STATE OF U P Vs. PREM SINGH

JUDGEMENT

(1.) THIS application under Section 482. Cr. P.C. has been filed by the opposite party that the order dated 23,4.1994 passed by this Court be recalled and a further prayer has been made to stay the operation of the order dated 23.4.1994.

(2.) I have heard Sri Veer Singh, learned counsel for the applicant at length. The learned counsel for the applicant placed the decision reported in 1987 (24) ACC 364, Habu v. State of Rajasthan. The learned counsel for the applicant submitted that the Supreme Court has observed in the Judgment reported that the power under Section 482, Cr. P.C. for recall is different from the power of altering or reviewing a Judgment. The Supreme Court was clear and categorical in making the observation that the power under Section 482, Cr. P.C. can be and should be exercised by the Court for recalling the judgment in case the hearing is not given to the accused and the case falls within one of the preconditions laid down under Section 482, Cr.. P.C. The learned counsel has no option except to argue the case for reviewing the order passed by this Court. He has not addressed the Court or satisfied the Court with any material why after filing of the appearance memo before this Court on 29.9.1993 no counter- affidavit was filed on behalf of the applicants and why the counsel for the applicant-O. P. was not present in court when the case was called out and taken up in the revised list. The applicant cannot make a complaint that he was not given opportunity of filing any counter-affidavit or was not provided opportunity of hearing. The case law cited by the learned counsel is of no consequence and does not help him.

(3.) AFTER hearing the learned counsel for the applicant at length I am of the view that in the garb of application under Section 482, Cr. P.C. the matter decided on merits cannot be reopened. The Court had examined the facts of the case and detailed discussions are contained in the order passed by me. I am not inclined to invoke the jurisdiction under Section 482, Cr. P.C. in the present case in view of the fact that the applicant- opp. parties themselves are to be blamed if they did not file any counter-affidavit and their counsel did not appear in Court atleast to assist the Court. The application is hereby dismissed. Application dismissed.