Jalaluddin And Others vs State Of U.P. And Another
2012 Latest Caselaw 2260 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Court No.25
 
Criminal Revision No. 3157 of 2005
 
Jalaluddin and others				----------		   Revisionists
 
Versus
 
State of U.P. and another			----------	    Opposite Parties
 

 
Hon'ble Jayashree Tiwari, J.

(Misc. Recall Application No.84849 of 2012)

Case called out in the revised list.

Heard the learned counsel for the applicants-revisionists on the restoration application.

A perusal of the order sheet shows that despite several opportunities, the learned counsel for the revisionists did not appear on the date fixed for presenting his argument before the court.

The revisional court while taking cognizance of the offence under section 401 and 403 Cr.P.C. had to dispose of the matter on merits and the case cannot be dismissed for default of the counsel for the applicant or the opposite party.

Under the provisions of Section 401 (2) Cr.P.C., it is provided that when a revisional court takes cognizance of a matter, accused as well as the opposite party has to be given an opportunity of being heard either personally or through pleader in his own defence. Thus, opportunity of hearing to the accused or the other person has to be given to make his submissions.

Under Section 403 Cr.P.C. it is provided that no party has a 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.

From perusal of the provisions of section 403 Cr.P.C., it is clear that no party has any right to be heard either personally or through the pleader in their defence.

So far as the contention of the learned counsel for the parties to the effect that they have a right to be heard either personally or through pleader and unless and until the parties are heard, the court ought not to have passed any order is not correct proposition of law, as has been enunciated under section 403 Cr.P.C. Obviously, on the date of hearing, the matter was taken up in the revised list but the learned counsel for the applicants did not take the opportunity of even making a mention for passing over. Thus, the court was left with no option but to proceed with hearing of the case in view of mandatory provisions enunciated in Section 403 Cr.P.C. which strictly provides that no party has a right to be heard either personally or through pleader.

While disposing of the revision, the grounds of revision as mentioned in the memorandum of revision were duly taken into consideration and the revisional court while taking cognizance of the matter has to assess about the propriety and legality of the order passed by the learned lower court and it is for ascertaining this aspect of the order that the court is vested with the revisional power. So far as the contention of the learned counsel that they have not been heard is concerned, they have been provided ample opportunity of hearing but they did not appear nor availed any opportunity, hence the order was passed considering the appropriate application of law by the revisional court.

In the case of Sau, Ranjana Shivaji Rakhpasare, v. Shivaji Bapu Rakhpasare and another, reported in 2004 Cri.L.J.145 the Bombay High Court has vividly discussed the powers of the Court under Sections 397 and 403 Cr.P.C. It has been held that hearing of the revision petition by a Court in the absence of the petitioner or his lawyer is not illegal. In paragraphs 8, 9, 10 and 11 of the aforesaid decision the Court has held as under:

"8. Section 403 of the Criminal Procedure Code, 1973 (hereinafter referred to as Code for convenience) provides:

"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.

9. Section 397 of the Code provides-

"(1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, -recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.

Explanation has been provided to this sub-section which provides that all Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of Section 398."

10. Thus, reading these two provisions together in context with provisions of Section 398, 399, 400 the Court of Sessions, which includes Additional Sessions Judge, also has the power to call for and examine the record of any inferior Court situated within its local limits for the purpose of satisfying itself about its correctness, propriety and legality. This power can be exercised by the Sessions Court including the Additional Sessions Court, if it comes to the notice that there is any gross error of the facts, appreciation of evidence, perverseness or illegality, suo motu. It can do so, because it has been so empowered and it is having jurisdiction to correct the error of appreciation of the evidence, error of recording the evidence or error of law by removing the perverseness in the judgment, order passed by such inferior Court. It can do it also if such incorrectness, impropriety or illegality has been brought to its notice by the aggrieved party by preferring a revision petition. When it is the duty of such revisional Court to correct the error of appreciation of evidence, error in recording the findings, error of illegality in existence in the proceeding conducted by the said inferior Court, judgment and order passed by such inferior Court, such jurisdiction and power cannot be fettered, restricted or shackled by presence or absence of any party or a lawyer appearing for any party involved in such revision proceeding. Revisional Court if it finds it necessary in the interest of justice, may give audience to any party involved in such proceeding. The Revisional Court should normally hear the party against whose interest the order is likely to be passed and such party can be included in the said proceeding or the hearing at any stage of the hearing of such proceeding before the revisional Court. At this juncture, it is important to note that a mischievous party to a litigation may obtain order of suspension or bail from such revisional authority after preferring the revision petition and thereafter may play delaying tactics fathoming its weakness in the cases. Such mischievous party or his lawyer may remain absent for the purpose of playing tactics. Therefore, also the provision may have been made to empower such revisional Court for deciding such revisional proceeding in the absence of parties or lawyer of any party or the lawyer both of them or any other party which has been neglected and impleaded and permitted to put up its case, during the hearing of revisional proceeding. Indirectly the provisions of Chapter XIII of the Code in directing the error of appreciation of evidence, error in recording of the evidence or findings or error of law, as early as possible and to restore the things on a legal track. Therefore, this Court dismisses the submission which has been advanced by Shri Kate appearing for the petitioner that the 6th additional Sessions Judge, Pune was correct, proper and legal....."

