DEEPAK THANWARDAS BALWANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The present petitioner, Deepak Thanwardas Balwani was prosecuted by respondent No. 2 Navabai Chhangomal Vasandani, in the Court of learned Metropolitan Magistrate, 7th Court, Dadar, Bombay. The allegations made against him were with regard to offences punishable under sections 341, 397 and 506 (Part II) r/w section 34 of the Indian Penal Code. The learned Magistrate issued process and the complaint was registered as Case No. 91/S of 1982. The petitioner challenged the said order of issue of process against him by filing Criminal Writ Petition No. 367 of 1983 in this Court and prayed for quashing the said proceedings. The said writ petition was on weekly board beginning from 30th January, 1984. It came up for hearing on 2nd February, 1984. On that day it was mentioned by Mr. N.D. Jaywant, learned junior of Mr. M.K. Joshi, and applied for date. If appears that initially 6th February, 1984 was suggested as the next date but that date was not convenient to the learned Counsel appearing on behalf of respondent No. 2 Therefore, another date viz, 8th February, 1984 was suggested. But since that date was also not convenient, it being in the middle of the week, the writ petition was adjourned to 13th February, 1984, it seems that since 8th February, 1984 was one of the dates mentioned for adjournment before the writ petition was actually adjourned to 13th February, 1984, the Sheristedar of this Court inadvertently mentioned in the Roznama that the next date of hearing was 8th February, 1984 . Thus he made a mistake in not mentioning in the Roznama the correct date of hearing i.e. 13th February, 1984. The writ petition was thus called out for hearing on 8th February, 1984 when no one appeared on behalf of the petitioner. This Court went through the record and dismissed the writ petition having come to a conclusion that the complaint did disclose a prima facie case for issuing process. The rule was accordingly discharged.

(2.) Feeling aggrieved by the disposal of the writ petition on 8th February, 1984 in this manner the petitioner filed the present review petition. Mr. Joshi on behalf of the petitioner submitted that the petitioner and his Advocates were under a bona fide belief that the matter was adjourned to 13th February, 1984 and accordingly on that day they attended the Court but only to find that it was disposed of on 8th February, 1984 under the circumstances mentioned hereinabove. Therefore, according to Mr. Joshi, no opportunity of being heard was given to the petitioner before deciding his case against him and as such it can be said that this Court acted in violation of the principles of natural justice and hence with out jurisdiction. Therefore, the order passed by this Court on 8th February, 1984 should be recalled it being a nullity in the eyes of law, further submitted Mr. Joshi. He then urged that the averments made in the review petition that there was a genuine mistake as regards the correct date of hearing are not dispute in as much as respondent No. 2 did not file an affidavit in reply controverting the facts mentioned in the review petition. Mr. Gurasahani learned Counsel appearing on behalf of respondent No. 2 was asked by the Court whether his client was interested in filling an affidavit in reply to controvert the facts mentioned in the review petition to which Mr. Gursahani answered in the negative. And the fact remains that no such affidavit has been filed by respondent No 2 in this respect Mr. Gursahani, in fairness, submitted that his learned junior had told him that the correct date of hearing was perhaps 13th February, 1984 and not 8th February, 1984, Thus Mr. Gursahni did not seriously challenge that there was a genuine mistake as to the correct date of hearing being 13th February, 1984. Therefore, the hearing of the review petition was commenced on the basis that the correct date of hearing of the original writ petition was 13th February, 1984 and not 8th February 1984.

(3.) Mr. Gursahani urged that even if there was a mistake about the correct date of hearing of the writ petition the review petition the service petition , is not maintainable, it may be noted here that this review petition is purported to have been filed under the provisions of section 482 of the Criminal Procedure Code, 1973 corresponding to section 561-A of the Criminal Procedure Code 1898. Therefore, Mr. Gursahani submitted that once the High Court in its exercise of revisional jurisdiction had pronounced the judgment. The same cannot be reviewed or revised under the provisions of section 482 of the Criminal Procedure Code, 1973. To bring home his point Mr. Gursahani relied upon an authority of the Supreme Court in (State of Orissa v. Ram Chander Agarwala) (A.I.R. 1979 S.C. 87) in which it was held that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code which enable the High Court to review the same or to exercise revisional jurisdiction. Their Lordships further held that the provisions of section 561-A cannot be invoked for exercise of a power which is specifically prohibited by the Code. Mr. Joshi did not dispute and in fact he cannot dispute this position in law. However, according to him the facts of the case before the Supreme Court could be distinguished inasmuch as in the said matter the Orissa High Court had reviewed its earlier judgment on the ground that there was no proper notice to the accused persons for enhancement of sentence as the one issued to them was not that clear so as to enlighten the parties and the lawyers whether the enhancement of sentence was with regard it substantive imprisonment or of regularising the amount of fine. Their Lordships of the Supreme Court were of the view that the order of the learned Judge of the Orissa High Court was not correct because they did not find any basis for such a conclusion arrived at by the High Court. In other words, the Orissa High Court had reviewed its earlier judgment which was pronounced on merits after giving proper notice to the parties. Mr. Joshi was very candid in submitting that once the parties had enough opportunity of being heard, they cannot make a grievance about a decision arrived at by the High Court if such opportunity was not availed of by them and ask for review or revision. Therefore, according to him, the order of the Orissa High Court in review was correctly set aside by the Supreme Court because the parties in that case had ample opportunity of being heard in the matter of sentence and as such the Orissa High Court could not have reviewed its earlier order. I am in full agreement with the submissions of Mr. Joshi and am of the opinion that the facts and circumstances of our case are quite different and distinguishable from those in the case before the Supreme Court because in our case the petitioner had no notice that his writ petition would be taken up for hearing on 8th February, 1984. In fact, the petitioner was told that it was fixed for hearing on 13th February, 1984. Therefore, there was every reason for him and his lawyers to remain absent on 8th February, 1984. In other words, his case was disposed of on 8th February, 1984 with out giving him an opportunity of being heard. It is thus important to note that the Supreme Court was not dealing with a case in which no opportunity of being heard was given to a party before the case was disposed of. It is no doubt true that their Lordships further dealt with the matter, apart from the merits, and held that the judgment of the High Court in appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code and that the provisions of section 561-A of the Code cannot be invoked for exercise of power which is specifically prohibited by the Court. As I have stated earlier, there is absolutely no dispute about this position in law. But when the High Court disposes of a matter without hearing a party who is entitled to a hearing it can be said that the High Court acted without jurisdiction and in violation of the principles of natural justice. When such are the facts of a particular case, as in our case, the High Court can review its earlier order in its inherent powers provided under section 482 of the Criminal Procedure Code, 1973.