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2011 DIGILAW 617 (CAL)

Mrityunjoy Prodhan v. State

2011-05-03

KANCHAN CHAKRABORTY

body2011
JUDGMENT 1. THIS C.R.A.N being C.R.A.N 302 of 2011 is taken out by Mrityunjoy Prodhan and 3 others praying for recalling the order dated 14.01.2011 and 21.01.2011 used by this Court in C. R. R. 1646 of 1995. 2. THE criminal revision being C.R.R 1646 of 1995 was taken up for consideration by this Court on 14.01.2011 in order to dispose of the application once for all in absence of the parties and their respective Counsels. This Court, however, passed the judgment dated 21.01.2011 on merit whereby the order impugned was affirmed and this Court expressed its reluctance to interfere into the order under challenge in revision. Mr. Roy, learned Advocate appearing on behalf of the petitioner contends that on 06.12.2010, Mr. Subir Ganguly, learned Advocate for the petitioner appeared in the Court and prayed for adjournment. The prayer was allowed and the matter again appeared in the list after X-mas vacation and on 14.01.2011, this Court passed the following order. "None appears. Matter is pending since 1995 and unfortunately, neither of the parties nor their learned Advocates has shown any interest to proceed with the matter. There is no case of dragging the matter any further. Accordingly, the matter will be decided or merit. Judgment is reserved". 3. ON 21.01.2011, this Court disposed of the revisional application by passing the judgment finally. No opportunity was provided to the petitioner and the Counsel to make submission in respect of the revisional application, which according to the Mr. Roy is contrary to natural justice and principles of "fair trial" in the Article 21 of the Constitution of India. 4. MR. Roy submits that when this Court found no one on call on 14.01.2011, one amicus curiae ought to have been appointed who could make submission on behalf of the accused/petitioners. He also submits that in view of provisions under Section 362 of the Code of Criminal Procedure, the Court is not empowered to alter or review its judgment when it was signed disposing of the case. But, he submits, in order to uphold natural justice audi alteram partem, the Court can recall its order in order to enable the accused/petitioners to make out their case through their Counsel or amicus curiae appointed for that purpose by the Court. 5. IN support of his submission, Mr. But, he submits, in order to uphold natural justice audi alteram partem, the Court can recall its order in order to enable the accused/petitioners to make out their case through their Counsel or amicus curiae appointed for that purpose by the Court. 5. IN support of his submission, Mr. Roy refers to the decision of this Court in Sri M. S. Tirupathi v.Sri C. H. Rarnakrishna Rao and Anr., reported in (2010)1 CCr LR (Cal) 391 and the decision of the Hon'ble Apex Court in Vishnu Agarwal v. State of U. P. and Anr., an unreported decision 2011 STPL (Web) 171 SC collected from the website of the Hon'ble Apex Court. 6. MR. Kasem Ali Ahmed, learned Advocate appearing on behalf of the opposite party /State submits that the petition is devoid of any merit because this Court when passed the judgment after signing it and disposing of the case finally, it cannot alter or review the same except to correct a clerical or mathematical error. In respect of his contention, MR. Ahmed refers to a decision of the Hon'ble Apex Court in Smt. Sooraj Devi v. Pyare Lal and Anr. reported in AIR 1981 SC 736 . The sole question before this Court whether this Court can entertain such an application praying for recalling the judgment finally passed on 21.01.2011. 7. IN Sooraj Devi v. Pyare Lai and Anr. (supra), Hon'ble Court observed that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. The Hon'ble Apex Court also observed that the words "otherwise provided by this Code or by any other law for the time being in force" refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 and, therefore, the attempt to invoke that power can be of no avail. Section 362 of the Code of Criminal Procedure is reproduced below :- S.362- "Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." 8. ON plain reading of Section 362 of the Code leaves no room of doubt that when a Court has signed its judgment or final order disposing of the case cannot alter or review the same except to correct a clerical or arithmetical error. In the instant case, the petitioners have come out with the application for recalling of the order passed by this Court disposing of the revisional application finally on 21.01.2011. The ground taken by the petitioners is that they were deprived of the right of being heard and, therefore, justice was not given to them. It is clear that the petitioners have not filed this application in order to correct a clerical or arithmetical error. In a decision reported in Md. Sukur Ali v. State of Assam reported in 2011 Cr LJ SC 1690, the Hon'ble Apex Court made the following observations :- "Criminal case, whether trial, appeal revision, should not be decided against accused in absence of his Counsel. Liberty of a person is the