In the present case, recall application has been moved on behalf of the learned counsel for the revisionists wherein it is contended that the counsel for the opposite party has been elevated to the bench of this court as such he also could not appear and apprise the court about the facts of the case. In paragraph 5 of the affidavit, it is submitted that at the time when the case was taken up, learned counsel for the revisionists was arguing criminal appeal and as such he could not appear before the Court to press this revision and in absence of the counsel for the revisionists, the revision has been decided and the order of conviction has been upheld vide order dated 14.3.2012. By virtue of averments made in paragraph 4 of the application, the learned counsel for the applicants concedes that on the date and time when the case was taken up in the revised list, he did not appear before the court and had also not taken any steps to make any mention or send slip for passing over the case. As such the grounds shown merely that he was arguing in Court No.46 is not a just and proper ground justifying his absence in court without any intention when the case was called out in the revised list. The grounds taken by the learned counsel for the revisionists do not substantiate the application for recalling the order dated 14.3.2012.

The contention that since the order has been passed by the court without hearing the counsel for the revisionists/applicants as well as opposite party no.2, is also not substantiated in law because by virtue of power flowing from section 403 Cr.P.C. a court of revision taking cognizance of proceedings may proceed and pass order appropriately considering its impropriety, illegality and perversity etc. as such this contention is also not maintainable. So far as this aspect is concerned, the provisions of Section 403 Cr.P.C. provides that no party has a right to be heard either personally or through pleader before any court exercising revisional powers, but the court may, if it thinks fit, hear any party, either personally or by pleader. Thus section 403 confers discretionary power upon the court to allow any party to be heard either personally or by pleader. The word 'hearing' as is enunciated in the section is not mere pleadings of party but includes advancement of arguments to the court in connection with pleadings by the party either himself or by his lawyer.

In the exercise of discretionary power as conferred under section 403, for full and final determination of the matter, I think it expedient that the applicant may also be provided an opportunity of hearing in the interest of justice and the provisions of section 362 are not attracted as the word 'hearing' has actually not been proceeded on behalf of the party or his counsel.

The Hon'ble the Apex Court in the case of Vishnu Agarwal vs. State of U.P. 2011-Laws (SC)-2-83, has held that whether there is an error apparent on the face of the record in a recall petition, the court does not go into the merits of a case in a recall petition but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. Though opportunity of hearing was afforded to the affected party and a revisional order cannot be reviewed as in the review petition the Court considers on merits whether 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. However, in the interest of justice in order to enable the affected party to advance his hearing/arguments the order can be recalled by providing him an opportunity of hearing and hearing the case on merits. In view of the aforesaid decision of the Apex Court, I think it expedient that though adequate opportunity of hearing was given to the applicants but they failed to avail the same, still I consider that in the interest of justice and for the full and final determination of the matter in controversy, the order dated 14.3.2012 be recalled and the applicants be granted an opportunity of hearing provided they do not take unnecessary adjournments and cooperate in the expeditious hearing of the case.

With the above observations, the recall application is allowed.

Dated: 29.5.2012

Sc

Hon'ble Jayashree Tiwari, J.

(Order on the revision petition)

Case called out in the revised list.

Learned counsel for the parties are present.

Learned counsel for the revisionists has preferred this revision against the order of conviction awarding sentence of three months rigorous imprisonment in offences under section 323 and 448 IPC.

Learned counsel for the revisionists submits that the revisionists may be directed to deposit a fine and their sentence of imprisonment may be modified to the period already undergone by them.

In this connection, it is necessary to go through the penal provisions of Sections 323 and 448 IPC which are extracted below:

"323. Punishment for voluntarily causing hurt.- Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which extend to one thousand rupees, or with both.

448. Punishment for house-trespass.- Whoever commits house-trespass shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both."

Section 323 IPC provides for punishment for one year imprisonment or fine one thousand rupees or both whereas section 448 provides for punishment with one year or fine of one thousand rupees or both.

Learned counsel for the revisionists submits that the revisionists had been in jail for about three months and concedes that the revisionists may be sentenced to pay fine in lieu of remaining period of imprisonment

Considering the entirety of circumstances and long drawn litigation pending since the year 2005 as well as the old age of the revisionists, I think it expedient that with the consent of the counsel for the revisionists, the sentence awarded to them is modified and they are directed to undergo rigorous imprisonment for the period already undergone by them in the offences under sections 323 and 448 IPC and they are also directed to pay fine of Rs.1000/- each under sections 323 and 448 IPC and in default of payment of fine the revisionists shall undergo simple imprisonment for a period of one month.

With the aforesaid modification, the revision stands partly allowed.

29.5.2012

sc/-