SHYAM BEHARI Vs. NIRMALA DEVI

JUDGEMENT

(1.) The applicantTs petition under Section 482 Criminal Procedure Code was dismissed on 9-8-1983. The applicant has preferred this application making a prayer that the order dismissing the petition be recalled. It would appear that the application under Section 482 Criminal Procedure Code was at the stage of admission. Part arguments were heard, thereafter the records were summoned at the applicants costs and the case was listed for orders on 9-8-1983, after records were received. On that date neither the applicant nor his counsel appeared. The list was revised and yet none appeared to argue. The case being a part heard case for admission it could not be dismissed in default for want of prosecution. I, therefore perused the materials on records as well as lower courts record and holding that matter stands concluded by finding of fact and not finding any force in the application under Section 482 Criminal Procedure Code. I summarily rejected it. The order of dismissal of the application is not just for default of appearance but bas been passed on merits by the court after considering materials on records as well as records of the lower courts and assigning reasons for dismissal of application summarily. It is an order passed on merits of the case and that being the position, the prayer for recall of the order dated 9.8-1983 amounts to seeking a review of that order. The case of Naresh v. Slate of U. P.,1 is a direct authority for the proposition that once a judgment has been signed and pronounced deciding the case any alterations in the judgment would amount to a contravention of the provision of Section 362 of the Code of Criminal Procedure. Apart from that unlike Civil Procedure Code, Criminal Procedure Code does not contain any provisions for review of a judgment. As mentioned earlier the summary rejection of the application under Section 482 Criminal Procedure Code is non-merits and not simply for default of appearance. This had to be done and the matter had to be considered one way or the other when it was a part heard case. Reliance was placed by the learned counsel for the applicant upon the case of Shyam Sunder v. State of Rajasthan2. In that case what transpired was that initially the appeal was pending in the High Court of Jodhpur Bench but was later transferred to Jaipur Bench and without notice to the applicant it was dismissed by the Bench. On the very face of the facts of the case there was an error on the part of the Court as the applicant had no notice and in these special circumstances the order dismissing the appeal was set aside and the appeal was remanded to Jaipur for disposal. This case cannot be an authority for such cases in which the case is listed correctly with the name of the applicants counsel and all normal procedure of revising the list has been observed and the case has been dismissed. If the applicants counsel does not care to come what is the option left but to dismiss it after perusal of the record by the court itself and taking a decision on merits in the absence of the applicants counsel. It was submitted that the counsel was busy else where, when the routine and normal practice is that when the counsel is busy case where a mention is made in the early hours and the case is either passed over or if the counsel wants it to be taken at some particular hour that is done. H was not so in this case. There was no mention made that the counsel is busy else where so the Court should wait. Reliance was further placed upon the case of Chakareshwar Nath Jam v. State of Uttar Pradesh.3 In that case the cases of a particular advocate were adjourned for a particular period as happened to be the procedure in this court yet during very period the revision in question was disposed of behind the back of the counsel ex parte. That again amounted to an apparent error on the part of the Court itself because once cases of that particular advocate were adjourned for a particular period his case could not be taken up during that period as he would (take) it for granted that it would be adjourned and in that special circumstances the ex parte order was set aside. This case also is thus distinguishable on facts. Reliance was further placed upon the case of Ashok Kumar v. State,4 but that is on a different point and does not help in this case. Reliance was further placed upon the case of Sangam Lat v. Rent Control and Eviction Officer,5 but firstly judgment is signed and that in itself is sufficient and secondly, it is also sealed as I notified. Apart from that an absence of seal will be a mere technicality when judgment is duly signed and pronounced in open court. In the aforesaid Allahabad case the judgment was not signed and in that context all the observations have been made so that argument of the learned counsel for the applicant has again no force.

(2.) It was next urged that I recalled my order dismissing the application in Criminal Misc. case No. 335 of 1981. That record was procured. The application was not rejected on merits but on defaultas it was not perused. It was not a part heard case so instead of going into the merits it was simply dismissed for want of prosecution and not on merits. The present case has been dismissed on merits and the position stands on a different footing.

(3.) In the result, the application for recall of any order dated 9-8-1983 and its review is rejected.