RAJ PRAKASH v. STATE OF RAJASHTAN — 1997 DIGILAW 589 (RAJ)

Judgment M. A. A. KHAN, J, J. ( 1 ) BY order dated January 27, 1997 petitioner Criminal Revision Application No. 52 of 1990 u/s Section 397 Cr. PC. Against the order of his conviction and sentence for offence u/ Section 7/16 of the Prevention of food Aduleretion Act, 1954 (the Act) was dismissed subject to reduction in the sentence awarded to him. This petition u/ Section 482, Cr. P. C seeks recalling of the said order the ground that on the date of hearing the application was not notified either to the applicant or to his Counsel. ( 2 ) THE learned Counsels for the parties were heard at length and the relevant record was gone through. ( 3 ) SECTION 397 (1); Cr. P. C. empowers the High Court and the Sessions Judge to call for and examine the record of any proceedings before any inferior criminal Court situated within its or his local Jurisdiction fur the purpose of satisfying itself or himself as to the correctness, legality for propriety of any finding sentence or order recorded or passed and as to the regularity of any proceedings of such inferior Court, and may, when calling of such record, direct that the execution of any sentence or order be suspended or if the accused is in confinement that he be released on bail or on his own bond pending the examination of the record. On reading Section 397 read with Section 401. Cr. P. C. it is clear that the High Court can exercise all the powers of an appellate Court conferred by Sections 386, to 391 while exercising its powers u/s 397 Cr. P. C. either suomotu or on an application from the aggrieved person, subject to the limitations that the finding of acquittal cannot be converted into a finding of conviction and that the enhancement of sentence if made must abide by the first and second proviso of Section 386. Cr. P. C. ( 4 ) SUB-SECTION (2) of Section 401 provides that no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. Cr. P. C. ( 4 ) SUB-SECTION (2) of Section 401 provides that no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. The object behind the exercise of the devisor jurisdiction either by the High Court or the Sessions Judge is to satisfy itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed and as to the regularity of any proceedings of any inferior. Court. This object. Therefore, requires that once revisory jurisdiction u/section 397. Cr. P. C. has been invoked in a case, by either the High Court or the Sessions Judge, the proper way to exercise such jurisdiction would lie in disposing the matter on merits after examining the record of the inferior Court and recording satisfaction as to the correctness, legality and propriety of any finding, sentence or order recorded or passed and as to the regularity of any proceedings of such Court. It means that an application u/section 397. Cr. P. C. has to be decided on merits and not otherwise. In other words, such an application cannot be dismissed summarily for default of appearance of the accused or other persons. The exercise of the powers u/section 397. Cr. P. C. in that manner therefore. Conveys the message that though hearing by a party to revisional proceedings cannot be claimed as of right yet in view of Subsection (2) of Section 401. Cr. P. C. an opportunity of hearing the accused other person or his pleader is to be given when an order is likely to be made to his prejudice. However, the use of the words personally or by pleadert clarifies that the opportunity of hearing may be given by notifying the date and place of hearing of the matter to either of them. Putting in, appearance by either of them and assistance to the Court is not a requirement of law of the exercise for the power u/section 397 read with Section 401 by the High Court in view of the nature of duty cast upon it by Section 397 (1 ). Cr. P. C. this view. I think is fortified by the observations of the Apex Court in the case of Bani Singh and Ors. Cr. P. C. this view. I think is fortified by the observations of the Apex Court in the case of Bani Singh and Ors. v. State of U. P. , where it was laid down that:15. Secondly the law expects the appellate Court to give a hearing to the appellant or his Counsel if he is present and to the Public Prosecutor, if he is present, before disposal of the appeal on merits. Section 385 posits that if the appeal is not dismissed summarily the appellate Court shall cause notice of the time and place at which the appeal will be heard to be given to the appellant or his pleader. Section 386 then provide that the appellate Court shall, after perusing the record hear the appellant or his pleader, if he appears. It will be noticed that Section 385 provides for a notice of the time and place of hearing of the appeal to be given to either the appellant or his pleader and not to both presumably because notice to the pleader was also considered sufficient since he was representing the appellant. So also Section 386 provides for a pearing to be given to the appellant or his lawyer, if he is present and both need not be heard, it is the duty of the appellant