M ARASAL CHETTY ALIAS THAMILARASAN Vs. MANONMANI

JUDGEMENT

(1.) THIS petition is placed before me by the Registry on the question of maintainability of the petition. The petitioner, who filed the Criminal Revision Case No. 440 of 1992 challenging the order of the Family Court under Sec. 125, Code of Criminal Procedure granting maintenance to his wife, has filed this petition to re-hear his Revision No.440 of 1992 which has been already disposed of on 23.8.1994. According to the petitioner, as his counsel was engaged in another court, he could not attend this Court for enquiry in the revision on 23.8.1994 and therefore, this Court has passed an order ex parte and as his counsel was not heard on the contentions raised by him in the revision, he should be given an opportunity to re-hear the matter by setting aside the ex parte order dated 23.8.1994.

(2.) THE Registry entertained doubt as to the maintainability of this application in view of the fact that the Revision of the petitioner has been disposed of on merits on 23.8.1994. Hence, this petition is placed before me for consideration as to the maintainability of the petition itself.

(3.) THE first decision he relies upon is State of Orissa v. Ainul Haque, (1993)3 Current Criminal Reports 2149. That is a case in which the Sessions Judge had granted bail to an accused arrested for the alleged offence under the Narcotic Drugs and Psychotropic Substances Act. THE High Court suo motu took cognizance of the matter in granting the bail by the Sessions Judge and fixed a date for enquiry. Even though a counsel had entered appearance for the accused, the High Court of Orissa without knowing that a counsel had entered appearance, due to inadvertence and without hearing that counsel, cancelled the bail granted to the accused. Later on when it is brought to the notice of the court that the counsel was not given opportunity to make his representation, the court felt that the order of cancellation of the bail was prejudicial as the accused was not heard and therefore the order passed by the High Court on suo motu revision was recalled under Sec. 362, Code of Criminal Procedure. In that case, the Court itself took suo motu revision on the order passed by the Sessions Judge and without knowing the appearance of the counsel, the order was passed by the court. THErefore, the High Court of Orissa felt that the inadvertence while passing the order was prejudicial to the interests of the accused and the previous order was liable to be recalled. That analogy cannot be compared for this case because in spite of the opportunities given to the petitioner and his counsel to argue the points mentioned in the ground of revision the counsel did not turn up and therefore the order has been passed after taking into consideration the contentions raised in the revision. Hence, there is no question of recalling the order under Sec. 362, Code of Criminal Procedure as ordered in the above case.