TAPAS KUMAR BASU Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) The Petitioner has been arrayed as an accused in a proceeding under Section 138 of the Negotiable Instruments Act in Cr. No. 377 of 2010 pending in the Court of learned Judicial Magistrate 5th Court, Serampore, Hooghly. The learned Court by a detailed order rejected the adjournment application of the petitioner for adducing defence witness on the ground that at least 4/5 opportunities were given to the petitioner to adduce defence witnesses but the petitioner did not do so. The petitioner also challenged the order of learned trial Court in a criminal motion before the Hon'ble Court being Motion No. 93 of 2012 and the petitioner took several adjournments though in fact there was no such stay order from this Hon'ble Court and ultimately the Criminal Motion being No. 93 of 2012 was rejected by this Court. Being aggrieved by and dissatisfied with such order the petitioner preferred a criminal Revisional Application being CRR No. 3261 of 2016. The said Criminal Revisional Application was disposed of by this Court on 17th August 2016 in absence of the present petitioner since the learned Advocate for the petitioner did not appear on that date. The application was taken up for hearing in presence of learned Advocate of the opposite party/complainant and after going through the materials on record and after hearing the learned Advocate for the opposite party this Court rejected the said application holding inter alia that the learned Magistrate was justified in rejecting the prayer of the present petitioner with a cost of Rs. 400/-.CRAN being 3845 of 2016 has been filed by the petitioner on 28th September 2016 with the prayer to recall the earlier order passed by this Court dated 17th August 2016 on the ground that no opportunity of hearing was given to the present petitioner at the time of disposal of such application.

(2.) Learned Advocate for the petitioner submitted that Section 362 of the Criminal Procedure Code would not be a bar in recalling the aforesaid order since no opportunity of hearing was given to the petitioner at the time of disposal of the Criminal Revisional Application. In support of his contention learned Advocate for the petitioner has referred the following decisions:

(3.) In both the cases the Hon'ble apex Court as well our High Court had categorically observed that Criminal Appeal should not be disposed of without giving any opportunity of hearing and accordingly the Courts below were directed to dispose of such criminal appeals after giving opportunity of hearing to the appellants.