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2001 DIGILAW 654 (PAT)

Uma Shanker Jha v. State Of Bihar

2001-07-27

A.K.SINHA

body2001
Judgment A.K.Sinha, J. 1. The present application under section 482 of the Code of Criminal Procedure has been filed for recalling the order dated 7.5.2001 passed by me, whereby Criminal Revision No. 54 of 1999 was dismissed and direction was issued to the trial court to dispose of the case expeditiously preferably within the period of three months from the date of receipt of the order. 2. Some of the relevant facts, concerning the revision application filed by the petitioner, may be briefly stated as under : The petitioner filed a revision application against the order dated 23.11.98 passed by the Judl. Magistrate, Begusarai in G.R. No. 2849/95 (T.R. No. 655/98), whereby he rejected the petition filed by the petitioner to discharge him under section 47 (A) of the Excise Act. Being aggrieved with the said order the petitioner preferred this revision application before this court on 3.2.99 which was admitted by order dated 18.5.99 and further proceedings in the case was stayed. The case was fixed for hearing but the counsel appearing on behalf of the petitioner remained absent on three dates and the hearing was adjourned at the request of another lawyer, a friend of the advocate on record who prayed to adjourn the case on the ground that the advocate has gone to Delhi in connection with the treatment of his cousin. On 9.4.2001 similar prayer was made and order was passed to list the case after two weeks, The case was not listed for hearing after two weeks and on 7.5.2001 it came up for hearing. Again similar prayer was made by the friend of the counsel engaged in the case which was not allowed and the counsel appearing for the State was heard. The order passed by the (earned Magistrate was perused by me and since no infirmity was found in his order requiring any interference by this court, the revision application was dismissed, as indicated above. 3. Being aggrieved with that order the instant application under section 482 of the Code has been filed stating therein that the counsel appearing for the petitioner had gone to Delhi in connection with the treatment of his nephew. So, he could not attend the case and the petitioner was never informed earlier about the matter so that he could make aternative arrangement and as such, he is not guilty of any laches. So, he could not attend the case and the petitioner was never informed earlier about the matter so that he could make aternative arrangement and as such, he is not guilty of any laches. It has been prayed that since the dismissal order was not passed on merit so the provisions of Section 362 of the Cr. P.C. is not attracted. Hence, the order dated 7.5.2001 may be recalled and the revision application may be heard on merit. 4. It may be stated at the outset that the statement made in the instant application to the effect that the revision application was dismissed not on merit is not correct because the order dated 7.5.2001 passed by me indicates that f had perused the order passed by the Magistrate and did not find any infirmity in his order, so the revision application was dismissed. The learned counsel appearing for the petitioner accepts that by mistake wrong statement have been made in the instant application and, as a matter of fact the revision application was dismissed on consideration of the merit of the case. 5. The learned counsel, however, strenuously argued before me that the petitioner has made a prayer for recalling the order under Section 482 of the Cr. P.C. and not for reviewing the order and this court has got ample powers under section 482 of the Cr. P.C. to recall its order to secure the ends of justice. The learned counsel has relied upon the decision in the case of Habu V/s. State of Rajasthan reported in A.I.R. 1987 Rajasthan 83 wherein it was held as under : "The power of re-call is different than the power of altering or reviewing the judgment, and powers under S. 482, can be and should be exercised by the High Court for recalling the judgment in case the hearing is not given to the accused and case falls within one of the three conditions laid down under S. 482. While considering the scope of right of hearing the consideration has to be given to S. 304 Cr. P.C. Arts. 21 and 39A of the Constitution. Section 482 Cr. P.C. will have to be considered in the light of the aforesaid provisions. While considering the scope of right of hearing the consideration has to be given to S. 304 Cr. P.C. Arts. 21 and 39A of the Constitution. Section 482 Cr. P.C. will have to be considered in the light of the aforesaid provisions. !n all civilized and democratic societies right of hearing has been considered to be one of the most fundamental rights flowing from principles of natural justice and principles enshrined in well known maxim audi alteram partem. 