most important feature of our Constitution. Article 21 which guarantees protection of life and personal liberty is the most important fundamental right of the fundamental rights guaranteed by the, Constitution. Article 21 can be said to be the 'heart and soul' of the fundamental rights. It is only a lawyer who is conversant with law who can properly defend an accused in a criminal case, Hence, if a criminal case (whether a trial or appeal/revision) is decided against an accused in the absence of a Counsel, there will be violation of Article 21 of the Constitution. As such even if the Counsel for the accused does not appear because of his negligence or deliberately, even then the Court should not decide a criminal case against the accused in the absence of his Counsel since an accused in a criminal case should not suffer for the fault of his Counsel and in such a situation, the Court should appoint another Counsel as amicus curiae to defend the accused". 9. ON perusal of the case record, I find that the order dated 21.01.11 was passed in pursuant of the order dated 14.01.11 in absence of the learned Counsel of the petitioners. It is not that the learned Counsel of the petitioners never appeared in the matter. 9. ON perusal of the case record, I find that the order dated 21.01.11 was passed in pursuant of the order dated 14.01.11 in absence of the learned Counsel of the petitioners. It is not that the learned Counsel of the petitioners never appeared in the matter. The order dated 06.12.2010 shows that one Subir Ganguly, learned Counsel for the petitioner appeared before the Court in this revisional application on behalf of the petitioners and prayed for adjournment. The said prayer was allowed and thereafter the matter came up for hearing on 14.01.11. Since, none appeared on behalf of the parties, this Court proposed to decide the matter on merit reserving pronouncement of the judgment on 21.01.11. 10. IN Vishnu Agarwal v. State of U. P. and Anr. (supra), the Hon'ble Court was pleased to observe that it often happens that some times a case is not noted by the Counsel or his clerk in the cause list and hence, the Counsel does not appear. This is a human mistake and can happen to anyone. Hence, the High Court recalled the order dated 2.9.2003 and directed the case to be listed for fresh hearing. The aforesaid order recalling the order dated 2.9.2003 which has been challenged in the Hon'ble Apex Court was maintained on the ground that Section 362 cannot be considered in a rigid and over-technical, manner to defeat the ends of justice and that the application filed by the petitioners was for recall of the order and not for review or alter of the same. In Shri M. S. Tirupathi v. Shri C. H. Ramakrishna Rao and Anr. (supra), the Hon'ble Single Judge of this Court while recalling its final judgment in a revisional application obseived that in our adversarial system of law, no man can be condemned unheard. It is the reasonable opportunity of hearing in the due process of law is the hallmark of our Criminal Justice System. The Hon'ble Single Judge has taken aid of the decision of the Hon'ble Apex Court in Kalyani Baskar (Mrs.) v. M. S. Sampoornam (Mrs.) reported in (2007)2 SCC 258 where it was held : "Fair trial includes fair and proper opportunities allowed by law to prove her innocence. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. Adducing evidence in support of the defence is a valuable right. Denial of that right means denial of fair trial. It is essential that rules of procedure designed to ensure justice should be scrupulously followed." 11. THE learned Single Judge also taken aid of celebrated decision of the Hon'ble Apex Court in A. R. Antjulay v. R. S. Nayak reported in (1988)2 SCC 602 wherein the Hon'ble Court held - "no man should suffer cause because of the mistake of the Court. No man should suffer a wrong by technical procedure of irregularities. Rules of procedures are the handmaid of justice and not the mistress of the justice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. 12. THE learned Single Judge has also taken aid of the observation of the Hon'ble Apex Court in Zahira Habibullah Sheikh v. State of Gujarat reported in (2006)3 Supreme Court Cases 374 : (2006)1 C Cr LR (SC) 524. THE Hon'ble Court held "Failure to accord fair hearing either to the accused or the prosecution violates even minimum standards of due process of law. It is inherent in the concept of due process of law, that condemnation should be rendered only after the trial in which the hearing is a real one, not sham or a mere farce and pretence. Since the fair hearing requires an opportunity to preserve the process, it may be vitiated and violated by an over hasty stage-managed, tailored and partisan trial." The learned Single Judge also taken into consideration of the Full Bench decision of this Court in Harjeet Singh v. State of West Bengal reported in (2005)2 Cal HN 445 : (2005)1 C Cr LR (Cal) 598. 