Madhya Pradesh High Court

Diwakar Prasad Jogi vs The State Of Madhya Pradesh on 9 May, 2024

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        IN THE HIGH COURT OF MADHYA PRADESH
                     AT JABALPUR

                                       BEFORE

                  HON'BLE SHRI JUSTICE VIVEK JAIN


                   CRIMINAL APPEAL No. 1477 of 2022


BETWEEN :-

DIWAKAR PRASAD JOGI S/O LATE SHRI RAM
RATAN JOGI, AGED ABOUT 47 YEARS,
OCCUPATION:    LABOUR     R/O   GRAM
SHAHPUR    POLICE   THANA     JAITPUR
DISTRICT SHAHDOL (MADHYA PRADESH)
                                                             ....APPELLANT

(NONE)


AND


THE STATE OF MADHYA PRADESH
THROUGH AARKSHI KENDRA JAITPUR
DISTRICT SHAHDOL M.P. (MADHYA
PRADESH)
                                                             ....RESPONDENT

(BY SHRI ANOOP SONKAR - PANEL LAWYER)
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        Reserved on                           :       18/04/2024
        Pronounced on                         :       09/05/2024
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       This appeal having been heard and reserved for judgment/order,
coming on for pronouncement this day, this Court passed the following:
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                                  ORDER

IA No. 26474/2023 has been filed for recalling of order dated 20.10.2023 whereby this appeal against conviction filed by the accused- appellant has been dismissed for want of prosecution. Due to change of headquarter of the same Hon'ble Judge, this application has been placed before this Bench.

2. The appellant has been convicted for offences under sections 420 and 471 IPC and sentenced to 3 years R.I. each for both the offences with fine and default stipulation vide judgment of trial court dated 29.1.2022.

3. The appeal has been dismissed for want of prosecution noting that the appellant is not in Jail and the appeal has not been admitted so far. There is no order of admission of appeal and grant of benefit of suspension of sentence available on record in the physical file. However, an order dated 05.8.2022 is available in the digital order sheets uploaded on the website of the Court as per which it is evident that the appeal has been admitted for regular final hearing and the sentence has been suspended as well on the same date. This order dated 05.8.2022 is not available in the physical file The order dated 05.8.2022 as available in the digital order sheets reads as under :-

"Dated: 05/08/2022 Shri Narendra Nikhare, counsel for the appellant. Shri Ajay Shukla, Panel Lawyer for the State. Heard on admission.

The appeal seems to be arguable, hence admitted for hearing. I.A. No.2455/2022 is taken up.

This is an application under Section 389 (1) CrPC for suspension of custodial sentence awarded to the

appellant/applicant Diwakar Prasad Jogi who stands convicted under Section 420 and 471 of IPC and sentenced to undergo R.I. for 3-3 years and to pay fine of Rs.3,000/- for each of the offences with default stipulation. The Trial Court had itself suspended the sentence of the appellant till 29.3.2022 which has further been extended by this Court on the dates on which the case has been listed. Having regard to the nature of allegation made against the appellant and other facts and circumstances of the case without commenting on merits of the case, I.A. No.2455/2022 is allowed.

It is directed that on deposit of entire fine amount (if not already deposited) and on furnishing a personal bond in the sum of Rs.25,000/- (Rupees Twenty Five Thousand) with one solvent surety in the like amount to the satisfaction of the trial Court for his appearance before the trial Court on 22.11.2022 and on all subsequent dates as may be fixed by the trial Court in that regard, the execution of substantial jail sentence imposed on appellant Diwakar Prasad Jogi shall remain suspended, till final disposal of this appeal. In the event of non-appearance of the appellant/applicant, the trial Court shall be at liberty to take coercive action against him to secure his presence under intimation to this Court. Let the appeal be listed for final hearing in due course.

