State of U.P. vs Prem Singh and Others

N.L. Ganguly, J.—This application u/s 482, Code of Criminal Procedure has been filed by the opposite party that the order dated 23.4.1994 passed by this Court be recalled and a further prayer has been made to stay the operation of the order dated 23.4.1994.

I have heard Sri Veer Singh, learned Counsel for the applicant at length. The learned Counsel for the applicant placed the decision reported in (XXII)1987 ACC 364, Habu v. State of Rajasthan. The learned Counsel for the applicant submitted that the Supreme Court has observed in the judgment reported that the power u/s 482, Code of Criminal Procedure for recall is different from the power of altering or reviewing a judgment. The Supreme Court was clear and categorical in making the observation that the power u/s 482, Code of Criminal Procedure can be and should be exercised by the Court for recalling the judgment in case the hearing is not given to the accused and the case falls within one of the preconditions laid down u/s 482, Code of Criminal Procedure. The learned Counsel has no option except to argue the case for reviewing the order passed by this Court. He has not addressed the Court or satisfied the Court with any material why after filing of the appearance memo before this Court on 29.9.1993 no counter-affidavit was filed on behalf of the applicants and why the counsel for the applicant-O.P. was not present in court when the case was called out and taken up in the revised list. The applicant cannot make a complaint that he was not given opportunity of filing any counter-affidavit or was not provided opportunity of hearing. The case law cited by the learned Counsel is of no consequence and does not help him.

The learned Counsel for the applicant cited another decision reported in Bhagirathsinh Judeja Vs. State of Gujarat, . This decision deals with the question that when an application for cancellation of bail is to be allowed what are the relevant considerations. The learned Counsel for the applicant cited another decision reported in Shyam Bihari Vs. State of Madhya Pradesh, . The Madhya Pradesh High Court was pleased to consider the provisions of old Section 561A, Code of Criminal Procedure along with the provisions of Section 369. The Court observed that the express provisions of the Code which empower the Court to alter or review its judgment in certain specified cases. Hence the High Court has no inherent powers to alter or review its own judgment in a criminal case once it has been pronounced or signed. Further it observed that there are exceptions to the above principle, such as cases where the earlier decision was without jurisdiction or in default of appearance without an adjudication on the merits or without notice of hearing to the parties. The principle enunciated by the Madhya Pradesh High Court is also of no help to the applicant. It is not the case of the applicant that he was not given an opportunity of hearing. In fact the challenge by the application u/s 482, Code of Criminal Procedure is to seek recall of the order passed by this Court on merits. That is not permissible nor is the intention of the judgment cited.

Lastly, another photostat copy of the judgment reported in Aslam Babalal Desai Vs. State of Maharashtra, of Supreme Court was placed before the Court, which deals with the powers of the Court under Sections 437(5) and 439(2) of Code of Criminal Procedure. Here we are not concerned nor considering the powers of this Court u/s 439/438, Code of Criminal Procedure. This Court considered the application for cancellation of bail and on merits was satisfied that the case was a fit case in which the bail granted by the Court below was liable to be set aside and quashed. The bail order granted by the Court below was cancelled on merits.

After hearing the learned Counsel for the applicant at length I am of the view that in the garb of application u/s 482, Code of Criminal Procedure the matter decided on merits cannot be reopened. The Court had examined the facts of the case and detailed discussions are contained in the order passed by me. I am not inclined to invoke the Jurisdiction u/s 482, Code of Criminal Procedure in the present case in view of the fact that the applicant-opp. parties themselves are to be blamed if they did not file any counter-affidavit and their counsel did not appear in Court atleast to assist the Court.

The application is hereby dismissed.