.408 of 1996.

The facts in giving rise to the filing of this petition are, briefly, as follows :

The petitioner-accused was found guilty by the Judicial First Class Magistrate, Kothagudem for an offence u/s 408 of the Indian Penal Code and convicted and sentenced to undergo simple imprisonment for two years and to pay a fine of Rs.500/-; and was also found guilty for an offence u/s 465 of the Indian Penal Code and convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.500/-holding that the accused collected a sum of Rs.2,17,963/- from the customers of the State Bank of Hyderabad, Kothagudem Branch and credited only a sum of Rs. 1,44,466/ - and mis-appropriated a sum of Rs.73,297/-. On appeal, the learned Additional District & Sessions Judge, Khammam passed judgment in Crl. Appeal. No.10 of 1992 setting aside the conviction and sentence awarded against the petitioner'' for an offence u/s 465 of the I.P.C. However, the learned Sessions Judge confirmed the conviction and sentence awarded against the petitioner for an offence u/s 408 of the I.P.C. Against the said judgment in Crl.A.No.10 of 1992, the petitioner filed revision before this Court in Crl.R.C.No.408 of 1996.

The matter was listed for hearing on 28-10-1997 and adjourned to 29-10-1997. It appears that none appeared for the petitioner and was adjourned to 31-10-1997 under caption '' for dismissal'', and on that day also neither the petitioner nor his Counsel were present and again the matter was listed for hearing under the caption for dismissal'' on 4-11-1997. On that day also, neither the petitioner nor his Counsel were present and the Court after hearing the learned Public Prosecutor and on perusing the material on record, passed orders on merits dismissing the revision confirming the conviction and sentence awarded against the petitioner for the offence u/s 408 of the IPC.

Now, the petitioner filed this petition to recall the order dated 4-11-1997 contending that his name, G.S.Rao, is not prinied in the cause-list, but the name of his daughter, Ms. Vasanthi, has been printed as the Counsel for the petitioner on the respective date of hearings and normally senior Counsel name is printed in the cause-list and hence he is not aware of the listing of the case for hearing and, therefore, he could not present on the said date of hearings and requested to re-call the said order and post the matter for hearing.

The learned Counsel, Mr. G.S. Rao, relied on the following decisions :

Swarth Mahto v. Dharmdeo, AIR 1972 SCI 300

Kondalapudi Malla Reddy v. Pullamreddy Balarama Reddy, 1997 Crl.LJ 555

Giridharilal v. Pratap Ral Mehta, ILR 1989 Kar. 2491

Habu Vs. State of Rajasthan,

Gulam Ahmed v. Haji Maulana Mohammad Zahoor, 1997 Crl. LJ 3837

On the other hand, the teamed Public Prosecutor submitted that the facts leading to the above decisions are different to the facts of the case on hand. In this case, Mr. G.S. Rao and Vasanthi filed vakalath on behalf of the revision petitioner and the name of the one of the advocates is printed in the cause-list and it is practice of printing the name of one of the advocate appearing for the petitioners and inspite of printing the name of the learned Counsel for the petitioner-Ms. Vasanthi in the cause-list, neither the advocate nor the petitioner appeared on the dates of hearing to address arguments, and hence upon hearing the learned Public Prosecutor and on perusing the material on record, this Court passed the judgment on merits. The learned Public Prosecutor further submitted that in the absence of either the petitioner or the Counsel, the Court is not bound to adjourn the matter and the Court can dispose of the matter on merits after perusing the material on record. The learned Public Prosecutor further submitted that there is no provision in the Criminal Procedure Code to recall the orders passed on merits. On the other hand, there is a prohibition even to alter or review the judgment u/s 362 of the Criminal Procedure Code. The learned Public Prosecutor relied on the following decisions :