(VIRENDER SINGH) JUDGE

4. Thus, it appears that this Court has considered the matter on basis of material as was available due to non-availability of physical order sheet dated 05.8.2022 in record. The appellant is seeking restoration of the appeal to be heard on merits as it is appeal against conviction and jail sentence.

5. Section 362 Cr.P.C. bars review but the considerations to deal with applications seeking recall of orders in cases where the case has been decided without hearing the accused are different. It has been held by the

Hon'ble Apex Court in the case of Parasuram Patel & Another Vs. State of Orissa reported in 1994 (4) SCC 664, that Criminal Appeal against conviction has to be decided only after considering the record, and it cannot be dismissed in default of appearance. The following has been held therein :-

"Special leave granted. In the present case, the High Court dismissed the criminal appeal of the appellants only on the ground that there was default in appearance of the appellants and their counsel. It is now well settled that no criminal appeal can be dismissed on the ground of default in appearance. The Court has to go through the record of the case even in the absence of the appellants or their counsel and decide the matter on merit. Inasmuch as the High Court dismissed the appeal without going into the merit of the matter, the impugned order dated 7-4-1992 is hereby set aside and the matter is remanded to the High Court for decision on merit. In the circumstances of the case, the High Court should dispose of the matter within two months of the receipt of this order. The appeal is allowed accordingly. "

6. In the case of Vishnu Agarwal Vs. State of Uttar Pradesh & Others reported in 2011 (14) SCC 813, the Hon'ble Apex Court was considering challenge to an order of recall passed by the High Court which had restored a Criminal Revision dismissed in default of appearance. While upholding the order of recall and restoration of the Criminal Revision, it has been held as under :-

"5. The learned counsel for the appellant Mr Manoj Swarup submitted that in view of the aforesaid decision, the High Court erred in law in recalling the order dated 2-9-2003. We regret we cannot agree.

6. In our opinion, Section 362 cannot be considered in a rigid and overtechnical 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."

7. Apart from the above, we are of the opinion that the application filed by the respondent was an application for recall of the order dated 2-9- 2003 and not for review. In Asit Kumar Kar v. State of W.B. [(2009) 2 SCC 703 : (2009) 1 SCC (L&S) 541 : (2009) 1 SCC (Cri) 851 : (2009) 1 SCR 469] this Court made a distinction between recall and review which is as under: (SCC p. 705, paras 6-7) "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.

7. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Excise Licensees' Assn. v. Raghabendra Singh [(2007) 11 SCC 374] cancelling certain licences was passed without giving an opportunity of hearing to the persons who had been granted licences."

8. Hence, we see no error in the impugned order passed by the High Court. The appeal fails and is accordingly dismissed. "

7. Reference may also be made to a Full Bench judgment of the High Court of Rajasthan, in the case of Habu Vs. State of Rajasthan, reported in AIR 1987 Rajasthan 83, wherein the Full Bench of the Rajasthan High Court has held that the right of hearing is very important right of which no litigant should be deprived of. While answering the reference, it was held that power of re-call is different than the power of altering or reviewing the judgment, and that powers under S. 482 Cr. P.C. can be and should be exercised by High Court for re-calling the judgment in case the hearing is not given to the accused.

8. In the present case, notwithstanding the fact whether the appellant was given benefit of suspension of sentence or not, and of the fact whether the appeal was admitted or not, the appeal against conviction has been dismissed in default of appearance. The accused is seeking decision on merits by restoring the criminal appeal.

9. In view of the law laid down in the cases of Parasuram Patel & Another, Vishnu Agarwal & Habu (supra), this Court is of the opinion that the appeal should be restored for hearing on merits. Accordingly, by recalling the order dated 20.10.2023, this appeal is restored for hearing on merits.

10. The Principal Registrar (Judicial) is directed to cause an enquiry in the matter of non-availability of order of suspension of sentence (dated 05.8.2022) in physical file but being available in digital order sheets as uploaded on the website of this Court. The case may be listed as per listing policy for appropriate purpose after verification of existence of order dated 05.8.2022.