BHUDEV MONDAL AND OTHERS Vs. LAKHINDAR MONDAL

JUDGEMENT

(1.) This is an application for restoration of an appeal which was allowed exparte on the 31st Aug., 1977 and by the order of that date the order of acquittal passed by the learned Magistrate was set aside and the petitioners were convicted and sentenced. It is stated that the petitioners live in a/emote village in the district of Birbhum and it was not possible for the petitioners to keep watch on the case pending in this court. The petitioners came to know that the above appeal was allowed on the 31st of Aug., 1977 and the learned advocate Mr. Ujjal Kumar Sinha was not present in support of the petitioners case. The Petitioners came to know of the above fact on the 10th of Sept., 1977. It was stated to the petitioners by the clerk to the learned advocate that the learned advocate missed the list on Aug. 31st, 1977 and as such could not appear when the appeal was taken up for hearing. In the circumstances, it is prayed that as the order of acquittal has been set aside and the petitioners have been convicted and as the petitioners could not place their case for ends of justice the order passed on 31st Aug., 1977, beset aside and the appeal be restored to file and be heard in the presence of the petitioners. Mr. J. Islam, learned Advocate appearing on behalf of the opposite parties opposes the application. He contends that section 362 of the Code prevents the court from altering or reviewing the judgment of final order Sec. 362 reads as follows:- "Save as otherwise provided by this Code or by any other law for the time being in force, no court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. That being so, it is submitted that the appeal was heard in presence of the learned advocate for the appellant. The learned advocate for the appellant placed the entire evidence on record. The Court considered the evidence and the facts and circumstances and was pleased to set aside the order of acquittal. In the circumstances, section 362 is a bar and this court cannot set aside the final order passed by it on the 31st Aug., 1977.

(2.) Mr. Harinarayan Mukherji, learned advocate appearing on behalf of the petitioners submits that in the exercise of inherent jurisdiction conferred on the court by section 482, this court for securing ends of justice can recall the order. In this case an order of acquittal was set aside by this court and the learned advocate for the petitioners could not be present to place the case of the petitioners for reasons stated in the petition. That being so, the petitioners should be given a chance to place their case. In support of the contention Mr. Mukherji relies on a full bench decision reported in AIR 1954 Bombay 65 (The State of Bombay Vs. Nilkanth Shripad Bhave & anr). This was a case under the old Code. It has been held 'As section 561A was enacted to emphasise the fact that the High Court has the widest jurisdiction to pass orders to secure the ends of justice, 561A must give power to the High Court to entertain applications which are not contemplated by Criminal P. C. Therefore, if the High Court feels that the ends of justice require that an order should be made in an application, although the application is not contemplated by the Code, the High Court will entertain the application and make the necessary orders to secure the ends of justice. "Mr. Mukherji submits that in the present case also the application for recalling the order may be entertained by the court if the court feels that such an application should be allowed for ends of justice Mr. Mukherji also relies on a decision reported in AIR 162 Patna 417 (Ramballabh Jha Vs. The State of Bihar). In this case, a judgment in appeal was delivered without giving reasonable opportunity to the appellant or his pleader to be heard in the case as required by section 421 of the Code. It was held that the judgment was passed without jurisdiction and the High Court has inherent power to make an order for its being reheard. Relying on the proposition of law laid down in the cases referred to above and considering the facts and circumstances of the case, I am of opinion that the ex-parte order passed on the 31st of Aug., 1977 by which the appeal was allowed should be recalled.

(3.) In the result, the application succeeds. The order passed on 31st Aug., 1977 is recalled. Let the appeal be heard in presence of the parties.