Kadhiley and Others (in Jail) vs State of U.P.

N.K. Mehrotra, J.—Accused applicants Kadhiley, Ram Pal, Shiv Pal, Dinesh and Bhondu filed a criminal revision against the judgment and order dated 11.1.1993, passed by the v. Ith Additional Sessions Judge, Sitapur in Criminal Appeal No. 74 of 1992 dismissing the appeal and upholding the order dated 20.10.1992 passed by II Ird Additional Munsif Magistrate, Sitapur.

In the revision, the order of sentence was modified and the accused have been sentenced to two years simple imprisonment u/s 324/149, I.P.C. and Section 147/323, I.P.C. and to pay a total fine of Rs. 650 each and out of the realisation of the fine, Rs. 500 are to be paid to the injured. This revision was disposed of and the final order passed in the revision is as follows:

List revised. None appears.

Perused the impugned order. There is no justification for any interference. The revision, thus, is dismissed. Interim order, if any, is rejected. Sd. 1.2.2000.

Accused Kadhiley, Ram Pal, Shiv Pal and Dinesh have moved an Application No. 5626 of 2002 on 26.9.2002 along with an Application No. 6336 of 2002 on 29.10.2002, for recall of the order dated 1.2.2000 and for condonation of delay. It is accompanied by an affidavit. The main ground is that the counsel for the revisionists did not appear before the Court and the revisionists came to know for the first time on 13.9.2002.

Application No. 5982 of 2002 has been moved by the revisionist Bhondu. It is also accompanied by an affidavit of his mother. The main grounds for recall of the order are given in paragraphs 4 and 5 of the affidavit, which are as follows:

That on 28.8.2002, when the deponent/revisionist has been arrested by the police of police station Mishrikh only then he came to know that his revision was listed for hearing on 1.2.2000 and because none appeared on behalf of the deponent/revisionist to argue the revision, the Hon''ble Court was pleased to dismiss the revision without hearing the revisionist.

That the deponent/ revisionist could not appear in the revision because he was under impression that his counsel might appear and argue his case and because this Hon''ble Court has dismissed the revision of the applicant in non-appearance of the revisionist''s counsel as such it would be just and proper, if this Hon''ble Court, hears the deponent/revisionist on merit and then pass the orders.

These aforesaid applications were listed for hearing. Nobody appeared to argue on Criminal Misc. Application Nos. 5626 and 6336 of 2002 and Shri Rakesh Kumar Tripathi, advocate submitted his argument on Application No. 5982 of 2002.

The aforesaid two applications for recall of order passed in revision have been moved under the impression that the revision was dismissed for non-appearance of the counsel but the fact is otherwise as is evident from the order dated 1.2.2000 passed in revision. This Court has expressed an opinion on merit of the revision by saying that there is no justification for any interference.

The revision was filed by Shri H. A. Siddiqui, advocate. He has not come forward to explain his absence on the date the revision was listed. It was a revision of the year 1993 and no Court shall permit such revisions to go unheard. It is not the case that Shri H. A. Siddiqui was unable to appear in the Court at the time of hearing on revision. It is not a case giving any explanation for the absence of Shri H. A. Siddiqui who was bound to appear to argue the revision on the ground of his client after taking the fees. Unless the applicants explain the reasons for absence of their counsel, there can be no sufficient ground to recall the order dated 1.2.2000. In neither of the applications, there is any ground, what to say sufficient ground to recall the order dated 1.2.2000. The contents of the affidavit, give an impression that counsel understand that no revision can be disposed of without hearing the counsel for the revisionists while it is not so under the law. The advocate had the knowledge because the revision was listed for hearing on the date fixed. The revisionists were represented by their counsel. The power to appear was not withdrawn. So sufficient opportunity was given to the revisionists to argue their revision through their counsel.

Besides the above, the next question to be decided in this case is, whether an application for recall of the order passed by this Court after exercising the power under the Code of Criminal Procedure can be entertained? On this point, the learned Counsel for the revisionist Bhondu has placed reliance on a judgment of a single Judge of this Court in Badloo v. State, 1999 (3) ACrR 2727 (LB): 1999 (2) JIC 348 (All) (LB). In that case, the revision was dismissed because Shri Arun Sinha senior counsel could not appear. Application for restoration of the revision was also dismissed and second application for restoration was entertained on the ground that Shri Arun Sinha, learned Counsel could not appear at the time of hearing on the first restoration application and the revision because of his illness and this fact of illness was not rebutted. So this Court found the ground sufficient and after relying on Habu Vs. State of Rajasthan, ; Raj Narain and Others Vs. The State, and Makkapati Nagaswara Sastri Vs. S.S. Satyanarayan, , held that it would be unfair to punish the revisionist for the illness of his counsel and the 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 and if it is not done, the ends of justice may be defeated. In Badloo v. State (supra), the revision was dismissed in default and first restoration application was also dismissed in default and the absence of the counsel was explained which facts are not available here in the instant case under judgment.

Further a perusal of the judgment of the Hon''ble Supreme Court in Makkapati Nageshwara Shastri v. S.S. Satya Narain (supra) goes to show that the High Court had observed that "This is a revision case where the Respondent is not entitled to be heard as of right and having regard to the facts of the case, I do not think any review of the order, already passed, is necessary". In appeal against the aforesaid order, the Hon''ble Supreme Court took the view that view taken by the High Court is manifestly contrary to audi alteram partem rule of natural justice which was applicable to the proceeding before the High Court. A perusal of this judgment goes to show that the Hon''ble Supreme Court has not decided the legal question whether an application for recall of the order passed in revision can be entertained in spite of the bar u/s 362, Cr. P.C.

Section 362, Cr. P.C. is as follows:

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, alter or review the same except to correct a clerical or arithmetical error.

Thus, it appears that the Hon''ble single Judge of this Court in Badloo v. State (supra) has mainly relied on the two Full Bench judgments of Allahabad High Court and Rajasthan High Court in Raj Narain v. State (supra) and Habu v. State of Rajasthan (supra).

After perusal of the judgment of the learned single Judge in Badloo v. State, I find that the following cases were not cited at the Bar before this Court:

(i) Sankatha Singh Vs. State of U.P.,

(ii) Smt. Sooraj Devi Vs. Pyare Lal and Another,

(iii) Manohar Nathurao Samarth Vs. Marotrao and Others,

In the aforesaid cases, the principles enumerated by the Hon''ble Supreme Court can be summarised as follows:

(1) That the powers to deal with the case must flow from the statute.

(2) That the powers given u/s 362, Cr. P.C. (Section 369, Cr. P.C. old) given to the Court for reviewing or altering is limited only for correcting an arithmetical or clerical error and specifically prohibits Courts from touching the judgment by taking away the powers of altering or reviewing the judgment or the final order and as such principle of functus officio has been accepted.

(3) That the prohibition contained in Section 362, Cr. P.C. (Section 369, Cr. P.C. old) is not only restricted to the trial court but also extends to appellate court or the revisional court.

(4) That the inherent powers of the Court cannot be invoked where there is an express prohibition and in other words Section 482, Cr. P.C. cannot be invoked.

In view of the aforesaid principles laid down by the Hon''ble Supreme Court aforesaid judgments after the Full Bench judgment of Allahabad High Court in Raj Narain and Ors. v. State (supra), I am of the opinion that the judgment of this Court in Badloo v. State, cannot be said to be conclusive on the point.

In view of the above, I find that firstly the applications for recall of the order dated 1.2.2000 disposing of the criminal revision cannot be entertained in view of Section 362, Cr. P.C. and further the instant applications moved after two and a half year are devoid of any merit because there is no ground for recall of the impugned order by which the criminal revision has been disposed of, finally.

In result, the aforesaid criminal misc. applications are rejected.