Gaya Mahto v. Babu Ram Singh — 1997 DIGILAW 443 (PAT)

Judgment P.K.Sarin, J. 1. This application under Sec. 482 of the Code of Criminal Procedure (hereinafter referred to as the Code) has been moved by the opposite party of Criminal Revision No. 574 of 1993 for recalling the order dated 3.10.1994 passed in the said revision and restoring the case to its number. 2. The said criminal revision was filed by the petitioners of the criminal revision and the matter related to a proceeding under Sec. 145 of the Code. This Court heard the said criminal revision on 3.10.1994 and allowed the revision by final order. 3. The opposite party, who has moved the present application for recalling that order, has stated in his application that on the date of hearing his learned Counsel could not appear in court due to misunderstanding and in this way the opposite party has not been heard in the said case before disposal of the same. It has been stated in the application that the criminal revision was earlier listed before Hon ble Mr. Justice D.S. Dhaliwal but the case was adjourned for two weeks on the prayer of the petitioner on the ground of illness of his learned Counsel. It is stated that on 3.10.1994 the said criminal revision was listed for hearing before Hon ble Mr. Justice O.N. Asthana (since superannuated). It is averred that due to unexpected and sudden change of court for hearing the Advocates clerk could not mark to the case was fixed for hearing in the court of Hon ble Mr. Justice Asthana and due to misunderstanding and not making the case the Advocate for the opposite party could not appear on account of bona fide mistake and the revision has been allowed without hearing the opposite party. 4. It is contended by the learned Counsel for the petitioner that there is sufficient ground for recalling the order dated 3.10.1994 as the learned Counsel for opposite party could not appear on account of bona fide mistake by not marking the list as he was under the impression that the case would again be listed before Hon ble Mr. Justice Dhaliwal. The learned Counsel has relied upon several decisions in support of his contention that when the counsel is absent the order may be recalled. Justice Dhaliwal. The learned Counsel has relied upon several decisions in support of his contention that when the counsel is absent the order may be recalled. Learned Counsel for opposite party (applicant) has relied on the decisions in the cases of Ramballabh Jha V/s. The State of Bihar -- : Kashinath Singh and Ors. V/s. State of Bihar and Ors. 1989 (1) BLJR 323 : 1987 East Cr C 139 : 1988 PLJR 1130, wherein the name of the learned Counsel for the party concerned had not been printed in the cause list, instead a wrong name was printed and on account of not showing the name of the learned Counsel on the cause list it was held that learned Counsel whose name ought to have been shown in the cause list could not be said to have been given an opportunity of being heard and it was found to be fit case for recalling order holding that no opportunity of hearing was given to the party concerned. In the present case, the facts are different. It is not the case of the opposite party (applicant) that the name of the learned Counsel for the petitioner was not shown in the cause list or that any wrong name was shown in the cause list against the criminal revision case. Here the averment is that the learned Counsel could not mark the cause list as the case was listed before another Bench and not before Hbnble Mr. Justice Dhaliwal. Therefore, the said decisions do not help the opposite party. 5. The learned Counsel has next relied upon a decision of Allahabad High Court in the case of Chhotey V/s. Ram Prasad -- , wherein the facts were that the name of counsel for the petitioner was not shown in the cause list and the petition was decided in absence of counsel. In these circumstances it was held that the same Judge, who decided that petition, had ample power under Sec. 561-A of the Code of Criminal Procedure, 1898, to order a rehearing. This case also does not help the opposite party as it is not the case that the name of the learned Counsel was not shown in the cause list and the counsel could not be said to have any notice of listing of the case in absence of his name in the cause list. 6. This case also does not help the opposite party as it is not the case that the name of the learned Counsel was not shown in the cause list and the counsel could not be said to have any notice of listing of the case in absence of his name in the cause list. 6. The learned Counsel for the opposite party has next placed reliance on a decision of this Court in the case of Siaram Yadav V/s. State of Bihar 1989 (2) BLJR (NOC) 9 : 1989 East Cr C 140: 1989 PLJR 645. In the said case it has been held that appeal once admitted for hearing cannot be dismissed for non-appearance of the appellant or respondent. That is not the case here and the facts of the present application are different than the case where the revision might have been dismissed for non-appearance of the petitioner and his counsel. There is difference between dismissal in default and dismissal on merits after hearing of the application. This case also does not assist the learned Counsel for the opposite party. 