and his lawyer to remain present on the appointed day time and place when the appeal is posted for hearing. This is the requirement of the 9,ode on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial Court. We would, however, hasten to add that if the accused is in jail and cannot, on his own, come to Court, it would be advisable to adjourn the case and fix another date to facilitate the appearance of the accused! appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. appellant if his lawyer is not present. If the lawyer is absent, and the Court deems it appropriate to appoint a lawyer at State expense to assist it, there is nothing in the law to preclude it from doing so. We are therefore, of the opinion and we say so with respect that the Division Bench which decided Ram Naresh Yadav case, reported in AIR 1987 SC 1500 , did not apply the provisions of Sections 385-386 of the Code correctly when it indicated that the appellate Court was under an obligation to adjourn the case to another date if the appellant or his lawyer remained absent. 16. Such a view can bring about a stalemate situation. The appellant and his lawyer can remain absent with impunity, not once but again and again till the court issues a warrant for the appellants presence. A complaint to the Bar Council against the lawyer for non- appearance cannot result in the progress of the appeal. If another lawyer is appointed at State Cost, he too would need the presence of the appellant for instructions and that would place the Court in the same situation. Such a procedure can, therefore, prove cumbersome and can promote indiscipline. Even if a case is decided on merits in the absence of the appellant, the higher Court can remedy the situation if there has been a failure or justice. This would apply equally if the accused is the respondent for the obvious reason that if the appeal cannot be disposed of without hearing respondent or his lawyer, the progress of the appeal would be halted. ( 5 ) IN the instant case the date of hearing the petitioners application u/s Section 397 Cr. P. C. was fixed on 19-11-1996. The date and place of hearing was duly notified to petitioners Counsel Mr. M. M. Mehrish and Mr. M. L. Kumawat and Miss Deepa Ajwani, who had been appointed by the petitioner as his Counsel to plead and argue the matter for and on his behalf before this Court. None of them appeared when the application was called for hearing. I heard the learned Public Prosecutor in the case. The order on the application was reserved. None appeared thereafter, the order was dictated and pronounced in Court on 27-1-1997. The application was decided on merits by a speaking order. None of them appeared when the application was called for hearing. I heard the learned Public Prosecutor in the case. The order on the application was reserved. None appeared thereafter, the order was dictated and pronounced in Court on 27-1-1997. The application was decided on merits by a speaking order. Almost all the points raised by the petitioner in his application u/section 397 Cr. P. C. were considered and decided. ( 6 ) THE argument of Mr. Rathore, the learned Counsel for the petitioner, is that he had been engaged by the petitioner on 5-11-1996 to argue the application and he appeared on that date for and on behalf of the appellant but the hearing of the case was adjourned to 19-11-1996 but for that date his name was not notified in the cause list, circulated amongst the lawyers of the litigants. Mr. Rathore did file his vakalatnamat on 5-11-1996 but there is nothing on record of the case that Mr. M. M. Mehrish and Mr. M. L. Kumawat and Miss Deepa Ajwani had ever withdrawn their vakalatnama. Neither the vakalatnama filed by them nor that filed by Mr. Rathore bears any endorsement that the earlier Counsel of the petitioner had withdrawn their authority to argue the application or that Mr. Rathore had ever obtained No objectiont from them. Under such circumstances it cannot be, I think, proper of Mr. Rathore to urge that opportunity of being heard was not given to the petitioner or his pleader within the meaning of Section 401 (2) Cr. P. C. There is thus no merits in this petition though I am of the opinion that this Court has ample powers u/section 482. Cr. P. C. to recall its earlier orders in appropriate cases. The present case is certainly not of that specie. ( 7 ) I must put it on record that with the help of a plethora of rulings. Mr. Rathore did argue the main application also for the benefit of his client but in view of the fact that I had disposed off the application of the petitioner on merits after having considered all those points in sufficient details and also that I have found not case of recalling that order. I see no necessity of reproducing all the arguments and the cases relied upon by Mr. I see no necessity of reproducing all the arguments and the cases relied upon by Mr. Rathore only to reject them by reproducing the same reasoning as are contained in my order dated 27-1-1997. In the result I find no substance in this petition and dismiss it as such. Petition dismissed.