Bani Singh and ohters Vs. State of U.P.,

Sankatha Singh Vs. State of U.P.,

State of Orissa Vs. Ram Chander Agarwala and Others,

The office note discloses that Mr. G.S. Rao failed to furnish his computer code number and, therefore, the name of another Counsel appearing for the petitioner is printed in the cause-list, that too who is no other than the daughter of the Senior Counsel-Mr. G.S. Rao, consistently for all the hearings. Even then, neither the petitioner nor his Counsel were present on the said dates of hearing and there is not even representation and hence in the said circumstances it cannot be said that no opportunity was given to the petitioner. It is the duly of the petitioner and his Counsel to appear on the date of hearing and the Court need not adjourn the matter in the absence of the advocate or the petitioner and the Criminal Procedure Code envisages the disposal of the appeal on perusing the material on record. The Apex Court held the same in Bant Singh''s case (supra) and observed as follows :

".....It is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. The plain language of Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record...."

It is also true that there is no provision in the Criminal Procedure Code to re-call the orders passed on merits and on the other hand, there is prohibition to alter or review the judgment. The Apex Court in Ram Chander ''s case (supra) held as follows :

"Sections 369 and 424 do not restrict the prohibition u/s 369 to the trial Court alone. The purpose of Section 424 is to prescribe mode of delivering of judgment, the language and the contents of the judgment, while Section 369 is general in its application and prohibits all Courts from altering or reviewing its judgment when once it has signed it....

Nor does Section 430 deal with the prohibition imposed u/s 369 prohibiting the Court from altering or reviewing its judgment when once it has signed it.

Once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code which would enable the High Court to review the same or to exercise revisional jurisdiction The provisions of Section 561A cannot be invoked for exercise of a power which is specifically prohibited by the Cr.P.C...."

Section 369 of Cr.P.C.corresponds" to Section 362 of the new code. Therefore, it is clear from the above decisions of the Apex Court that once judgment has been pronounced by the High Court either in exercise of appellate or revisional jurisdiction, no review or revision can be entertained against the said judgment

The facts leading to the decision of Swarth Mahto''s case (supra), relied on by the learned Counsel for the petitioner, were that in that case the appeal was filed against the petitioners by the respondents therein. Though the name of the Counsel was not printed in the cause-list, the Court passed the order setting aside the acquittal and convicted the petitioners and in such circumstances, the Supreme Court remanded the matter to High Court to hear the Counsel and dispose of the matter afresh. In that case, the name of the learned Counsel was not printed in the cause-list. But, in this case, name of the one of the advocate is printed in the cause-list. Thus, the facts leading to the said decision are different to the facts of the case on hand and, therefore, the said decision is not helpful to the petitioner. In Giridharilal''s case (supra), the Court passed the orders without ordering the notice to the respondent, and when the respondent filed an application to re-call the orders as no notice was ordered to him, in such circumstances, the Court recalled the said orders. Thus, the facts in those decisions are different to the facts of the case on hand.

Distinction was drawn between recalling the orders and altering or reviewing the judgment by the Karnataka High Court in Giridharilal''s case (supra), the Madhya Pradesh High Court in Gulam Ahmed ''s case (supra) and the Full Bench of Rajasthan High Court in Habu''s case (supra).

Even if it is assumed for the sake of arguments that the petitioner is entitled to re-call the order, the same comes into picture if no opportunity was given to the petitioner''s Counsel. As already held that the name of the one of the advocates was printed in the cause-list on all the occasions, even then neither the petitioner nor his Counsel were present and no representation was made and in such circumstances, after perusing the entire material on record and after satisfying that the judgment is in confirmity with evidence on record, the revision was dismissed on merits. The code envisages the disposal of the appeals on merits after perusal and scrutiny of the record even in the absence of the appellant or his Counsel. Therefore in any view of the matter, I do not find any justifiable grounds to re-call the orders passed in Crl.RC.No.408 of 1996 on 4-11-1997.

Hence, I do not find any merit in the petition and the petition fails and it is accordingly dismissed. No costs.