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. It is a well known dictum that justice has not only to be done but it should aiso appear to have been done and, therefore, whenever a litigant comes before the Court it is essential that he must go having full faith in his mind that the Court has done justice with his case. It is true that all cannot go satisfied with the decision of the Court but of least all must have the satisfaction that they have been heard by the Court. The litigant who comes from different corners of the State cannot be expected to be around the Court when his case is called for hearing unless he has a competent and vigilant lawyer who informs him of approximate date of hearing of a case of the litigant himself is vigilant enough to keep in touch with his case, but most of the people who are illiterate and come to the Court have to bank on the information they receive, the treatment they get and the advice which is tendered to them by their counsel. It can also not be expected that each and every litigant will have the lawyers of the same competence which the other can afford, but at the same time it is always expected from the counsel that they would do their best in the best interest of their client. Equally is the responsibility of the Registry in being cautious about notifying the case properly when they come up for hearing. A litigant is always helpless and is at the mercy of others, whoever makes a mistake ultimate sufferer is he. Equally is the responsibility of the Registry in being cautious about notifying the case properly when they come up for hearing. A litigant is always helpless and is at the mercy of others, whoever makes a mistake ultimate sufferer is he. If the case is not properly shown in the daily cause list, i.e. either the number is wrong or the title is not properly given or the name of the counsel representing not shown the case will go unattended and if the lawyer misses the case despite the fact that it is properly or is busy elsewhere and is unable to attend the Court again sufferer is the litigant. It is for the Courts to see that the record is properly looked into with the assistance of the counsel before the case is finally decided. At the same time Court must ensure that the absence of the Counsel is neither deliberate nor meant to avoid the Bench, or the litigant or his counsel has tried to over reach the Courts. The Courts in such case must not hesitate in proceeding against such persons." 6. The learned counsel has also relied upon a decision decided by me which finds reported in 2000 (2) Ail P.L.R. 506 which is also on the point of recall and after relying on the judgments reported in A.I.R. 1987 Raj. 83 (FB), 1985 Cr. L.J. 23 the order passed in Cr. Misc. No. 3920 of 1995 (R) was recalled; Relying upon the aforesaid decisions it was submitted that the petitioner was deprived of his valuable right of hearing and for the fault of the lawyer the petitioner should not be made to suffer, it was submitted that the petitioner has not prayed for reviewing the order which is prohibited under Section 362 of the Cr. P.C. rather, the prayer is to recall the order so that the petitioner may be heard and Court has ample power under section 482 of the Cr. P.C. to recall the order to secure the ends of justice. The learned counsel also submitted that even if it is found that the counsel appearing for the petitioner was negligent or careless the petitioner should not suffer for his inaction. So, in this view of the matter also an opportunity should be given to the petitioner and the matter may be decided on merits. 7. The learned counsel also submitted that even if it is found that the counsel appearing for the petitioner was negligent or careless the petitioner should not suffer for his inaction. So, in this view of the matter also an opportunity should be given to the petitioner and the matter may be decided on merits. 7. The learned counsel referred to the case of Emperor V/s. Shivadutt, (1928) III Ind Cases 573 (A.I.R. Oudh 402) wherein it was held as under : "Where owing to counsels carelessness in not appearing in the Court at the time when a case is called on for hearing, his clients case goes unrepresented and an ex parte order is passed, the High Court has jurisdiction under S. 561-A of the Cr. P.C. to entertain an application to re-hear the matter, if, in its discretion, it considers it necessary to do so in order to secure the ends of justice." In the case of Central Inland Water Transport Corporation Ltd. V/s. Brojo Nath Ganguly, A.I.R. 1986 S.C. 1571 it was held as under: "The law exists to serve the needs of the society which is governed by it. If the law is to play its allotted role of serving the needs of the society, it must reflect the ideas and ideologies of the society. It must keep time with the heart beats of the society and with the needs and aspiration of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith said : "When I hear any man talk of an unalterable law, I am convinced that he is an unalterable Fool." The law must, therefore, in a changing society march in tune with the changed ideas and ideologies. Legislatures are, however, not best fitted for the rule of adapting the law to the necessities of the time for the legislative process is too slow and the legislatures often divided by politics, slowed down by periodic elections and overburdened with myriad other legislative activities. A constitutional document is even less suited to this task, for the philosophy and the ideologies underlying it must of necessity be expressed in broad and general terms and the process of amending a Constitution is too cumbersome and time consuming to meet the immediate needs. A constitutional document is even less suited to this task, for the philosophy and the ideologies underlying it must of necessity be expressed in broad and general terms and the process of amending a Constitution is too cumbersome and time consuming to meet the immediate needs. This task must, therefore, of necessity fall upon the Courts because the Courts can by the process of judicial interpretation adapt the taw