13. IN Vishnu Agarwal v. State of U. P. and Anr. (supra), the Hon'ble Apex Court opined that Section 362 cannot be considered in a rigid and over technical manner to defeat the ends of jusitce. IN that case before the Hon'ble Apex Court, one criminal revision was disposed of by the Hon'ble Allahabad High Court on 21.01.04. The said criminal revision was listed on 2.9.2003. None appeared on behalf of the revisionist. IN this circumstances, the judgment was passed. IN that case before the Hon'ble Apex Court, one criminal revision was disposed of by the Hon'ble Allahabad High Court on 21.01.04. The said criminal revision was listed on 2.9.2003. None appeared on behalf of the revisionist. IN this circumstances, the judgment was passed. Subsequently, an application was moved for recalling of the order dated 2.9.2003 alleging that the case was showed in the computer list and not in the main list of the High Court and hence the learned Counsel for the revisionist have not noted the case and hence the learned Counsel did not appear. The factual aspect of the case before the Hon'ble Court and that of this case appears to be more or less same. IN the instant case, although the learned Counsel appearing for the petitioners taken adjournment on the previous date failed to participate in the hearing on 14.01.11, this Court taken up the matter suo moto and disposed of the same on 21.01.11 without any intimation to the learned Counsel appearing for the petitioner. The matter did not appear in the list of the Court after 14.01.11 till 19.01.11. It came in the list only on 21.01.11 under the heading "For Judgment". Therefore, it is clear that the learned Counsel appearing for the petitioner simply failed to keep track with the hearing and it was mistake on his part and for that the petitioner cannot be deprived of the opportunity of hearing. 14. IT is true that in ordinary circumstances, this Court would have been obviously precluded from even looking at the order passed in C.R.R 1646 of 1955. IT is also true that justice is to be administered in accordance with law. At the same time, administration of justice is to be rendered keeping the justice above the law. In this application, the petitioners have not prayed for alteration or review of the order passed in the revisional application, but recalling of the same on the ground that they were deprived of being heard in the matter. The petitioners are convicted accused in the trial and their conviction by the learned trial Court was upheld by the learned Appellate Court. They have come up with an application for revision challenging the legality, validity and propriety of the order passed by the learned Appellate Court. They should have been given minimum opportunity of being heard. 15. THIS apart, the Hon'ble Court in Md. They have come up with an application for revision challenging the legality, validity and propriety of the order passed by the learned Appellate Court. They should have been given minimum opportunity of being heard. 15. THIS apart, the Hon'ble Court in Md. Sukur Ali v. State of Assam (supra) made it clear that in the absence of the learned Counsels for whatsoever reasons, the case should not be decided forthwith against the accused, but in such a situation, the Court should appoint a Counsel who is practicing in criminal side as amicus curiae and decide the case alter fixing any date of hearing of the case. In the case in hand, no such amicus curiae was appointed by this Court and heard on behalf of the petitioners. 16. BASING on the principles laid down by the Hon'ble Apex Court in Vishnu Agarwal v. State of U. P. and Anr. (supra), and considering the decision of the Hon'ble Court in Popular Muthiah v. State reported in (2006)7 SCC 296 : (2007)1 C Cr LR (SC) 25 ; Zahira Habibullah Sheikh v. State of Gujarat (supra) and A. R. Antulay v. R. S. Nayak (supra), I share the view of the Hon'ble Single Judge in M. S. Tirupathi (supra). Justice is not only to be done but seen to have been done. When this Court recorded appearance of the learned Counsels of the petitioners on the earlier occasions then it should not have disposed of the revisional application without giving any opportunity to the petitioner of being heard and pass an order suo moto without appointing any amicus curiae. Again, since this petition being a petition for recalling of an order not for alteration or review of the same, it does not fall within the mischief of Section 362 of the Code. Accordingly the application being C.R.A.N 802 of 2011 is allowed. Let the orders dated 14.01.11 and 21.01.11 be recalled. 17. THE revisional application will be heard after giving opportunity of being heard to all the parties afresh. The matter will come up for hearing afresh one week after the summer vacation. L.C.R be called for by the Criminal Section in the meantime. Criminal Section is directed to communicate the order of the learned trial Court without delay. THE learned Counsel for the petitioners may collect plain copy of the order so that they can file before the Id. L.C.R be called for by the Criminal Section in the meantime. Criminal Section is directed to communicate the order of the learned trial Court without delay. THE learned Counsel for the petitioners may collect plain copy of the order so that they can file before the Id. trial Court enabling it to take proper action.