FAROOQ SULTAN SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ALL of them have been heard at length.

(2.) SHRI Ansari has submitted this application on behalf of one Farooq Sultan Shaikh who happens to be charged for committing an offence punishable under provisions of Section 392, 397 of IPC. His bail application bearing application No. 1219 of 2001 was before the Court for hearing on 29. 5. 2001. It was withdrawn with permission of this Court. Thereafter another bail application was filed which was withdrawn on 11. 1. 2002, which was bearing No. 2834 of 2001. Again permission was sought to have the liberty to file the bail application again because at that time the counsel appearing for the applicant submitted that relevant documents including bail orders granted to other co-accused were not annexed to bail application. Thereafter another bail application bearing No. 486 of 2002 was filed. Urgent circulation was sought on 7. 2. 2002 for taking the hearing of the said bail application on 13. 2. 2002. It was granted and the bail application came up for admission. The concerned police officer was deputed to remain present in the Court for clarification of antecedents of the said applicant-accused on 11. 2. 2002. The bail application could not reach for hearing from 13. 2. 2002 to 25. 2. 2002. On 4. 3. 2002, the counsel for the applicant sought the circulation for moving the bail application before another Judge. On 7. 3. 2002, the office placed the bail application before the Hon'ble Shri Justice R. K. Batta who dismissed the bail application for default. On 13. 3. 2002, Criminal Application bearing No. 992/2002 was filed for restoration circulation. The application was permitted to be taken up for hearing on 18. 3. 2002. On 18. 3. 2002, the said criminal application was allowed by setting aside the dismissal order. Criminal Application No. 486 of 2002 was directed to be kept on Board on 28. 3. 2002. From 28. 3. 2002 to 3. 5. 2002, the applicant says that the bail application could not come for hearing even after mentioning on account of overload of work. On 3. 5. 2002, urgent circulation was sought by mentioning before the Vacation Judge on 10. 5. 2002. Circulation was granted and the bail application came for hearing on 10. 5. 2002. On that date arguments were advanced on behalf the applicant in that application but it seems that the Court wanted to know the criminal antecedents of the applicant and the Addl. Public Prosecutor (Shri Konde Deshmukh who then was having the seisin over the brief) sought adjournment for getting necessary information about the criminal antecedents of the applicant. Thus, the application was stayed on for hearing to 14. 5. 2002. On 14. 5. 2002, Shri Ansari, counsel for the applicant, submitted that he waited till 4. 45 p. m. and when he was in verandah he had a talk with Shri Konde Deshmukh, the Addl. Public Prosecutor who was handling the said brief on behalf of the prosecution and according to Shri Ansari Shri Konde Deshmukh told him that the application would be heard after vacation. Shri Ansari, Advocate, submitted that on account of that he did not remain present on 15. 5. 2002 when the said application was taken on Board for hearing as the remaining Board was taken for hearing on the next date by the Vacation Judge (present Judge who is deciding this application ). On 15. 5. 2002 this Court after perusing the case diary dismissed the bail application on merit. Being aggrieved by that, now this application has been submitted with a prayer to restore it in the interest of justice by exercising inherent powers by recalling the said order of dismissal of the bail application on merit.

(3.) SHRI Ansari, Counsel appearing for the applicant, placed reliance on the judgment of Rajasthan High Court Full Bench in the matter of Habu v. State of Rajasthan , reported in AIR 1987 Rajasthan 83 wherein the Full Bench of Rajasthan High Court held that there are distinct difference between High Courts power to recall its order than the power of altering or reviewing the judgment. The powers under Section 482 of Cr. P. C. 1973 (hereinafter referred to as "code" for convenience) can be and should be exercised by the High Court for recalling the judgment in case the hearing is not given to the accused and the case falls within one of the three conditions laid down under Section 482. He also placed reliance on the judgment of the Supreme Court in the matter of Chakareshwar Nath Jain v. State of Uttar Pradesh, reported in AIR 1981 SC 2009 (2) wherein the Supreme Court held that: