ORDER : S.S. Sundar, J. 1. These Petitions coming on for hearing on this day and upon the perusing the affidavits and petitions filed, and upon hearing the arguments of Mr. V. Padmanabhan, Senior Counsel for Mr. S.B. Viswanathan, Advocate for the petitioner, (in both cases) and of Mr. R. Prabhu Ramachandran, Government Advocate (Criminal Side) on behalf of the Respondents, this Court made the following order: Both the petitions are filed to recall the final order passed by this Court in Crl.O.P.(MD) Nos. 17080 and 17081 of 2016, dated 27.03.2017 mainly on the ground that order was passed on merits without hearing the petitioners in the respective cases and without giving an opportunity to the counsel appearing for the petitioners. Office raised a question regarding maintainability of these Criminal Miscellaneous Petitions by citing Section 362 of Cr.P.C. This Court, hence, directed the Registry to post the matter before the Court for maintainability. 2. When the matter was posted for maintainability, this Court heard Mr. V. Padmanabhan, learned Senior Counsel, elaborately and directed the Additional Public Prosecutor to file a counter affidavit, since the question of maintainability rests on certain factual assertions of the petitioners that the Hon'ble Judge while reserving orders did not hear the learned counsel for the petitioners. Since the said contention is to be verified on facts, this Court directed the learned Additional Public Prosecutor who appeared on 07.02.2017 to file a counter. Since the learned Additional Public Prosecutor who appeared probably did not remember what had happened on that day, no counter affidavit has been filed. However, Mr. K.S. Duraipandian, who is also the Additional Public Prosecutor of this Bench filed a report. In paragraph 4 of the report, the learned Additional Public Prosecutor stated that he contacted the then Government Advocate (Criminal side) Mr. A.P. Balasubramani and Mr. Anbarasu who were looking after the criminal matters before the concerned Court at the particular point of time and that the report is based on their statements. It is stated that the said counsels have given statement to the learned Additional Public Prosecutor that all the petitioners/accused were represented by their respective counsels before the Hon'ble Court and due to efflux of time and the fact that they had to attend more than 500 cases in a given day, they could not recollect as to whether a Senior Counsel represented the Advocate on record Mr. S.B. Viswanathan on that particular day. Hence, this Court find that the report of the learned Additional Public Prosecutor is not specific as to the appearance of the learned Senior Counsel or about hearing the counsel on record appearing for the petitioners in the main Criminal Original Petitions before the case was reserved for orders. However, from the orders passed by this Court, the learned Additional Public Prosecutor has given the dates. The events as recorded by Court from the docket entries in the main Criminal Original Petitions are extracted below for convenience:- Sl. No. Date Docket orders passed by Hon’ble Court 1. 08.12.2016 At the request of the learned Counsel for the petitioner, post the matter on 20.12.2016 under the caption “for final hearing: …. (GCJ) 2. 22.12.2016 Post the case under the caption of final hearing on 17.01.2017…. (GCJ) 3. 18.01.2017 At the request of the learned Counsel for petitioner, post the case on 20.01.2017 under the same caption at 2.15 PM …. (GCJ) 4. 20.01.2017 No representation for the petitioner- GA Jayakumar present. Post on 30.01.2017 (GCJ) 5. 30.01.2017 Post the case on 01.02.2017 at 2.15 pm (GCJ) 6. 01.02.2017 Post the case on 07.02.2017 under the caption for disposal 7. 07.02.2017 Orders reserved 3. It is to be noted that in the CAV form that was prepared by the Court Officer, it is seen that on 07.02.2017 one Mr. M. Vaikkam Karunanidhi has been shown as the learned counsel for Mr. S.B. Viswanathan. It is also noted that Mr. V. Padmanabhan, learned Senior Counsel has appeared for Mr. S.B. Viswanathan, however, the date of appearance as against Mr. V. Padmanabhan is stated as 07.11.2016. 4. In the petition to recall, the petitioners have stated that no opportunity was given to the learned counsel for the petitioners though he has engaged Senior Counsel from Chennai to argue the case. It is further stated that the docket entries lacks any information as to whether the Court heard the argument of the counsel for the petitioners before reserving for judgment. 5. A specific reference was made to the order of this Court dated 27.03.2017 where the appearance of Mr. V. Padmanabhan, learned Senior Counsel for Mr. S.B. Viswanathan is noted by the Hon'ble Judge. 5. A specific reference was made to the order of this Court dated 27.03.2017 where the appearance of Mr. V. Padmanabhan, learned Senior Counsel for Mr. S.B. Viswanathan is noted by the Hon'ble Judge. Again paragraph 3 of the order starts with reference to the appearance of the learned counsel for the petitioners in the following lines: "The learned Counsel appearing for the petitioners would submit that........". Again in paragraph 4, the appearance of the learned counsel for the petitioners, it is sated as follows: "The learned counsel appearing for the petitioners in support of his contentions has relied upon the following decisions." In paragraph 4, about 56 judgments have been referred to as the judgments relied upon by the learned counsel appearing for the petitioners. Again in paragraph 8 of the order the Hon'ble Judge has recorded that both sides were heard. After referring to the above statements recorded by the Hon'ble Judge in the order dated 27.03.2017, the learned Senior Counsel submitted that he did not appear in this case on 07.11.2016. The learned Senior Counsel further pointed out that on 07.02.2017, the docket entry is simply "orders reserved". If really his arguments were heard on 07.02.2017 or on the earlier occasion when the matter was posted for disposal, the Hon'ble Judge would have recorded in the docket sheet as "heard the arguments of the learned counsel for the petitioners and the respondents". The learned Senior Counsel has pointed out that the learned counsel on record has filed an affidavit dated 04.09.2017 reporting that the final order in the main criminal original petitions was passed without giving an opportunity to the petitioners to argue the case. He narrated events that had happened in this case corresponding to the docket entries referred to earlier. It is stated that on 07.11.2016 Mr. V. Padmanabhan, learned Senior Counsel argued the case in detail and filed written arguments along with several judgments he relied upon before the Hon'ble Mr. Justice M.K.KALYANASUNDARAM. It is stated in the affidavit that on 08.12.2016, 22.12.2016 and 18.01.2017 he requested only time to make arrangement to bring the learned Senior Counsel Mr. V. Padmanabhan after the matter was posted before the Hon'ble Judge who passed orders on 27.03.2017. It is further stated that on 20.01.2017 he was held up in another Court when the case was called and that therefore, the matter was adjourned to 30.01.2017. V. Padmanabhan after the matter was posted before the Hon'ble Judge who passed orders on 27.03.2017. It is further stated that on 20.01.2017 he was held up in another Court when the case was called and that therefore, the matter was adjourned to 30.01.2017. Since he could not make arrangements for the appearance of learned Senior Counsel Mr. V. Padmanabhan on 30.01.2017 and 01.02.2017 he took adjournment. It is further stated that from 04.02.2017 due to illness he did not attend Court and therefore, he did not appear on 07.02.2017 when the Hon'ble Judge reserved orders. Having regard to the factual scenario, the learned Senior Counsel submitted that the order dated 27.03.2017 is liable to be recalled as no opportunity was given to the petitioners and the Hon'ble Judge passed an order on merits without hearing the petitioners. He relied upon several judgements on principles to sustain these petitions. 6. In the case of Vishnu Agarwal v. State of U.P. reported in 2011-2-L.W. (Crl.) 200 : (2011) 14 SCC 813 the Hon'ble Supreme Court has held that Section 362 Cr.P.C. cannot be considered in a rigid and over-technical manner to defeat the ends of justice and that an application to recall order is maintainable under Section 482 of Cr.P.C. where order is pronounced on merits without hearing the counsel for revision petitioners before High Court. After following the judgment of the Hon'ble Supreme Court in Asit Kumar Kar v. State of West Bengal and others reported in (2009) 2 SCC 703 , it has been held that a petition to recall the order is not a petition for review and hence, maintainable. Paragraphs 6 and 7 of the judgment of Hon'ble Supreme Court reported in (2009) (2) SCC 703 is extracted below for convenience. "6. There is a distinction between a petition under Article 32, 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. 7. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association v. Raghabendra Singh & Ors. 7. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association v. Raghabendra Singh & Ors. [ 2007 (11) SCC 374 ] cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences. In these circumstances, we recall the directions in paragraph 40 of the aforesaid judgment. However, if anybody has a grievance against the grant of licences or in the policy of the State Government, he will be at liberty to challenge it in appropriate proceedings before the appropriate Court. The writ petitions are disposed of with these directions." 7. The learned Senior Counsel further relied upon a judgment of Rajasthan High Court in the case of Habu v. State reported in AIR 1987 RAJASTHAN 83. The Full Bench of Rajasthan High Court has framed the question as follows: "Whether the judgment given in the absence of the appellant or his counsel but the facts decided on merits, can be recalled by the Court in its inherent powers under Section 482 Cr.P.C." 8. After elaborate discussion about the scope and object of several provisions of Cr.P.C. including Section 362 and 482 Cr.P.C. the Hon'ble Full Bench of Rajasthan High Court has answered the reference in affirmative. The conclusion reached by the Full Bench and the reasoning of the Full Bench can be seen from paragraphs 44 and 45 of the judgments which read as under: "44. Keeping the well known principles of interpretation of statute in our mind we deem it proper to observe that while considering the scope of Section 482 Cr. P.C. we must remember that inherent powers which are always inherent in a court are if (not) specifically provided by the legislature, all 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 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 cannot go satisfied with the decision of the Court but at least all must have the satisfaction that they have been heard by the Court. The litigant who comes from different corners of the State cannot be expected to be around the Court when his case is called for hearing unless he has a competent and vigilant lawyer who informs him of approximate date of hearing of a case or the litigant himself is vigilant enough to keep in touch with his case, but most of the people who are illiterate and come to the Court have to bank on the information they receive, the treatment they gel and the advice which is tendered to them by their counsel. It can also not be expected that each and very litigant will have the lawyers of the same competence which the others can afford, but at the same time it is always expected from the learned counsel that they would do their best in the best interest of their client. Equally is the responsibility of the Registry in being cautious about notifying the cases properly when they come up for hearing. What we mean to say is that a litigant is always helpless and is at the mercy of the others, whoever makes a mistake ultimate sufferer is he. If the case is not properly shown in the daily cause-list, i.e. either the number is wrong or the title is not properly given or the name of the counsel representing not shown the case will go unattended and if the lawyer misses the case despite the fact that it is properly shown or is busy elsewhere and is unable to attend the Court again sufferer is the litigant, it is for the Courts to see that the record is properly looked into with the assistance of the counsel before the case is finally decided. At the same time Court must ensure that the absence of the counsel is neither deliberate nor meant to avoid the Bench, nor the litigant or his counsel has tried to over reach the Courts. The Courts in such case must not hesitate in proceeding against such persons. 