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2016 DIGILAW 565 (MP)

Suryakant v. Chandanmal

2016-07-15

JARAT KUMAR JAIN

body2016
ORDER 1. This petition under section 482 of the Code of Criminal Procedure [for short “the Code”] has been filed for recalling the order dated 4.5.2016 passed by this Court in Miscellaneous Criminal Case No.2360/2016. 2. Brief facts of this case are that non-applicant is facing trial for the offence under section 406 of the IPC on the basis of the complaint filed by the applicant. Non-applicant has filed an application before the Magistrate for permission to visit Thailand. Learned Magistrate dismissed the application and the revision was also dismissed, therefore, non-applicant has filed petition Miscellaneous Criminal Case No.2360/2016 before this Court. The petition was listed on 4.5.2016 for hearing, applicant's counsel was absent, therefore, after hearing non-applicant's counsel this Court has passed the order on the same day. Being aggrieved the applicant has filed this petition for recalling the order and to grant opportunity of hearing. 3. Learned counsel for the applicant submits that on 4.5.2016 the matter was listed at Serial No.63 wherein the counsel for the non-applicant made a special request to hear the case at 2.30 p.m. and applicant's counsel was not informed, therefore, applicant's counsel could not appear and the petition was decided. Thus, the applicant was deprived from his valuable right to make submissions. In such circumstances the order be recalled and petition be reheard. Court can recall its order for this purpose learned counsel placed reliance on the order of this Court in the case of Smt. Meena v. Bhanu Kumar Joshi (Miscellaneous Criminal Case No.3079/2014) decided on 20.4.2015. 4. On the other hand, learned Counsel for the non-applicant vehemently opposes the prayer and submits that while exercising the power under section 482 of the Code criminal Court cannot review its own judgment or order. For this purpose placed reliance on the judgment of Hon'ble apex Court in the case of Smt. Sarojdevi v. Pyarelal, reported in (1981)1 SCC 500 , Hari Singh Mann v. Harbhajan Singh Bajwa and others, reported in AIR 2001 SC 43 and State of Kerla v. M. M. Manikantan Nair, reported in AIR 2001 SC 2145 . 5. After hearing learned Counsel for the parties, I have perused the order. 6. On 4.5.2016 applicant's Counsel Shri A.S.Rathore was absent and he has not filed any objection after granting opportunity, therefore, this Court has passed the order after hearing the non-applicant's Counsel. 7. 5. After hearing learned Counsel for the parties, I have perused the order. 6. On 4.5.2016 applicant's Counsel Shri A.S.Rathore was absent and he has not filed any objection after granting opportunity, therefore, this Court has passed the order after hearing the non-applicant's Counsel. 7. Hon'ble apex Court in the case of Asit Kumar Kar v. State of West Bengal and others, reported in (2009)2 SCC 703 , has made a distinction between recall and review which is as under :- “6. There is a distinction between ... a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party.” 8. Hon'ble apex Court in the case of Vishnu Agarwal v. State of Uttar Pradesh and another, reported in (2011)14 SCC 813 , has upheld the order of High Court recalling the order disposing of the criminal revision in absence of the revisionist when the counsel for revisionist had failed to appear since he had not noted the case. Supreme Court in said matter has rejected the similar argument raised by respondent in respect of limited power of review and bar of section 362 CrPC by holding that section 362 of CrPC cannot be considered in a rigid and over technical manner to defeat the ends of justice. Supreme Court in the matter of Vishnu Agarwal (supra), has held as under : “6. In our opinion, section 362 cannot be considered in a rigid and over technical manner to defeat the ends of justice. As Brahaspati has observed : “Kevalam Shastram Ashritya na kartavyo vinirnayah yuktiheeney vichare tu dharmahaani prajayate.” which means : “The Court should not give its decision based only on the letter of the law. For if the decision is wholly unreasonable, injustice will follow.” Keeping in view the aforesaid judgment there is a distinction between the application for recall and application for review. Thus, the criminal Court can recall its order if it was passed without giving an opportunity of hearing to the concerned party. 9. For if the decision is wholly unreasonable, injustice will follow.” Keeping in view the aforesaid judgment there is a distinction between the application for recall and application for review. Thus, the criminal Court can recall its order if it was passed without giving an opportunity of hearing to the concerned party. 9. This Court in the case of Gulam Ahmed v. Haji Maulana Mohammad Zahoor, reported in 1997(2) JLJ 369 = 1997(2) MPLJ 703 , has held that a petition under section 482 of the CrPC can be filed for recalling the order of the Court on the ground that concerned party was not heard. Such a petition is maintainable and High Court can recall the order in exercise of jurisdiction and section 362 of the CrPC does not impose any prohibition for recalling the order. 10. Learned Counsel for the non-applicant has cited the judgment of Hon'ble apex Court in the case of Soorajdevi (supra), Harisingh Mann and M.M.Manikantan Nair (supra). In these cases Hon'ble apex Court has considered the scope of review and inherent powers of High Court. In the case of Vishnu Agrawal (supra), Hon'ble apex Court has considered the judgment of Harisingh Mann (supra), and held that section 362 cannot be considered in a rigid and over technical manner to defeat the ends of justice. In the present case the applicant has filed this petition for recalling the order and not for review in the order. As the order dated 4.5.2016 was passed without giving an opportunity of hearing to the applicant. 11. With the aforesaid, the petition is allowed. Resultantly the order dated 4.5.2016 passed in Miscellaneous Criminal Case No.2360/2016 is recalled and the petition is restored to its original number. Office is directed to list this petition for hearing as per roster. Thus, the petition is allowed as indicated above. A. S. Rathore for applicant; Vishal Baheti for non-applicant.