Shriniwas Mahto @ Niwas @ Sriwas vs State of Jharkhand

R.R. Prasad, J.

I.A. No. 1468 of 2009

This application has been filed for condonation of delay of 16 days.

Having perused the reasons stated in the application for condonation of delay, I deem it just and appropriate to condone the delay of 16 days in filing the Cr. Misc. Petition.

This application is, accordingly, allowed and disposed of.

Heard learned Counsel appearing for the petitioner on merit.

This application has been filed for restoration of Cr. Rev. No. 35 of 2006 which was dismissed on 7.8.2008 without hearing learned Counsel appearing for the petitioner but after holding that there has been no merit in the revision application.

Learned Counsel appearing for the petitioner submits that Cr. Rev. No. 35 of 2006 had been preferred against the order dated 22.12.2005 passed by learned 1st Additional Sessions Judge, Rajmahal in S.C. No. 107 of 2005 whereby application filed u/s 227 of the Code of Criminal Procedure for discharge from the offences under Sections 326 and 307 of the Indian Penal Code was rejected.

It was pointed out that the said revision application was heard on 2.5.2007 on the point of admission on which date the court, having been satisfied, prima facie, with the submission advanced on behalf of the petitioner, was pleased to call for the carbon copy of the case diary.

After receipt of the carbon copy of the case diary, the matter was placed on 7.8.2008, on which date learned Counsel for the petitioner could not appear as he had taken his wife, who was having abdominal pain, to Dr. S.K. Trivedi, Civil Assistant Surgeon for treatment. In proof of the said statement, a photo copy of the prescription of Dr. S.K. Trivedi has been annexed as Annexure 1 to the supplementary affidavit. However, the court after recording non-appearance of the counsel for the petitioner dismissed the application after holding that there has been no merit in the application.

Under that situation, this application has been filed u/s 482 of the Code of Criminal Procedure for recalling the order under which the said revision application had been dismissed on merit.

At the very outset it was put to learned Counsel appearing for the petitioner that when the said revision application had not been dismissed for default, rather it had been dismissed after holding that the case does not have any merit any application filed u/s 482 of the Code of Criminal Procedure for restoration of the revision application or recalling the order under which it had been dismissed would be maintainable in view of the provision as contained in Section 362 of the Code of Criminal Procedure stipulating therein that no court after dismissing of a case finally shall alter or review the same, except to correct clerical or arithmetical error.

Learned Counsel appearing for the petitioner submits that the application u/s 482 of the Code of Criminal Procedure has been filed for recalling of the order under which it was dismissed without hearing learned Counsel for the petitioner and hence, in that situation, it can very well be maintained for recalling the order dismissing the revision application as the power of recall is different than the power of altering or reviewing the judgment.

Learned Counsel in support of his submission has relied upon a decision rendered by the Full Bench of the Rajasthan High Court in a case of Habu Vs. State of Rajasthan, .

Having heard learned Counsel appearing for the parties and on perusal of the decision, referred to above, I do find that almost similar was the issue before the Rajasthan High Court which had been referred to the Full Bench in view of the conflicting decision as it is there in the instant case.

Following was the issue before the Full Bench of the Rajasthan High Court:

Whether the judgment given in absence of the appellant or his counsel but the case decided on merits, can be re-called by the Court in its inherent powers u/s 482 of the Code of Criminal Procedure.

Since the matter was of general interest and importance, members of the Bar were called upon to assist in coming to right conclusion.

Two views were expressed on the point. According to one view, the provision as contained in Section 362 of the Code of Criminal Procedure is mandatory which puts complete bar and as such, the provision u/s 482 of the Code of Criminal Procedure cannot be invoked for the purpose of reviewing or altering he judgment. The other view was that recalling of an order is different than reviewing or altering and if the court is of the opinion that gross injustice had been done, then Section 482 of the Code of Criminal Procedure should be invoked to recall the judgment for its rehearing.