45. Their Lordships of the Supreme Court in a case of Bhagwant Singh v. Commr. of Police, AIR 1985 SC 1285 even while giving interpretation to Section 173(2)(ii) Cr. RC. have laid great emphasis on the right of hearing and held as under: "in a case where the Magistrate to whom a report is forwarded under Sub-section (2) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report." What we intend to emphasize is that right of hearing is very important right of which no litigant should be deprived. Thus on the consideration of all the cases cited and on the two cases quoted by learned single Judge, we answer the reference as under: (i) That the power of re-call is different than the power of altering or reviewing the judgment. (ii) That powers under Section 482 Cr. RC. can be and should be exercised by this 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 Cr.P.C." 9. The learned Senior Counsel further submitted that the plight of litigants has to be dealt with in adherence to the procedural safeguards and passing adverse order without hearing the party is against the principles of natural justice and basic canon of jurisprudence It is further contended that an opportunity to the petitioner to put forth his case cannot be dispensed with as denial of such opportunity will result in losing faith in the judiciary and justice delivery system. Since act of Court should not prejudice any one it was contended that great injustice has been done to the petitioners in this case. Since act of Court should not prejudice any one it was contended that great injustice has been done to the petitioners in this case. Referring to the principle that justice should not only be done but it must be seems to be done, the learned Senior Counsel further submitted that it is a case in which the Court should come to the rescue of the petitioners for the cause of justice. 10. As against the lengthy arguments advanced by the learned Senior Counsel appearing for the petitioners, the learned Government Advocate (Crl. side) relying upon the status report of the learned Additional Public Prosecutor submitted that the petitioners in all the cases were heard before orders were reserved. It is further pointed out that on the last three hearings, the docket entries would show that the counsels appearing for the petitioners had adopted delaying tactics and that therefore, this Court has no other option but to dispose of the case on merits. The learned Government Advocate (Crl. Side) further pointed out that the points argued by the learned Senior Counsel on merits were considered by this Court in the order dated 27.03.2017 and that final order considering the case on merits cannot be recalled simply because the counsel for petitioners was not heard on the particular date when the Hon'ble Judge reserved for orders. It is his contention that sufficient opportunity was given to the learned counsel appearing for the petitioners and therefore, there is no injustice. 11. It is to be noted that the learned Government Advocate (Crl. side) has not addressed his arguments on the legal issues as to the maintainability of a petition to recall the orders which was passed on merits either under Section 482 of Cr.P.C. or under Section 362 Cr.P.C. This Court, considering the facts and circumstances of the case and the submissions made by the learned Senior Counsel appearing for the petitioners, is of the view that the petitioners in the respective Criminal Original Petitions were not given an opportunity to argue on merits nor heard before the order was passed on merits. As against the assertion by the learned Senior Counsel for the petitioners and the statements of the learned Senior Counsel before this Court, this Court has no other material to contradict or refuse to accept the contention of the petitioners that the learned counsel for the petitioners was not heard on merits either on 07.02.2017 or on 30.01.2017 or on 01.02.2017. When a Counsel for petitioner does not appear normally this Court either post the matter for dismissal or for dismiss the case for non-prosecution. If an order is passed on merits without hearing the learned counsel for the petitioners, the litigant loses an opportunity of hearing and this situation is neither contemplated in any rule or supported by precedent. Even when the learned counsel appearing for the petitioner report no instruction, the Hon'ble Supreme Court on number of occasions has made the position clear that the Court is expected to issue notice to the parties concerned before dismissing the case on merits. It is to be noted that it is an obligation of this Court to correct errors if it result in injustice. The Hon'ble Supreme Court has time and again reiterated the power of Court to correct any error or set right any injustice to gain public confidence to protect the system. The existence of justice delivery system depends upon the public opinion and the fairness in resolving the dispute adopted by the Court. In that view of the matter, this Court has no hesitation to recall the order dated 27.03.2017 in Crl.O.P.(MD) Nos. 17080 and 17081 of 2016. The Criminal Miscellaneous Petitions are ordered accordingly. Having regard to the fact that the matter is pending for quite sometime and has been heard by different Benches on different occasions, Registry is directed to post the matter before regular Court for final disposal.