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2017 DIGILAW 1493 (GUJ)

Deepakbhai Tulsidas Khatwani v. State of Gujarat

2017-09-01

A.Y.KOGJE

body2017
ORDER : A.Y. KOGJE, J. Rule. Learned APP waives service of rule on behalf of the respondent State. 2. This application is filed for recall of order dated 17.07.2017 passed in Criminal Misc. Application No. 32439 of 2016. By the order under Recall, the application filed on behalf of the applicant for cancellation of bail granted to the respondent herein in connection with CR No. I-124/2016 registered with Adipur Police Station, for offences under Sections 365, 323, 504, 506(2) and 114 of the Indian Penal Code, was rejected. 3. Learned advocate for the applicant submitted that the main application was proceeded in his absence and as such, learned advocate for the applicant had not attended the Court as he had filed a sick note. In paragraph 3 of the application, it is averred that the advocate for the applicant was actually sick and was unable to attend the Court proceeding and had filed sick note through his Clerk, though sick note was not reflected on the board by some technical mistake. 4. Learned advocate for the applicant has produced the case details print out from the official website of the High Court to substantiate his stand that the sick note was filed, but was not reflected. 5. It is submitted that it is only on account of this learned advocate for the applicant was prevented from conducting the matter and the order for which the application for recall is filed and had been passed. 6. Learned advocate for the applicant referred to and relied upon the judgment of the Apex Court State of Punjab v. Davinder Pal Singh Bhullar reported in (2011) 14 SCC 770 , more particularly Paragraph 46 and submitted that the Apex Court has carved out the circumstances under which recall of order is permissible despite Section 362 of Code of Criminal Procedure, another judgment referred by the learned advocate for the applicant in case of Vishnu Agarwal v. State of Uttar Pradesh (2011) 14 SCC 813 and unreported judgment passed in Criminal Misc. Application (Recall) No. 17692 of 2017 dated 21.07.2017 by which under similar set of recall of order was permitted. 7. Application (Recall) No. 17692 of 2017 dated 21.07.2017 by which under similar set of recall of order was permitted. 7. As against this learned advocate for the respondent No. 2 has vehemently objected to recall of the order on the ground that there is a clear bar under Section 362 of Code of Criminal Procedure as the Court after delivering the order could be rendered functus officio and would have no power to review, alter or recall its own order. 8. Learned advocate for the respondent No. 2 cited following judgments and submitted that the present application which is filed under Section 482 of Code of Criminal Procedure would not be maintainable in view of Section 362 of Code of Criminal Procedure. 9. Learned advocate for the respondent No. 2 drew attention of this Court in the judgment reported in (i) Smt. Sooraj Devi v. Pyare Lal, (1981) 1 SCC 500 , ‘Paragraph-5’ (ii) Hari Singh Mann v. Harbhajan Singh Bajwa, (2001) 1 SCC 169 , ‘Paragraphs-8, 9 & 10’. (iii) Mohd. Yaseen v. State of U.P, (2007) 7 SCC 49 , 10. The judgment of the Apex Court cited by the learned advocate for the respondent No. 2 or in the facts of the respective cases, wherein the Supreme Court has not permitted review of the judgments of the Criminal Court where the cases have been decided on merits and the review of the orders were also sought on merits. 11. As discussed in the judgment of the Apex Court in the case of Davinder Pal Singh Bhullar (Supra) an alteration and review of a judgment would stands on a different footing than recall of the order. Paragraph 46 of the judgment Davinder Pal Singh Bhullar (Supra), reads as under:— “If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 CrPC would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide: Chitawan v. Mahbood Ilahi, Deepak Thanwardsas Balwani v. State of Maharashtra, Habu v. State of Rajsthan, Swarth Mahto v. Dharmdeo Narain Singh, Makkapti Nagaswara Sastri v. S.S Satyanarayan, Asit Kumar Kar v. State of W.B and Vishnua Agarwal v. Sate of U.P) 12. It provides that an eventuality, that where the judgment is manifestly contrary to the audi alteram partem rule of natural justice, the provisions of Section 366 Code of Criminal Procedure would not operate. 13. Considering the facts of the present case, more particularly, when for the reason of the sickness of an advocate, the advocate was unable to attend the hearing before this Court and the Court has proceeded finally to disposed of the matter even on merits, as the sick note was not reflected on the Board and that the matter was called out twice. The case is made out for recall of the order and hence, the order dated 17.07.2017 passed in Criminal Misc. Application No. 32439 of 2016 is hereby recalled. 14. The main matter is now restored for hearing afresh. Whereas the learned advocate for the applicant undertakes that on the next date of hearing fixed by this Court, the main matter shall be proceeded on 5th September 2017 from his side. This petition is allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.