to suit the needs of the society. In the case of Rafiq V/s. Munshilal A.I.R. 1981 S.C. 1400 it has been held as under : "Where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismisal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on the ground that a party who as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such an innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel." 8. The learned counsel appearing for the State, however, submitted that the Criminal Revision no. 54/99 which was dismissed by order dated 7.5.2001 by this Court after considering the merits cannot be altered or reviewed and the inherent powers under section 482 of the Cr. P.C. cannot be exercised to do what the Code specifically prohibits the courts from doing. It was submitted that section 362 expressly prohibits the Court from altering or reviewing its final order after the same is signed. As such, it would not be open to High Court to review or alter the order by admitting a fresh revision application. It was submitted that in view of the provisions of section 362 Cr. P.C. the order dated 7.5.2001 cannot be recalled. 9. In the case of Habu V/s. State of Rajasthan Full Bench A.I.R. 1987, 83 after considering the various judgments of the Apex Court, their lordships were of the view that the inherent power given under section 482 of the Cr. P.C. the order dated 7.5.2001 cannot be recalled. 9. In the case of Habu V/s. State of Rajasthan Full Bench A.I.R. 1987, 83 after considering the various judgments of the Apex Court, their lordships were of the view that the inherent power given under section 482 of the Cr. P.C. are wide enough to cover any type of cases, if three conditions as 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 purpose of preventing abuse of the process of any Court, (c) For otherwise securing the ends of justice. The following views were also expressed in the same judgment: (i) The principles of auti alteram partem shall be violated if right of hearing is taken away. (ii) That when the judgment is recalled it is a complete obliteration/abrogation of the earlier judgment and the Appeal or the Revision, as the case may be, has to be heard and decided afresh. (iii) 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 Cr. P.C. are attracted should interfere. 10. It is well known dictum that justice has not only to be done but it should also appear to have been done and therefore, whenever a litigant comes before the Court it is essential that he must go having full faith in his mind and the Court has done justice with his case and he must at least have the satisfaction that he has been heard by Court. The position of a litigant is also helpless because he has to depend upon his lawyer and mercy of others. He has full confidence on his counsel that he will do his best in his interest. It is well settled that if due to carelessness or laches on the part of lawyer, a case is dismissed the litigant should not be made to suffer. He has full confidence on his counsel that he will do his best in his interest. It is well settled that if due to carelessness or laches on the part of lawyer, a case is dismissed the litigant should not be made to suffer. In the instant case the admitted position is that the counsel appearing for the petitioner was not present on any date when the case was fixed for hearing and through the aid of his colleague adjournments were prayed for which were allowed by the court on three occasions but ultimately the court was compelled to reject the similar prayer since the matter had become too old and the stay was granted in this case. Eventually, the matter was heard ex parte and revision preferred by the petitioner was dismissed after perusing the order passed by the trial court. It wouid, therefore, appear that no detail hearing was done in the case and the petitioner could not get the opportunity of detail hearing. The counsel for the petitioner has, therefore, submitted that the petitioner was highly prejudiced because his case was not argued due to which the revision application was dismissed and the petitioner did not get justice. There was lapse on the part of conducting lawyer which has made him to suffer. It was, therefore, submitted that in the ends of justice the petitioner should be afforded an opportunity of hearing which will be in conformity with the principles of natural justice and the court has inherent powers under sections 482 of the Cr. P.C. to recall the order for securing the ends of justice. 11. The Apex Court in the case of Bhagwat Singh V/s. Commissioner of Police reported in A.I.R. 1986 S.C. 1285 held as under : "To emphasize is that right of hearing is very important right which no litigant should be deprived." In view of the principles laid down by the Apex Court in so many decisions as also the decision reported in A.I.R. 1987 Rajasthan 83 which is based on several decisions of the Apex Court, I am of the view that the order dated 7.5.2001 passed in Criminal Revision No. 54 of 1999 should be recalled for the ends of justice. 12. In the result, therefore, the order dated 7.5.2001 is recalled and the case may be listed for hearing afresh. 12. In the result, therefore, the order dated 7.5.2001 is recalled and the case may be listed for hearing afresh. After giving opportunity of hearing afresh, the order shall be passed in accordance with law. It is, however, made clear that on the date fixed for hearing the counsel appearing for the petitioner must remain present and come prepared to argue in this case.