PUSHPANGATHAN Vs. STATE OF KERALA AND ORS.

JUDGEMENT

(1.) This Court disposed of the above said Criminal Miscellaneous Case, filed under Section 482 of the Code of Criminal Procedure (in short, "Cr.P.C.") by order dated 13/08/2014 quashing Annexure-A3 private complaint pending before the learned Magistrate. The complainant, who was shown as the 2nd respondent in the Crl. M.C., has preferred this application, again under Section 482 Cr.P.C. requesting this Court to recall the order in the case on the ground that the name of the counsel appearing for the complainant was not shown in the cause list and so, he could not present his version of the case. When the complainant came to know that the Crl. M.C. had been allowed quashing his complaint, he made enquiries, which revealed that the case number was wrongly mentioned in the vakalath submitted by the lawyer on behalf of the complainant and that was the reason why his name was not mentioned in the cause list. The petitioner (complainant) would contend that quashment of complaint resulted in injustice to him. It is also submitted that the sublime principle of natural justice, viz., the right to be heard has been violated and for that reason, this Court may recall the order quashing the complaint. The legal question arising for determination is whether the prohibition created by Section 362 Cr.P.C. that no Court shall alter or review the judgment or final order disposing of a case after it has been signed, except for correcting a clerical or arithmetical error, will be violated if the request of the complainant is allowed under Section 482 Cr.P.C. An ancillary question that may arise is whether under all circumstances the powers of this Court under Section 482 Cr.P.C. are controlled by Section 362 Cr.P.C.

(2.) Bare minimum facts are thus: The complainant preferred a complaint before learned Magistrate alleging offences against the accused persons therein punishable under Sections 323, 324, 326, 346, 454, 308, 294(b) and 506(ii) of I.P.C. Learned Magistrate took cognizance of the offences and that was challenged by the 5th accused before this Court in the Crl. M.C. The learned counsel for the 5th accused and the learned Public Prosecutor were heard in that matter. The present petitioner, though arrayed as 2nd respondent, was not represented at the time of hearing. It is the submission of the petitioner that name of the counsel engaged by him was not shown in the cause title. On verification, it was revealed that the case number shown in the vakalath was Crl. M.C. No. 1612 of 2008 instead of Crl. M.C. No. 1612 of 2009. Advocate clerk, attached to the office of the advocate engaged by the complainant, has sworn to an affidavit admitting his mistake in showing the case number in the vakalath. Fact of the matter; is that name of the counsel was not shown in the list when the matter came up for consideration. Consequently there was no representation for the complainant, who was the 2nd respondent in the petition. The petitioner believes that had he been heard, the result would have been different and quashment of private complaint would not have been the result. He suffered great prejudice. Hence this application under Section 482 Cr.P.C. to recall the order dated 13/08/2014 in Crl. M.C. No. 1612 of 2009 and also to rehear the case.

(3.) Heard Shri. G. Shrikumar, learned Senior Counsel appearing for the applicant (complainant), Shri. Bechu Kurian Thomas, learned counsel for the 2nd respondent (petitioner in the Crl. M.C./5th accused) and Shri. K.K. Rajeev, learned Public Prosecutor.