Allahabad High Court
Rakesh Kumar Kesharwani Son Of Lalji ... vs State Of U.P. And Smt. Meeta Devi Wife Of ... on 7 September, 2007
Author: Vijay Kumar Verma
Bench: Vijay Kumar Verma
JUDGMENT Vijay Kumar Verma, J.
1. The main question which falls for consideration is whether the order deciding criminal revision on merit in the absence of any or both parties can be recalled.
2. Heard Sri Sunil Kumar, learned Counsel for the applicant,, learned A.G.A. for the State and Ms. Anita Singh, learned Counsel for opposite party No. 2 and perused the record.
3. The facts leading to the filing of this restoration/recall application, in brief, are that in the proceeding under Section 125 Cr.P.C. in case No. 226 of 1995 Smt. Meeta Devi v. Rakesh Kumar Kesharwani maintenance allowance @ Rs. 500/- p.m. from the date of the application was granted vide order dated 04.01.2001 passed by the Family Court, Allahabad. That order was challenged by the applicant-revisionist in this Court in Criminal Revision No. 139 of 2001, which was listed for hearing on 16.07.2007. When revising the list, the case was called out, the counsel of the revisionist and opposite party No. 2 were not present in Court. Hence, this Court after hearing learned A.G.A. and going through the record, dismissed the revision on merit. Now the revisionist has come to this Court and aforesaid application to recall the order dated 16.07.2007 has been moved. It is alleged in the accompanying affidavit of Pappu, Clerk of Sri Sunil Kumar, Advocate, that on the day of hearing of Criminal Revision No. 139 of 2001, Sri Sunil Kumar, counsel for the revisionist was arguing the bail application of the accused Rafiq under Section 498A, 323, 504, I.P.C. and 3/4 Dowry Prohibition Act, P.S. Khurja Nagar, District Bulandshahr in Court No. 48 before the Bench of Hon'ble Mr. Justice A.P. Sahi and hence, the counsel could not appear to argue the revision, which was called in the revised list at about 10.15 a.m. and when the counsel immediately after completing the argument on the bail application appeared in Court No. 25, order in the revision was already passed.
4. It was submitted by learned Counsel for the applicant that although criminal revision No. 139 of 2001 has been decided on merit by this Court vide order dated 16.07.2007, but since the counsel for the revisionist was not heard, hence, this Court in exercise of its power under Section 482 Cr.P.C. can recall that order and restore the revision to its original number. It was also submitted by learned Counsel for applicant that he could not come to Court on 16.07.2007 at the time of argument in revision as he was arguing a bail application in Court No. 48.
5. The learned Counsel for the opposite parties on the other hand vehemently contended that once a revision has been decided on merit after going through the record, there is no provision to restore it. It was further submitted that this Court on going through the lower Court record found no illegality in the impugned order and hence, the order of dismissal dated 16.07.2007 should not be recalled.
6. Having given my thoughtful consideration to the rival submissions made by learned Counsel for the parties, in my view, criminal revision can be restored, even if it has been decided on merit after going through the record, but in the absence of any or both parties. It is true that there is no provision in Cr.P.C. analogous to order 9 Rule 9 & 13 or order 41 Rule 19 & 21 C.P.C., but the Courts have got inherent powers, which can be exercised to recall the order even if passed on merit without hearing the counsel of any or both the parties. The full Bench of this Court in the context of Section 561A Cr.P.C. (corresponding to Section 482) in the case of Raj Narayan and Ors. v. State has held that High Court has power to revoke, review, recall or alter its own earlier decision in criminal revision and rehear the same in cases falling under one or the other of the three conditions mentioned in Section 561A namely:
(1) For the purpose of giving effect to any order passed under the Code of Criminal Procedure. (2) For the purpose of preventing abuse of the process of any Court, and (3) For otherwise securing the ends of justice.
