ASHOK KUMAR LAHIRI Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) In the instant revisional application the legality and propriety of the order dated 16.02.2009 passed by the learned Chief Judicial Magistrate, Barasat in connection with Rajarhat Police Station Case No. 7 dated 07.01.2004 under section 306 of the Indian Penal Code was assailed. On 11.11.2010 this Court passed the following order:

(2.) Learned Lawyer for the petitioner has subsequently prayed for recalling of the said order which was passed in his absence. Upon his prayer in the cause list of 22.12.2010 the matter appeared under the heading 'to be mentioned' under serial No. 2. So the matter was again heard on 22.12.2010. It is submitted by the learned Lawyer for the petitioner that the matter went out of list on 11.11.2010 with liberty to mention after one month. But this Court considered the matter on merit on 06.12.2006, i.e., before expiry of one month and the petitioner was not given any opportunity of being heard which will lead to miscarriage of justice. Therefore, the said order should be recalled. Learned Lawyer for the opposite parties as well as the State have opposed the move and contended that once the Court has disposed of the revisional application on merit the same cannot be recalled but the aggrieved party may file review application if he so decides. They have referred to and relied upon the principles laid down in State of Kerala vs. M M. Manikantan Nair, 2001 SCC(Cri) 808 Hari Singh Mann vs. Harbhajan Singh Bajwa & Ors., 2001 SCC(Cri) 113 etc. in support of their contention. In those cases it has been set at rest that the High Court has no jurisdiction to alter or review its own judgement or order except to the extent of correcting any clerical or arithmetic error. Practice of filing Criminal Miscellaneous petition after disposal of main case and issuance of fresh direction in such petition is unwarranted and amounts to abuse of process of Court. Once the matter is finally disposed of, the Court in absence of a specific statutory provision, becomes functous officio in respect of that matter.

(3.) Learned Lawyer for the petitioner on the contrary has drawn my attention to the principles laid down in Habu vs. State of Rajasthan, 1987 AIR(Raj) 83 Giridharilal & Ors. vs. Pratap Rai Mehta & Anr., 1989 CrLJ 2382 Kailash Nath Lahiri vs. Shantilal Khushaldas & Bros. Pvt. Ltd., 1977 CrLJ 1520Deepak Thanwardas Balwani vs. State of Maharashtra & Anr., 1985 CrLJ 23 etc. to substantiate his claim that the Court has inherent power under section 482 Cr.PC to recall its own order. In it has been held that in its inherent powers as provided in section 482 Cr. PC the High Court can review or revise its judgement if such a judgement is pronounced without giving an opportunity of being heard to a party who is entitled to a hearing and that party is not at fault. For the mistake of the Court a party cannot suffer. In that case the hearing was adjourned to 13th February but in the Roznamcha the adjournment date was inadvertently marked as 8th February. On 8th February the petitioner and his Counsel were absent and the High Court after going through the record dismissed the writ petition. In the instant case the petitioner was given opportunity of hearing on 11.11.2010 while no action was taken. Therefore, the matter went out of list with liberty to mention after one month. In its spirit and the true sense of the term this liberty to mention after one month was intended for the absentee petitioner or his lawyer and not meant for the learned Lawyers for the State and the opposite parties who were present. Therefore, when the lawyers for the opposite party/ State mentioned the matter for listing the same upon notice to the other party the Court allowed the prayer and fixed 06.12.2010 for hearing of the revisional application. If learned Lawyer for the petitioner intended to include the case for hearing before one month the time limit for one month was binding upon him. Since the said time limit was not binding upon the opposite parties, the Court allowed such prayer and once the case appeared in the list for hearing it is the duty for the learned Counsel for the petitioner to appear and take opportunity of hearing or oppose the move on any ground whatsoever. Section 403 of the Code of Criminal Procedure runs as follows: