Mahmood Ahmad alias Jhhabbu Khan and Others vs State

N.K. Mehrotra, J.—This is an application u/s 482 of the Code of Criminal Procedure for restoration of the Criminal Appeal No. 44 of 1984 Maqbool alias Jhulan and Ors. v. State, to its original number.

This appeal was decided on 11.7.2003 on merit. It is the second time when this appeal was disposed of on merit. Again an application for restoration has been moved. It is alleged in this application that Appellant No. 1 Maqbool alias Jhulan died on 18.1.1992 after filing of the appeal. The main ground for recalling the order dated 11.7.2003 is that the learned Counsel for the Appellants Shri Z. Jilani, advocate was busy in Court No. 17 before the Full Bench dealing with the ''Babri Masjid and Ram Janam Bhumi'' matter and the other counsel engaged by the Appellant was elevated to the Bench. It is stated that the appeal in question could be dismissed for non-prosecution. The appeal could not be attended by Shri Izhar Hussain Siddiqui, the Brief Holder of Shri Z. Jilani, advocate because he was out of station on that date. In these circumstances, nobody appeared from the side of the Appellant. The facts of this case are very material before passing any order on this application for restoration. These facts as noted in the judgment dated 11.7.2003 are as follows:

This appeal was disposed of on merit on 19.3.1999 in the absence of the accused Appellants and the impugned judgment and order was modified from the punishment of imprisonment to the punishment of fine. The Appellants moved a Misc. Application No. 1454 of 1999 for recall of the order dated 19.3.1999. This application was moved on 16.6.1999. The application was allowed by this Court vide order dated 27.8.2002. Since, then the appeal was pending. It was listed for hearing. After the restoration of the appeal, it was listed on 10.9.2002, 24.9.2002, 22.10.2002, 18.11.2002, 10.2.2003, 14.5.2003 and 1.7.2003. On these dates, it was adjourned two times at the request of the learned Counsel for the Appellants. Lastly, it was listed on 1.7.2003. Then again Appellants became absent. Neither the counsel nor the Appellants were present to make any submission in support of the merit of the appeal.

Further this appeal was decided after referring the following facts:

Since the appeal is of the year 1984 and there was a sufficient notice to the Appellants counsel, it was considered proper in the interest of justice to dispose of the appeal on merit after following the decision of the Hon''ble Supreme Court in Bani Singh and ohters Vs. State of U.P., , wherein it was held by the Hon''ble Supreme Court that:

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 and 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.

In this case, it was not found fit to grant indulgence after seeing the delaying tactics of the Appellants especially when once the appeal was decided and this Court took a lenient view to give another opportunity of hearing by recalling the judgment and order dated 19.3.1999.

The learned Counsel for the Appellants has placed three arguments for recall of the order firstly ; the observation of the Hon''ble Supreme Court in Para 15 in Bani Singh and ohters Vs. State of U.P., secondly ; earlier also the appeal was disposal of on merit but it was restored by this Court, and thirdly ; this Court can exercise the power u/s 482 of the Code of Criminal Procedure for recalling the judgment dated 11.7.2003.

Para 15 of the judgment of the Supreme Court in Bani Singh and Ors. v. State of U.P. (supra) is as follows:

Secondly, the law expects the appellate court to give a hearing to the Appellant or his counsel, if he is present, and to the public prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily, the appellate court shall cause notice of the time and place at which the appeal will be heard to be given to the Appellant or his pleader. Section 386 then provides that the appellate court shall, after perusing the record, hear the Appellant or his pleader, if he appears. It will be noticed that Section 385 provides for notice of the time and place of hearing of the appeal to be given to either the Appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the Appellant. So also Section 386 provides for a hearing to be given to the Appellant or his lawyer, if he is present, and both need not be heard. 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 and 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. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused-Appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are therefore, of the opinion and we say so with respect, that the Division Bench which decided Ram Naresh Yadav''s case AIR 1987 SC 1500, did not apply the provisions of Sections 385 and 386 of the Code correctly when it indicated that the appellate court was under an obligation to adjourn the case to another date if the Appellant or his lawyer remained absent.

I do not find any thing in the aforesaid extract of the judgment of the Hon''ble Supreme Court on the basis of which the application for recall can be allowed after passing the judgment on merit. Earlier order on merit was passed on 19.3.1999 and this order was recalled by this Court on 27.8.2002 without expressing any opinion about the order dated 27.8.2002 by which the appeal decided on merits was again restored ; I am of the view that this order cannot be a precedent binding for allowing this application. Section 362 of the Code of Criminal Procedure 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, shall alter or review the same except to correct a clerical or arithmetical error.

Therefore, Section 362 of the Code of Criminal Procedure places an embargo on the power of the Court from reviewing or altering any judgment passed by the Court after disposal of the case. It is only clerical and arithmetical error which can be corrected. In Sankatha Singh Vs. State of U.P., ; Smt. Sooraj Devi Vs. Pyare Lal and Another, and Manohar Nathurao Samarth Vs. Marotrao and Others, , certain principles were laid down by the Apex Court of this country which can be summarized 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 above, this application for recall of the order is just misuse of judicial process of the Court specifically when this Court had granted indulgence by restoring the appeal for re-hearing on 27.8.2002 even after the disposal of appeal on merit earlier on 19.3.1999.

In result, this application is dismissed.