ANIL KUMAR Vs. STATE OF UP

JUDGEMENT

(1.) THIS Recall Application No. 339850 of 2009 dated 14.12.2009 alongwith the Delay Condonation Application No. 339849 of 2009 has been filed by the complainant seeking recall of an order of this Court granting bail dated 10.11.2009, passed by Hon'ble S.K. Singh and Hon'ble R.A Singh, J.J. in Crl. Appeal No. 5568 of 2004, which was made to apply to the case of nine accused persons in different connected Criminal Appeals. On 6.1.2012, it was directed to be listed before the regular bench by the Bench comprising Hon'ble S.K. Singh J. and Hon'ble Pankaj Naqvi,J. as the case had earlier been nominated by the Chief Justice to be listed before a Bench presided over by Hon'ble S.K. Singh, J. on 15.3.2011.

(2.) AFTER the order releasing the case passed by the earlier bench on 6.1.2012, the Chief Justice passed an order on 19.3.2012 that the case may be listed before the appropriate Bench. As a RESULT THIS CASE CAME UP BEFORE A BENCH COMPRISING OF HONBLE AMAR SARAN, J and Hon'ble Ashok Srivastava, J. on 3.4.2012 and was directed to be put up for orders on 17.04.2012. On 17.4.2012 the counsel for the complainant cited a decision of the Apex Court in the case of Vishnu Agarwal Vs. State of UP and another, (2011) CCR 392 (SC) for the proposition that if a party is not served with notice and a case is heard, then a recall application may be maintainable and recall of the order will not be barred under Section 362 Cr.P.C. The learned counsel for the appellant Sri Mishra, Senior Advocate had requested ten days time to address the Court on his preliminary objection as to the maintainability of the present recall application.

(3.) HE has submitted that the matter was taken up on 7.11.2009 but the counsel for the complainant did not appear, however, the appellant and the Additional Government Advocate were heard at length and a detailed order was passed on merit on 10.11.2009 by which bail was granted as above. He has further contended that under Section 301 Cr.P.C., in a Criminal matter, only the public prosecutor and assistant public prosecutor have a right to appear without any written authority before any Court and under Section 301(2) Cr.P.C., it is provided that if any private person instructs a pleader to prosecute any person in any Court, the public prosecutor and assistant public prosecutor incharge of the case shall conduct the prosecution and the pleader so instructed shall act therein under the directions of the public prosecutor and assistant public prosecutor and may with the permission of the Court, submit written arguments after the evidence is closed in the case.