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2004 DIGILAW 1686 (ALL)

INDER DEO MAHESHWARI v. STATE OF U P

2004-08-27

K.N.OJHA

body2004
K. N. OJHA, J. Both these revisions were decided ex parte after hearing learned AGA. Applications have been moved for recall of the exparte judgment and for affording opportunity of argument. 2. Heard Shri A. B. L. Gaur, learned Sr. Counsel for revisionist Inder Deo Maheshwari and Shri G. C. Saxena, learned counsel for Ramesh and learned AGA and have gone through the record. 3. It is submitted by learned counsel for the revisionist that due to illness or mistake of the learned counsels, argument could not be advanced. Hence, if the revision is not heard on merits, the revisionist will have to serve-out the sentence passed under Section 7/16 of Prevention of Food Adulteration Act. Therefore, the prayer has been made for recall of the order. 4. Learned AGA has submitted that there is no provision in the Criminal Procedure Code for recall of the order. Therefore, application moved by the revisionist deserves to be dismissed. 5. Sri G. C. Saxena, learned counsel for the revisionist has placed reliance on Section 482 of the Criminal Procedure Code and it is submitted that this Court has power to recall orders in order to prevent injustice to the accused revisionist. 6. In AIR 1959 Alld 315, Raj Narain v. State, it has been held by a Full Bench of this Court that the High Court has power to review, recall or alter its own earlier decision in a criminal revision and rehear the same. This can be done only in cases following under one or other of the three conditions mentioned in Section 561-A of the Criminal Procedure Code : (i) for the purposes of giving effect to any order passed under the Code of Criminal Procedure. (ii) for the purposes of preventing abuse of the process of any Court. (iii) for otherwise securing the ends of justice. 7. It would be a matter to be determined by the Court. In each individual case, the Court has inherent power to decide whether the circumstances of the case make-out that purpose and make it incumbent on the Court to exercise that power to achieve it. (iii) for otherwise securing the ends of justice. 7. It would be a matter to be determined by the Court. In each individual case, the Court has inherent power to decide whether the circumstances of the case make-out that purpose and make it incumbent on the Court to exercise that power to achieve it. Inherent power implies by its very nature, a power which is not expressed in specific terms but which must reside in a Court for achieving the higher and main purpose of a Court, namely, the purpose of doing justice in a cause before it and for seeing that the act of the Court does no injury to any of the suitors. Legislature enacts provisions to meet such circumstances which can be foreseen and once provision has been made in the statute about a certain circumstance, the occasion to invoke inherent power in that circumstance practically vanishes. An occasion to invoke the inherent power will not then arise for the simple reason that when the Code has provided for that contingency, that provided method must be considered to be the just method to meet that contingency and any other method thought of by the Court can not then be said to be a method which would advance the interest of justice. The inherent power is to be exercised sparingly, carefully and with caution and only then such exercise is justified. 8. Learned counsel for the revisionist has also placed reliance on AIR 1981 Supreme Court 1156, M. N. Sastri v. S. S. Satyanarayan. In this case, the case was disposed of by Additional Sessions Judge, West Godawari at Eloura, Andhra Pradesh without hearing the counsel for the respondent. When application was moved for recall of the order and for hearing the case on merits, it was held by Honble High Court of Andhra Pradesh that "it is true that the case has been disposed of without hearing the counsel for the respondent as he could not appear at the time of hearing because his name was not printed in the cause list. But this is a revision case where the respondent is not entitled to be heard as of right. Having regard to the facts of the case, I do not think any review of the order already passed is necessary. But this is a revision case where the respondent is not entitled to be heard as of right. Having regard to the facts of the case, I do not think any review of the order already passed is necessary. " Honble the Apex Court held in this matter that the view taken by the High Court is manifestly contrary to the audi alteram partem rule of natural justice which was applicable to the proceedings before the High Court. On this ground, the order of the High Court was set aside and the case was sent back with direction to dispose of the case on merits. 9. AIR 1987 Rajasthan 83, Habu v. State of Rajasthan, was also relied on in which Full Bench of High Court of Rajasthan, after considering the law laid down by Honble the Apex Court in many cases held that: "the power of re-call is different than the power of altering or reviewing the judgment, the powers under Section 482, can be and should be exercised by the High Court for re-calling the judgment in case the hearing is not given to the accused and the case falls within one of the three conditions laid down under Section 482. In all democratic societies right of hearing has been given utmost importance, rather laws have been enacted from time to time for providing legal aid to the persons who are unable to afford the lawyers. The right of hearing cannot be taken away and the sound judicial view would be that reasonable opportunity of being heard must be provided to the accused. Thus, once an appeal or revision is admitted for hearing it should not normally be decided ex parte and if it has been decided ex parte and valid reasons have been shown that there had been failure of justice, inherent powers of High Court should be exercised. This of course, has not to be meant for giving long rope to those persons who either intend to delay the course of justice or to avoid the case from being heard by a particular Bench. While considering the scope of right of hearing due consideration has to be given to Section 304, Cr. P. C. Articles 21 and 39-A 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 due consideration has to be given to Section 304, Cr. P. C. Articles 21 and 39-A of the Constitution, Section 482 Cr. P. C. will have to be considered in the light of the aforesaid provisions. In all civilized and democratic societies right of hearing has been considered to be one of the most fundamental of the 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 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 that the Court has done justice with his case. It is true that all can not go satisfied with the decision of the Court but at least all must have the satisfaction that they have been heard by the Court. " 10. (1999) JIC 348, Badloo v. State, was also relied on in which it was held by this Court that revisionist should not be punished for illness of his counsel. As such, ex parte order should be recalled. 11. In these cases before the Court, arguments could not be advanced by the learned counsel for the revisionist and in case orders are not recalled, the revisionist will have to serve-out the minimum sentence of six months R. I. and will also have to pay fine while they are not at fault. Therefore, interest of justice requires that inherent power should be exercised and ex parte judgment be recalled. 12. Therefore, applications moved in both these cases are allowed and exparte judgments delivered in both these cases are recalled. Let both these revisions be listed for hearing. It would be significant to mention that these revisions are pending since 1984 and have seen many adjournments earlier. Therefore, these cases will not be adjourned on the date of hearing. Appeal allowed. .