RAM NIHARA PANDIT Vs. STATE OF ASSAM

JUDGEMENT

(1.) This petition under section 482 of Cr. P. C. has been filed by the petitioner Shri Ram Nihara Pandit for setting aside the judgment and order dated 3.3.94 passed by this Court in Criminal Revision No. 46/1989. The only question which calls for consideration in this petition filed under section 482 of Cr. P.C. is that whether the High Court has jurisdiction to entertain an application for modification of the sentence after the judgment has been passed on merit.

(2.) Mr G.P. Bhowmik, the learned counsel appearing on behalf of the petitioner has strenuously contended that under the provision of section 482 of Cr.P.C. then: is scope for re-hearing the case, where it is not disputed that the judgment in question was passed without hearing the counsel for the petitioner. It is true that the judgment in question, was passed without hearing learned counsel for the petitioner. But a bare perusal of the records will make it abundantly clear that the learned counsel for the petitioner was not available when the case was taken up for hearing. So, there is a distinction between the contention that when the case was disposed of without hearing and the when the lawyer for the party was absent without assigning any reason. In the instant case it cannot be said that no opportunity to the counsel for the petitioner was given when the case was called on for hearing. The observation made in Para 2 of the judgment clearly shows that not only the learned counsel for the petitioner was absent at the time when the case was called on for hearing, but the court also sent for the learned counsel for the petitioner. But unfortunately he could not be traced out and when this fact was reported to the court the court took up the matter for its disposal on merit and on perusal of the judgment I find that the judgment was passed after appreciation of the facts. I am, therefore, of opinion that so far as this case is concerned it cannot be said that no opportunity was given to the petitioner or his counsel for hearing.

(3.) Mr. Bhowmik has however cited a decision of Kerala High Court in the case of Rajan Kumaran, petitioner Vs. Vijayan Achuthan and others, respondents, reported in 1970 Cri. L. J. 1547. On going through the judgment I am of the view that this judgment does not support the contention of Mr. Bhowmik. Under Para 3 of the judgment the learned Judge also quoted another decision rendered in the: case of the State Vs. Kujan Pillai AIR 1952 Travancore Cochin 210. In that case learned Judges held :