Learned Counsel in support of their views, cited number of decisions rendered by different High Courts and even by the Hon''ble Supreme Court. Counsel supporting the view that the prohibition u/s 362 of the Code of Criminal Procedure would be complete bar for invoking the application u/s 482 of the Code of Criminal Procedure put forth following points.

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

(ii) That the powers given u/s 362 of the Code of Criminal Procedure 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 altering or reviewing the judgment or the final order and as such principle of functus officio has been accepted.

(iii) That the prohibition contained in Section 362 of the Code of Criminal Procedure is not only restricted to the trial court but also extends to appellate court or the revisional court.

(iv) That the inherent powers of the court cannot be invoked where there is an express prohibition and in other words Section 482 of the Code of Criminal Procedure cannot be invoked.

However, following propositions were advanced by another set of Lawyers expressing their views that the prohibition of Section 362 of the Code of Criminal Procedure would not be a bar for invoking jurisdiction of the Court u/s 482 of the Code of Criminal Procedure for securing ends of justice or preventing an abuse of the process of court.

(i) Right of the accused to be heard is his valuable right which cannot be taken away by any provision of law,

(ii) If the accused has not been given an opportunity of being heard or is not provided with the counsel when not duly represented it will be violative of principles of natural justice as well as Article 21 of the Constitution,

(ii) That to provide defence counsel in case the accused is not in a position to engage is fundamental duty of the State and has throughout been recognized and now incorporated in Section 304 of the Code of Criminal Procedure and in Article 39A of the Constitution,

(iv) That bar of review or alter is different than the power of re-call,

(v) That inherent powers given u/s 482 of the Code of Criminal Procedure are wide enough to cover any type of cases if three conditions mentioned therein so warrant, namely-

(a) for the purpose of giving effect to any order passed under the Code of Criminal Procedure;

(b) for the purposes of preventing the abuse of the process of any Court; and

(c) for securing the ends of justice.

(vi) The principle of audi alteram partem shall be violated if right of hearing is taken away,

(vii) That when the judgment is re-called it is a complete obliteration/abrogation of the earlier judgment and the Appeali or the Revision, as the case may be, has to be heard and decided afresh,

(viii) That a Court subordinate to High Court cannot exercise the inherent powers and the Code restricts it to the High Court alone.

(ix) That no fixed parameters can be fixed and hard and fast rule also cannot be laid down and Court in appropriate cases where it Is specified that one of the three conditions of Section 482 of the Code of Criminal Procedure are attracted should interfere.

The Court having considered the submission and the precedents did hold that while considering on scope of right of hearing in exercise of power u/s 482 of the Code of Criminal Procedure due consideration has to be given to Section 304 of the Code of Criminal Procedure and Articles 21 and 34A of the Constitution of India as right of hearing has been considered to be one of the fundamental rights flowing from principles of natural justice and principles enshrined in well known maxim audi alteram partem the court went on further to observe that inherent powers are pervasive and comprehensive enough to arm the Court for advancing the cause of justice and to prevent the abuse of the process of the court.

On the said premise, it was ultimately held that the power of re-call is different than the power of altering or reviewing the judgment and, therefore, power u/s 482 of the Code of Criminal Procedure can be and should be exercised by the High Court for re-calling the judgment in case the hearing is not given to the accused and the case falls within one of the three conditions laid down u/s 482 of the Code of Criminal Procedure.

Keeping in view the aforesaid proposition of law in the context of the fact of this case that the case was dismissed without hearing the counsel for the petitioner, who could not appear for unavoidable reason holding therein that there has been no merit I do not find any reason to record my disagreement with the view taken by their Lordships in the aforesaid case referred to above. Consequently, the order dated 7.8.2008 under which the case was dismissed is fit to be recalled for securing ends of justice.

In that view of the matter, the order dated 7.8.2008 under which criminal revision application was dismissed is hereby recalled and the case (Cr. Rev. No. 35 of 2006) is restored to its original file. Accordingly, this application is allowed.