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2011 DIGILAW 838 (CAL)

Ashok Kumar Lahiri v. State of West Bengal

2011-06-24

SYAMAL KANTI CHAKRABARTI

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JUDGMENT : - Syamal Kanti Chakrabarti, J.: In the instant revisional application the legality and propriety of the order dated 16.02.2009 passed by the learned Chief Judicial Magistrate, Barasat in connection with Rajarhat Police Station Case No. 7 dated 07.01.2004 under Section 306 of the Indian Penal Code was assailed. On 11.11.2010 this Court passed the following order: “ Learned lawyer for the State is present. But learned lawyer for the petitioner is found absent on repeated calls and on 14.09.10 also he was found absent on call. Therefore, let the matter go out of list with liberty to mention after one month. Sd./-(Syamal Kanti Chakrabarti, J.)” 2. Subsequently at the instance of the opposite party the matter appeared in the list of 06.12.2010 for hearing. On that date the learned Advocate for the petitioner was found absent on repeated call but the learned Advocate for the opposite parties and the State were present. Both of them were heard and the revisional application was disposed of by this Court on merit and this Court held that there is no illegality or impropriety in the order of the learned Court below who has rejected the prayer for reinvestigation of the case which is not a mistake of fact. 3. Learned lawyer for the petitioner has subsequently prayed for recalling of the said order which was pased in his absence. Upon his prayer in the cause list of 22.12.2010 the matter appeared under the heading ‘to be mentioned’ under serial no. 2. So the matter was again heard on 22.12.2010. It is submitted by the learned lawyer for the petitioner that the matter went out of list on 11.11.2010 with liberty to mention after one month. But this Court considered the matter on merit on 06.12.2006, i.e., before expiry of one month and the petitioner was not given any opportunity of being heard which will lead to miscarriage of justice. Therefore, the said order should be recalled. Learned lawyer for the opposite parties as well as the State have opposed the move and contended that once the Court has disposed of the revisional application on merit the same cannot be recalled but the aggrieved party may file review application if he so decides. Therefore, the said order should be recalled. Learned lawyer for the opposite parties as well as the State have opposed the move and contended that once the Court has disposed of the revisional application on merit the same cannot be recalled but the aggrieved party may file review application if he so decides. They have referred to and relied upon the principles laid down in 2001 SCC (Cri) 808 (State of Kerala –Vs.- M. M. Manikantan Nair), 2001 SCC (Cri) 112 (Hari Singh Mann –Vs.- Harbhajan Singh Bajwa & Ors.) etc. in support of their contention. In those cases it has been set at rest that the High Court has no jurisdiction to alter or review its own judgement or order except to the extent of correcting any clerical or arithmetic error. Practice of filing Criminal Miscellaneous petition after disposal of main case and issuance of fresh direction in such petition is unwarranted and amounts to abuse of process of Court. Once the matter is finally disposed of, the Court in absence of a specific statutory provision, becomes functous officio in respect of that matter. 4. Learned lawyer for the petitioner on the contrary has drawn my attention to the principles laid down in AIR 1987 Rajasthan 83 (Habu –Vs.- State of Rajasthan), 1989 Cri L J 2382 (Giridharilal & Ors. –Vs.- Pratap Rai Mehta & Anr.), 1977 Cri L J 1520 (Kailash Nath Lahiri – Vs.- M/s. Shantilal Khushaldas & Bros. Pvt. Ltd.), 1985 Cri L J 23 (Deepak Thanwardas Balwani –Vs.- State of Maharashtra & Anr.) etc. to substantiate his claim that the Court has inherent power under Section 482 Cr.P.C. to recall its own order. In 1985 Cri L J 23 it has been held that in its inherent powers as provided in Section 482 Cr.P.C. the High Court can review or revise its judgement if such a judgement is pronounced without giving an opportunity of being heard to a party who is entitled to a hearing and that party is not at fault. For the mistake of the Court a party cannot suffer. In that case the hearing was adjourned to 13th February but in the Roznamcha the adjournment date was inadvertently marked as 8th February. On th February the petitioner and his Counsel were absent and the High Court after going through the record dismissed the writ petition. For the mistake of the Court a party cannot suffer. In that case the hearing was adjourned to 13th February but in the Roznamcha the adjournment date was inadvertently marked as 8th February. On th February the petitioner and his Counsel were absent and the High Court after going through the record dismissed the writ petition. In the instant case the petitioner was given opportunity of hearing on 11.11.2010 while no action was taken. Therefore, the matter went out of list with liberty to mention after one month. In its spirit and the true sense of the term this liberty to mention after one month was intended for the absentee petitioner or his lawyer and not meant for the learned lawyers for the State and the opposite parties who were present. Therefore, when the lawyers for the opposite party/ State mentioned the matter for listing the same upon notice to the other party the Court allowed the prayer and fixed 06.12.2010 for hearing of the revisional application. If learned lawyer for the petitioner intended to include the case for hearing before one month the time limit for one month was binding upon him. Since the said time limit was not binding upon the opposite parties, the Court allowed such prayer and once the case appeared in the list for hearing it is the duty for the learned Counsel for the petitioner to appear and take opportunity of hearing or oppose the move on any ground whatsoever. Section 403 of the Code of Criminal Procedure runs as follows: “403 Option of Court to hear parties. – Save as otherwise expressly provided by this Code no party has any right to be heard either personally or by pleader before any Court exercising its powers of revision; but the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader. ” 5. The exercise of power under Section 482 Cr.P.C. is to be considered in light of the provisions contained in Section 403 Cr.P.C. and in interpreting one Section the Court should not interpret another provision of the Code in such a way that such other provision becomes inoperative. If absence of the petitioner is excused under Section 482 Cr.P.C. in the instant case, the option of Court to hear parties conferred under Section 403 Cr.P.C will be inoperative. If absence of the petitioner is excused under Section 482 Cr.P.C. in the instant case, the option of Court to hear parties conferred under Section 403 Cr.P.C will be inoperative. From the conduct of the petitioner it will appear that on earlier occasion also on 14.09.2010 the opposite party was present but the learned lawyer for the petitioner was absent on repeated call and no cost for bringing LCR by special messenger was deposited within specified time as directed on 20.08.2010 with further opportunity given on 14.09.2010. It also appears from the Office Report dated 10.09.2010 that as the petitioner has not deposited the cost of special messenger the LCR was called for under memo no. 7196 Cr. Dated 03.09.2010 by ordinary post and on receipt of such LCR and on perusal of the same the Court passed the above order and exercised option under Section 403 Cr.P.C. This exercise of option is not fettered by any time limit or discretionary power of the Court under Section 482 Cr.P.C. 6. Therefore, I hold that the disposal of the revisional application on merit in the presence of learned lawyer for the State as well as the opposite party under Section 403 Cr.P.C. cannot be treated as a mistake or clerical omission for which the order dated 06.12.2010 will be recalled by the same revisional Court and the same cannot be treated as failure of justice or denial of justice because the Court has decided the same after due consideration of the submissions made by the learned Advocate present for the State as well as for the opposite party and on perusal of the impugned order and connected documents on record. Therefore, the prayer for recalling the said order is hereby rejected giving liberty to the petitioner to take further steps in accordance with law. 7. Return the Lower Court Record at once. 8. Urgent certified photocopies of this order, if applied for, be supplied to the parties, on compliance of all requisite formalities.