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2002 DIGILAW 1088 (RAJ)

Union of India v. Laxman Lal

2002-05-29

KHEM CHAND SHARMA

body2002
JUDGMENT 1. - The facts giving rise to this application under Section 482 read with Section 461 Cr.RC. for recalling the judgment of this court delivered on 20.11.1996 in Criminal Appeal No. 294/93 are as follows. 2. The accused respondents Laxman Lal and Shiv Singh were tried by the learned Sessions Judge for offence under Section 8/18 of the NDPS Act and at the conclusion of trial, they were found guilty of the said offence and were accordingly convicted and sentence by the trial court vide its judgment and order dated 10.8.93. 3. The accused respondents, feeling aggrieved by the judgment of conviction and sentence, preferred Criminal Appeal No. 294/93 in this court and this court vide its judgment dated 20.11.1996 allowed the appeal, set aside the conviction of the accused respondents and acquitted them of the charge. 4. The main thrust of the argument of learned counsel for the Union of India is that the case was instituted on a complaint under section 8 of the NDPS Act having been filed against the accused respondents by the central Government through Mahesh Kumar, Inspector, Central Narcotics Bureau. After investigation, the accused were charge sheeted and on conclusion of trial, they were convicted and sentenced. It is argued that the accused respondents preferred criminal appeal in the High Court and arrayed the State of Rajasthan as respondent, instead, Central Government through Central Narcotic Bureau. His grievance is that no notice of the appeal was given to the Central Narcotic Bureau and the appeal came to be decided by this court on 20.11.96 after hearing counsel for the accused and the Public Prosecutor, representing the State of Rajasthan. In these circumstances, the Union of India through Assistant Commissioner, Narcotics Department, Kota submitted the present Misc. Application under section 482 Cr.RC. on 24.4.97 for recalling the judgment dated 20.11.96 passed by this court on the ground that the case of the prosecution causing gross miscarriage of justice. Mr, Bhanwar Bagri, counsel for the Union of India vehemently argued that right of hearing is a valuable right, of which no litigant should be deprived of. According to him the principle of audi alteram partem would be violative if reasonable notice is not given to a party, inasmuch as it is fundamental principle that no body should be condemned unheard. According to him the principle of audi alteram partem would be violative if reasonable notice is not given to a party, inasmuch as it is fundamental principle that no body should be condemned unheard. Therefore, the powers under section 482 Cr.P.C. can be exercised by this court in a case where the judgment was delivered without affording an opportunity of being heard to the party concerned. In support of his argument, the learned counsel has placed reliance on Chhaja v. The State of Rajasthan (1988) Cr.L.R. (Raj.) 651 ). Habu v. State of Rajasthan ( 1987 RLR 1 ) : Girdhari Lal and others v. Pratap Rai Mehta and another (1989 Crl. R.J. 2382) ; Karam Das Sautha v. Sangat Ram (AIR 1964 H.R 37) ; M.M. Thomas v. State of Kerala and another (2000) 1 SCC 666 ) and Devki Nandan & Ors. v. State of Rajasthan & Anr. (1996 RCC(suppl) 13 ). 5. Per contra, learned Public Prosecutor and the learned counsel for the accused respondents have argued that this court has no power to review its judgment, in view of the provisions contained in Section 362 Cr.RC. and have relied upon State of Kerala v. M.M. Manikantan Nair (2001(2) Crimes 226 (SC) ; and Hari Singh Mann v. Harbhajan Singh Bajwa & Ors. (JT 2000 (Suppl.2) SC 394) . 6. I have considered the rival submissions. It appears from the record that when this application came up to consideration on 8.12.2000, this court formulated following two points for consideration, after the same being translated into English: (i) Whether, under the provisions of Section 465 Cr. PC. hearing a Public Prosecutor of the State instead Union of India, comes within the definition of an irregularity? (ii) Whether, hearing of a Public Prosecutor of the State in place of a Public Prosecutor of the Union of India was an illegality and on this Court the judgment of this court dated 22.11.96 is liable to be recalled? 7. In decide the above two questions, it would be appropriate or reproduce Section 465 Cr.RC. (ii) Whether, hearing of a Public Prosecutor of the State in place of a Public Prosecutor of the Union of India was an illegality and on this Court the judgment of this court dated 22.11.96 is liable to be recalled? 7. In decide the above two questions, it would be appropriate or reproduce Section 465 Cr.RC. which reads as under - Finding or sentence when reversible by reason of error, omission or irregularity- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceeding under this Code, or any error, or irregularity in any sanction for the prosecution, unless in the opinion of that Court, a failure of justice has in fact been occasioned. (2) In determining whether any error; omission or irregularity in any proceeding under this Code, or any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. 8. From a perusal of the above provision of Section 465 Cr.RC., it is crystal clear that Section 465 Cr.RC. is not applicable in the present case. It comes into play if it appears that any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularly in any sanction for the prosecution has occasioned a failure of justice, the appellate court can reverse the finding or sentence. Therefore, question No. 1 formulated by this court whether hearing of a Public Prosecutor of the State in place of Union of India is an irregularity within the meaning of Section 465 Cr.RC. has no relevance with the provision contained in Section 465 Cr.RC. Thus, question No. 1 stands decided accordingly. 9. So far as question No. 2 is concerned, suffice it to say that only controversy involved in the case was that Union of India remained unheard. has no relevance with the provision contained in Section 465 Cr.RC. Thus, question No. 1 stands decided accordingly. 9. So far as question No. 2 is concerned, suffice it to say that only controversy involved in the case was that Union of India remained unheard. However, the learned counsel appearing for the Union of India has not been able to produce any case law or any provision of law to make out a case that if the Union of India, instead of the Public Prosecutor, is represented by a Public Prosecutor of the State would amount to an irregularity. Thus, question no. 2 stands answered accordingly. 10. I have gone through the provisions of Section 362 Cr. RC. It is an undisputed fact that in the trial court, the Central Narcotic Bureau was represented by the State of Rajasthan through Public Prosecutor, who assisted the court in completion of trial and argued the case finally at the conclusion of trial. In this court also, the State Public Prosecutor represented the case of Central Narcotic Bureau and therefore, it cannot be said that the Central Narcotic Bureau remained unrepresented or was denied the opportunity of hearing and the judgment dated 20.11.96, which is sought to be recalled, was delivered without affording opportunity of hearing. 11. It may also be noted that no such grievance was made during the period of more than 3 years, during which this appeal remained pending in this court, inasmuch as appeal against conviction was filed in August 1993 and it was decided on 20.11.96. That apart, the present application for recalling of the judgment of this court has been filed after about 5 months from the date of judgment in the appeal. 12. For the reasons aforesaid, I do not find any merit in the application for recalling of the judgment. Consequently, the application of the petitioner filed under section 482 Cr.RC. stands dismissed.Application dismissed. *******