BADLOO Vs. STATE

JUDGEMENT

(1.) THE revisionist-applicant Badloo was convicted under Section 326 of I. P. C. and sentenced to a period of two years R. I. by the Judicial Magistrate, Lucknow. His appeal (Crl. Appeal No. 104/82) was also dismissed on 4-11-82 by the learned Sessions Judge, Lucknow. He preferred a Criminal Revision No. 612 of 1982 against the judg ment dated 4-11-82, but it was also dis missed by this Court on 25-9-97 without hearing the revisionist or his counsel. His counsel Sri Arun Sinha moved application (Crl. Misc. Case No. 2277/98) for recalling the said order dated 25-9-97 on the ground that he could not appear on 25-9-97 due to his illness and illness slip was sent when this recall application came before the Court on 8-12-98 for orders, his junior Sri Gautam appeared and told the Court that Sri Sinha was unable to appear due to his illness. This Court, however, rejected the recall application.

(2.) SRI Arun Sinha has now moved this second recall application (Crl. Misc. Case No. 2746 of 1998) under Section 482 of the Code of Criminal Procedure for setting aside dismissal order dated 25- 9-97. Al legations have been supported by affidavit of one Ram Gopal, the brother of the revisionist. The ground is that the counsel SRI Arun Sinha could not appear and make submissions in support of the revision, due to his illness. There is no counter- affidavit to controvert the factum of illness of SRI Arun Sinha.

(3.) IT is a fact that order dated 25-9-97, by which the revision was dismissed by this Court, was passed in absence of the revisionist and his counsel. In other words, revision was dismissed without hearing the revisionist or his counsel. IT is also not in dispute that first restoration application was also dismissed in absence of the senior counsel. On both the dates Sri Arun Sinha, learned counsel for the revisionist- applicant was ill. The question is as to whether this Court has powers under Sec tion 482 of Cr. P. C. to recall the order dated 25-9-97 so as to afford an opportunity of hearing to the revisionist or his counsel. Srikant Srivastava's case (supra) cited by the learned counsel for the State does not help him at all. In that case the Magistrate had consigned the record of the criminal case because none for the prosecution responded. The first restoration applica tion was also rejected. The second restora tion application was moved. The point was raised before the Court that second res toration application did not lie. This Court repelled the contention and took the view and said: "in the instant case, by order dated 27th November, 1980 the Magistrate only dismissed the restoration application as nobody appeared on behalf of the prosecution. IT cannot be called a judgment or final order disposing of the case. In the circumstances the principles of Section 362 of Cr. P. C. would not be applicable in the instant case. If an application for restoration is dismissed in default, in my opinion, it is always open to a party to move another application for restoration, as I do not find any such prohibition in the Criminal Procedure Code. "