Shri A.S. Bhagat and Another vs Steelsworth Ltd. and Others

S. Haque, J.—The question is whether this Court is competent to recall or set aside its own judgment passed on merit in a Criminal Revision and rehear the matter. The present application is purported to be u/s 397/401/482 of the Code of Criminal Procedure praying to re-call the judgment dated 28.6.85 passed in Criminal Revision No. 78 of 1982 and for rehearing of the matters.

The present Petitioner was one of the Respondent in that Revision. The Revision came up for hearing on 28.6.85. Respondents lawyer Mr. S. Birmiwal was absent on that day. The case being ready for hearing was heard. Learned Counsel Mr. C.K.S. Barua argued for the Petitioner in the Revision and Mr. A.H. Saikia, Public Prosecutor argued for the Respondent No. 3 State of Assam and judgment was delivered on merit in open Court on that very day the 28.6.85.

Now learned Counsel Mr. S.K. Sen for the present Petitioner submitted that this Court has ample power u/s 482 of the Code of Criminal Procedure to re-call its own judgment and rehear the matter because the judgment was rendered without hearing the party due to absence of lawyer. Mr. K.C. Bezbarua for the Respondent submitted that the Court has no power to recall its judgment and that the Code of Criminal Procedure has not prescribed any such provision. The submission of Mr. Sen is not acceptable.

A bar has been imposed on the Court by the provision of Section 362 Code of Criminal Procedure to alter or review the judgment or final order once signed by the Court Section 362:

Save as otherwise provided by this Code or by any law for the time being in force, no Court, when it has signed its judgment or final order disposing a case, shall alter or review the same except to correct a clerical or arithmetical error.

Scope of review has been denied by the Code of Criminal Procedure. A rehearing of a matter can be opened only after setting aside the judgment or the final order already passed. The Court passing the judgment or the final order is not competent to set aside the same by ignoring the bar in the procedural law simply because the lawyer of a party was absent at the hearing and the judgment passed in his absence.

Mr. Sen referred the decision of the Hon''ble Supreme Court reported in Rafiq and Another Vs. Munshilal and Another, This does not help him in the instant cases. That was an appeal before the Supreme Court under Order 43 Rule I against orders of the High Court under Rule 17 and 19 of Order 41 of the Code of Civil Procedure. Hon''ble Supreme Court set aside both the orders on the ground that the party in original appeal should not suffer for misdemeanor or inaction of his lawyer and remanded the case for disposal according to law. In that matter the parties bad right of hearing under Rule 16 of Order 41. That principle is not applicable to the High Court in case of a Criminal Revision disposed of by the High Court itself on merits in the absence of the lawyer of one of the party. Whereas a party has no absolute right of hearing in the matter of a Criminal Revision.

Mr. Sen also referred the judgment/order dated 30.7.84 of the Hon''ble Supreme Court in Criminal Appeal Nos. 354-355 of 1984 in SLP (CRL) Nos. 1400-01 of 1983 arising out of an order dated 14.3.83 in Criminal Revision No. 336/82 of this Court (G.H.C.). In that, the High Court heard the revision on 14.3.83 in absence of lawyer of a party (applt. before S.C.) and passed final order but the case was actually fixed for hearing on 4.4.83. The Supreme Court observed that the absentee party was under the impression that the case would come up on 4.4.83 only and for that reason allowed the appeal by setting aside the order dated 14.3.83 of the High Court, and directed for disposal of the case after hearing both the parties. In that matter scope of re-hearing came to the High Court only after setting aside the final order of the High Court. Position is quite; different in the present cases. The High Court in the present case can not recall or set aside its own judgment passed on merits for the purpose of re-hearing the matter of the Criminal Revision. Such recourse can not be adopted by invoking Section 482 Code of Criminal Procedure because it is prohibited by the code.

Relying on a decision of their Lordships in the Supreme Court State of Orissa Vs. Ram Chander Agarwala and Others, a Division Bench of this Court in a case reported in (1985) 2 G.L.R. 399 held that law prohibits review of a judgment or final order of High Court, passed by itself, once it is signed except correcting a clerical or arithmetical error and the provisions of the Code of Criminal Procedure expressly prohibit the High Court to alter, review or revise a judgment or final order once as it is delivered and signed. As to the nature of right of hearing of a party in Criminal Revision, the Division Bench by referring to the provision of Section 403 held that the right has been expressly taken away and option has been given to the Court to bear any party either personally or by advocate. But in a Criminal Appeal the Appellant has a statutory right of bearing which has been expressly taken away in respect of the parties to a Criminal Revision.

This Court has to power and there is no provision as such in the Code of Criminal Procedure to recall or set-aside its own judgment passed on merit in a Criminal Revision for the purpose of rehearing the matter. Not to speak of recalling a judgment but the Court even has no power to alter, review or revise a judgment or final order once it is signed except performing such acts permissible under the provision of Section 362 in case of necessity only for the ends of justice.

This application (Misc. Case No. 371 of 1985) is dismissed.