Prahlad Dhingra vs State of MP and Another

Brij Kishore Dube, J.—This petition u/s 482 of the Code of Criminal Procedure, 1973 is preferred for by the petitioner herein/complainant for recalling the order dated 14/03/2013 passed in Mis. Cr. Case No. 9922 of 2012 by this Court whereby allowed the petition filed by the respondent No. 2 herein/accused and set aside the order of the Trial Court framing charge u/s 307 in alternate 307 read with 34 of IPC against him. Short facts of the case are that on the basis of the complaint lodged by the petitioner herein/complainant, an FIR at Crime No. 375/2012 was registered at Police Station Huzrat Kotwali, Gwalior for the offence punishable under Sections 294, 307, 323 read with 34 of IPC against the accused persons including the respondent No. 2 herein. After due investigation, challan was filed for offence punishable under Sections 294, 323, 307 read with 34 of IPC against all the three accused persons including the respondent No. 2. Learned Trial Judge vide order dated 03.12.2012 framed the charge u/s 307 in alternate 307/ 34 of IPC against the respondent No. 2 herein/accused, Kamal Dhingra. The respondent No. 2/accused preferred a petition u/s 482 of the Code challenging the order dated 03/12/2012 whereby the charge u/s 307 in alternate 307/ 34 of IPC has been framed against him. This Court vide order dated 14/03/2013 passed in Mis. Cr. Case No. 9922/2012 allowed the petition and set aside the order framing charge and directed the Trial Court to frame proper charge against the respondent No. 2 herein/accused with regard to injury caused to the victim, Prahlad. The relevant portion of the order is relevant which reads as under:

On the basis of aforesaid discussion by allowing this petition, the charge u/s 307 in alternate 307/ 34 of IPC against the petitioner is hereby set-aside and instead it, the Trial Court is directed to frame appropriate charge against the petitioner with respect to the injuries caused to victim, Prahlad and proceed with in accordance with law.

Shri Atul Gupta, learned counsel for the petitioner submits that the petitioner is 65 years of old man and on account of injuries sustained by him in the incident on 20/09/2012, he was engaged in his treatment and, therefore, mistakenly, he could not appoint a counsel in time despite notice was served upon him as a result of which, the impugned order has been passed behind back of the petitioner. On these grounds, learned counsel for the petitioner prays for recalling the order dated 14/03/2012 passed in Mis. Cr. Case No. 9922 of 2012 by this Court and to rehear the matter after giving opportunity of hearing to the petitioner.

Learned counsel for the respondent No. 2 submits that this petition for recalling the order in question is not maintainable as the High Court has no jurisdiction to alter or review its own judgment. In this regard, he has placed reliance on the decision of the Apex Court in the case of Hari Singh Mann Vs. Harbhajan Singh Bajwa and Others,

In response, learned counsel for the petitioner submits that in the case of Vishnu Agarwal Vs. State of U.P. and Another, the Hon''ble Apex Court considered its earlier judgment in the case of Hari Singh Mann (supra) and held that in case the judgment passed in the absence of the counsel, the Court can recall the order. He further placing reliance on the judgments of this Court in the cases of Gulam Ahmed Vs. Haji Maulana Mohammad Zahoor, and Parmeshwar Deen Patel Vs. Snehlata and Another, submits that review and recall of the order under Sections 362 and 482 of Cr. P.C., are distinct matters. A petition u/s 482 of Cr.P.C., may be filed to recall the previous order when the party is not heard and Section 362 of Cr. P.C., does not impose any prohibition for recalling the order.

I have considered the rival submissions of learned counsel for the parties and perused the record.

In the present case, the respondent herein/accused filed a petition u/s 482 of the Code for quashing the order dated 03/12/2012 passed by the Trial Court whereby charge framed u/s 307 in alternate 307/ 34 of IPC against him. The petitioner herein/complainant was impleaded as the respondent No. 2. Notice was issued to the respondent No. 2 and the same was duly served upon him on 20/02/13 but did not appear, thereafter, on 14/03/13, the matter was finally heard in the presence of the counsel of the petitioner and the Public Prosecutor and passed the order. The petitioner herein/complainant has not given plausible explanation for not in the participating in the proceedings despite the fact that the notice was duly received by him.

In these circumstances and in view of the order dated 14/03/13 passed in Mis. Cr. Case No. 9922 of 2012 by this Court, no case is made for review or recall the order.

Consequently, this petition fails and is hereby dismissed. Certified copy as per rules.