7. The learned Counsel for the opposite party has also placed reliance on a decision in the case of Muhammad Sadig V/s. The Crown AIR 1925 Lah 355, wherein it has been held that where an appeal has been dismissed without the appellant or his pleader being given a reasonable opportunity of being heard in support of the same the order dismissing the appeal must be held to have been passed without jurisdiction and the Court has inherent power to make an order that the appeal should be re-heard after giving the appellant or his counsel a reasonable opportunity of being heard in support of the same. In the present case, it cannot be said that the opportunity of hearing was not given to the opposite party. The case was listed for hearing with the names of the learned Counsel appearing in the cause list and that was sufficient notice of giving an opportunity to the parties of being heard in support of that case. It is not the case that the opportunity of hearing has not been given. The case was listed for hearing with the names of the learned Counsel appearing in the cause list and that was sufficient notice of giving an opportunity to the parties of being heard in support of that case. It is not the case that the opportunity of hearing has not been given. The case was shown in the cause list and the learned Counsel for the opposite party did not appear, the default is on the part of the parties concerned or the learned Counsel and on such default it cannot be argued that the opportunity of hearing was not given. 8. The learned Counsel for the opposite party has placed reliance on a decision in the case of Vijai Pal V/s. State AIR 1959 Alld 359, wherein it has been held that the court has inherent power to prevent abuse of process of court. In the said case jail appeal as well as represented appeal were filed before the court and the jail appeal was heard and disposed of separately by mistake. When the represented appeal came up for hearing the mistake was detected. Question arose whether after disposal of the jail appeal the represented appeal could be heard. It was held that the right of hearing in the represented appeal would not be denied because of the mistake of the office of the court and it was found that the appellants had been deprived of the right of being heard through their counsel in the facts of that case it was held that the court had inherent power to hear the represented appeal as no opportunity of hearing had been given to the appellants in the represented appeal because the names of the learned Counsel were not printed in the cause list. The facts of the present case are different. As already observed it cannot be said that opportunity of hearing had not been given to the opposite party of the revision. 9. The facts of the present case are different. As already observed it cannot be said that opportunity of hearing had not been given to the opposite party of the revision. 9. The learned Counsel for the petitioners of the revision has contended that once final order has been passed in the criminal revision it cannot be set aside by recourse to inherent powers of the court in view of provisions of Sec. 362 of the Code which bars the alteration of the judgment already delivered in support of his contention the learned Counsel has placed reliance on a decision of the Apex Court in the case of Smt. Sooraj Devi V/s. Pyare Lal -- , wherein it has been held that in view of Sec. 362 of the Code only clerical and arithmetical error cold be corrected but the inherent power of the court cannot be invoked for doing that which is specifically prohibited by the Code. It has been observed that the provisions of Sec. 362 of the Code bars the Court from altering or reviewing the judgment subject to what is otherwise provided by the Code or by any other law for the time being in force. It was observed that inherent power of the court is not contemplated by said saving provision contained in Sec. 362 as those words referred to those provisions only where the Code or other law has specifically authorised the court to alter or review its judgment. 10. What the learned Counsel for the opposite party has contended is that by misunderstanding on his part that the case would be listed again before Hon ble Mr. Justice Dhaliwal he could not mark the list which was appearing before the Bench presided over by Mr. Justice O.N. Asthana as such he could not appear. This ground does not appear to be a case in which an opportunity of hearing is not given to the opposite party and to secure ends of justice inherent powers of the Court be invoked to recall or review the final order passed in the criminal revision. Sec. 362 of the Code bars the Court to alter or review its judgment after it has been delivered except to correct the clerical or arithmetical mistake. Sec. 362 of the Code bars the Court to alter or review its judgment after it has been delivered except to correct the clerical or arithmetical mistake. It a party did not appear despite case appearing in the cause list and the name of the learned Counsel also appearing in the cause list he cannot come afterwards to invoke the inherent power of the court to recall the order on account of the fact that he could not appear at the time of hearing. In my opinion, inherent powers cannot be invoked in these circumstances. The learned Counsel for the opposite party has also raised contention about the error of fact in the final order dated 3.10.1994. If that be so that would not be ground for invoking the inherent power of the court to review its own judgment which is barred by virtue of provisions of Sec. 362 of the Code. Therefore, any mistake regarding discussion of fact would not be a ground to set aside the order as that would amount to review courts order which cannot be done in view of the provisions of Sec. 362 of the Code. 11. Considering the entire facts and cirucmstances of the case, it does not appear to be a fit case for invoking the inherent powers of the court to recall the final order dated 30.10.1994 passed in criminal revision. The application is dismissed accordingly.