Badloo vs State

Khem Karan, J.—The revisionist-Applicant Badloo was convicted u/s 326 of I.P.C. and sentenced to a period of two years'' R.I. by the Judicial Magistrate, Lucknow. His appeal (Crl. Appeal No. 104 of 1982) was also dismissed on 4.11.1982 by the learned Sessions Judge, Lucknow. He preferred a Criminal Revision No. 612 of 1982 against the judgment dated 4.11.1982, but it was also dismissed by this Court on 25.9.1997 without hearing the revisionist or his counsel. His counsel Sri Arun Sinha moved application (Crl. Misc. Case No. 2277 of 1998) for recalling the said order dated 25.9.1997 on the ground that he could not appear on 25.9.1997 due to his illness and illness slip was sent when this recall application came before the Court on 8.12.1998 for orders, his junior Sri Gautam appeared and told the Court that Sri Sinha was unable to appear due to his illness. This Court, however, rejected the recall application.

Sri Arun Sinha has now moved this second recall application (Crl. Misc. Case No. 2746 of 1998) u/s 482 of the Code of Criminal Procedure for setting aside dismissal order dated 25.9.1997. Allegations have been supported by affidavit of one Ram Gopal, the brother of the revisionist. The ground is that the counsel Sri Arun Sinha could not appear and make submissions in support of the revision, due to his illness. There is no counter-affidavit to controvert the factum of illness of Sri Arun Sinha.

What the learned Counsel for the State argues is that since the order of dismissal dated 26.9.1997 is on merits and since the first restoration application has also been rejected on 8.12.1998, so it is not open to this Court to review or reconsider its order dated 26.9.1997. According to him, Section 362 of the Code of Criminal Procedure prohibits the Court from reviewing the final orders passed in proceedings under the Code. He has cited the cases of Srikant Srivastaua v. State of U.P. Crimes V 1985 (1) 924 and Parasuram Patel and Anr. v. State of Orissa (1994) 4 SCC 665 : 1995 (1) JIC 560 (SC).

On the other hand, learned Counsel for the applicant Badloo has argued that his application is for recalling the order dated 25.9.1997, which was passed without hearing him or the revisionist and not for reviewing or reconsidering the said order on merits. His argument is that recall is wholly different to the review. Learned Counsel argues that Section 362 of the Code of Criminal Procedure does not prohibit recall of such orders, with a view to secure ends of justice. He submits that this Court has ample powers u/s 482 of the Code, to recall such ex parte orders. He places reliance on a Full Bench decision of Rajasthan High Court, rendered in Habu v. State of Rajasthan AIR 1987 Raj 83.

It is a fact that order dated 25.9.1997, by which the revision was dismissed by this Court, was passed in absence of the revisionist and his counsel. In other words, revision was dismissed without hearing the revisionist or his counsel. It is also not in dispute that first restoration application was also dismissed in absence of the senior counsel. On both the dates Sri Arun Sinha, learned Counsel for the revisionist-applicant was ill. The question is as to whether this Court has powers u/s 482 of Code of Criminal Procedure to recall the order dated 25.9.1997 so as to afford an opportunity of hearing to the revisionist or his counsel. Srikant Srivastava''s case (supra) cited by the learned Counsel for the State does not help him at all. In that case the Magistrate had consigned the record of the criminal case because none for the prosecution responded. The first restoration application was also rejected. The second restoration application was moved. The point was raised before the Court that second restoration application did not lie. This Court repelled the contention and took the view and said:

In the instant case, by order dated November 27, 1980 the Magistrate only dismissed the restoration application as nobody appeared on behalf of the prosecution. It cannot be called a judgment or final order disposing of the case. In the circumstances the principles of Section 362 of Code of Criminal Procedure, would not be applicable in the instant case. If an application for restoration is dismissed in default, in my opinion, it is always open to a party to move another application for restoration, as I do not find any such prohibition in the Criminal Procedure Code.

This Court did not rule in the said case that second application for restoration did not lie for recalling the order of the nature, passed by the learned Magistrate in that case. The view taken was that an order, not falling within the definition of judgment or final order disposing of the case, could be recalled, even if first application for recall had already been dismissed.

In Parsuram Patel''s, case (supra), cited by the learned Counsel for the State, the question involved was not as to whether an order passed in absence of the revisionist or Appellant, could be recalled under inherent powers of this Court. What the Hon''ble Apex Court said was that an appeal could be disposed of on merits, even in absence of the Appellant or his counsel. So I think this case does not help the learned Counsel for the State so as to say that the order dated 25.9.1997 passed in absence of the revisionist and his counsel, cannot be recalled u/s 482 of the Code.

The Full Bench of Rajasthan High Court took into consideration a number of cases of the Hon Tale Apex Court, this Court and other High Courts in examining the point whether an order or judgment dismissing a criminal revision or criminal appeal without hearing the revisionist/Appellant or his counsel, can be recalled u/s 482 of the Code. Their Lordships also relied on a Full Bench decision of this Court rendered in Raj Narain and Others Vs. The State, and of the Apex Court rendered in Makkapati Nagaswara Sastri Vs. S.S. Satyanarayan, , where the view taken was that the Court had inherent powers u/s 561A (corresponding to new Section 482) to recall such ex parte orders.

The Full Bench of Rajasthan High Court ruled that the power of recall is different to the power of altering or reviewing the judgment and the Court had powers u/s 482 of the Code to recall the judgment in a case the hearing was not given to the accused. In the opinion of their Lordships, the prohibition contained u/s 362 of the Code did not apply to a case where revision or appeal had been decided without hearing the revisionist/Appellant or his counsel. I feel inclined to take the same view and to hold that where the criminal revision has been dismissed without affording an opportunity of hearing to the revisionist or his counsel, the Court can with a view to secure the ends of justice, recall such orders under its inherent powers.

This revision was against dismissal of the appeal and against the conviction and sentence. The revisionist relied on his counsel, but the counsel could not appear due to his illness. It would be unfair to punish the revisionist for the illness of his counsel. Justice demands that the ex parte order dated 25.9.1997 should be recalled and the revisionist should be given an opportunity of hearing in revision. If it is not done, the ends of justice may be defeated.

In the result, the restoration application giving rise to Crl. Misc. Case No. 2746 of 1998 is allowed and the order dated 25.9.1997 dismissing the Revision No. 612 of 1982 without hearing the counsel for the revisionist, is recalled.

Let the revision be listed for hearing on 14.7.1999 along with the record of the trial court.