7. Full Bench of Rajasthan High Court in the case of Habu v. State of Rajasthan on a reference made to it has held that "the power of recall is different than the power of altering or reviewing the judgement, and powers under Section 482, can be and should be exercised by the High 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". It is further observed that "while considering the scope of right of hearing due consideration has to be given to Section 304 Cr.P.C. Articles 21 and 39A of the Constitution. Section 482 Cr.P.C. will have to be considered in the light of the aforesaid provisions. In all civilized and democratic societies right of hearing has been considered to be one of the most fundamental of the fundamental rights flowing from principles of natural justice and principles enshrined in well known maxim audi ateram partem".
8. In the case of Makkapati Nagaswara Sastri v. S.S. Satyanarayan , criminal revision was decided without hearing the respondent. The High Court refused to recall the exparte order holding that the respondent is not entitled to be heard as of right in revision. The Hon'ble Apex Court while setting-aside the order of High Court held that the view taken by the High Court is manifestly contrary to the audi ateram partem rule of natural justice, which was applicable to the proceedings before the High Court. After setting-aside the order of High Court deciding the revision without hearing the counsel of respondent, the case was sent back to the High Court with the direction to decide the revision afresh after hearing both the parties.
9. This Court in the case of Badloo v. State 1999 (39) ACC 889 has held that the Court is empowered to recall the order of dismissal of criminal revision without hearing the revisionist or his counsel under inherent jurisdiction to secure the ends of justice. Similar view was taken by this Court in the case of Smt. Manju Singh v. Tara Chandra and Anr. 2005 (52) ACC 372.
10. Therefore, keeping in view the observations made in above mentioned cases, with a view to secure the ends of justice, exercising the power under Section 482 Cr.P.C., order dated 16.07.2007 passed in criminal revision No. 139 of 2001 may be recalled, as the ground for non-appearance of the revisionist's counsel to proceed with the case at the time of hearing of revision is sufficient and the counsel did not wilfully avoid to appear in Court at the time of hearing as is evident from the affidavit of his Clerk.
11. Before parting with this order, I would like to add that the power to restore criminal revision, which has been decided on merit or otherwise in absence of any party can be exercised by the Court of Session also. The Hon'ble Supreme Court in the case of Minu Kumari and Anr. v. State of Bihar and Ors. 2006 (55) ACC 541 has held that all Courts whether civil or criminal, possess in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right or to undo wrong in the course of administration of justice on the principle, "quando lex aliquid alicui conceditconcedere videtur et id sine quo res ipsae esse non potest (when the law gives a person anything it gives him that without which it cannot exist). It is also observed by Hon'ble apex Court that it is neither possible nor desirable to lay down any inflexible rule, which would govern the exercise of inherent jurisdiction and no legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from expressed provisions of law, which are necessary for proper discharge of functions and duties imposed upon them by law. Therefore, having regard to the aforesaid observations made by Hon'ble Apex Court, the order deciding criminal revision on merit in absence of any party or dismissing it for default or non-prosecution can be recalled by the Court of Session also in appropriate cases on the sufficient cause being shown for non-appearance of the party or its counsel at the time of hearing of revision.
12. 12.It was submitted by learned Counsel for opposite party No. 2 that due to the interim order passed by this Court on 17.01.2001, no maintenance allowance has been paid by the revisionist to his wife Smt. Meeta Devi (opposite party No. 2 herein), who is starving, as she has no means to earn her livelihood and if the order dated 16.07.2007 is recalled, then the amount of maintenance should be got deposited by the revisionist. This submission has got force. In my view, fifty per cent of the amount of arrears of maintenance allowance upto August, 2007 should be paid by the revisionist to his wife as a condition to recall the order dated 16.07.2007 and in future, he should pay the maintenance allowance as per impugned order of the Family Court.
13. Consequently, the restoration/recall application is hereby allowed subject to deposit of fifty per cent amount of the arrears of maintenance allowance upto August, 2007 in Family Court, Allahabad, which shall be paid to opposite party No. 2.
14. On deposit of the amount as aforesaid within a period of two months from today, the order dated 16.07.2007 will stand recalled restoring criminal revision No. 139 of 2001 to its original number.
15. On receipt of compliance report from the Family Court, Allahabad regarding deposit of the amount of arrears as mentioned above, the revision will be listed for final hearing before the appropriate Bench.
16. Office to send a copy of this order to Family Court, Allahabad for necessary action.