HAZI MAHAMUD ALI Vs. STATE OF TRIPURA

JUDGEMENT

(1.) Heard Mr. S. Dutta, learned counsel for the applicant/appellant/petitioner and Mr. A. Ghosh, learned State counsel for the respondent.

(2.) The present criminal misc. case has been preferred under Section 482 of the Code of Criminal Procedure (for short "Cr. P.C.") to recall/review the judgment dated 16/5/2005 passed by this Court in Criminal Revision Petition No. 18 of 1998, whereby Criminal Revision Petition was dismissed in absence of learned counsel for the applicant/appellant, namely, Sri Hazi Mahamud All. The aforesaid Criminal Revision Petition was preferred u/S. 397 read with Section 409 of the Cr. P.C. against the judgment dated 17/3/1998 passed by the learned Sessions Judge, North Tripura, Kailashahar in Criminal Appeal No. 10(2) 1997 allowing the appeal partly by setting aside conviction and sentence' dated 13/5/1997 under Section 49.8-A of the Indian Penal Code (for short "tne,IPC")f passed by the learned Judicial Magistrate, 1st Class, Kailashahar, North Tripura in Case No. G.R. 7 of 1995 whereby the learned Judicial Magistrate, 1st Class, Kailashahar, North Tripura convicted the petitioner/appellant along with_ one Smti. Harichunnessa (Begum) to suffer rigorous imprisonment for 2 (two) years. However, on appeal learned Sessions Judge convicted the petitioner to suffer regorous imprisonment for 6 (six) months under Section 324 of IPC acquiting other accused Smti. Harichunnessa (Begum).

(3.) Mr. S. Dutta, learned counsel for the applicant/appellant has submitted that the impugned order dated 16-5-2005 was passed without the assistance of the accused or without assistance of the learned counsel for the accused therefore, in view of the provision of Section 401 read with Section 482 of Cr. P.C. the order dated 16-5-2005 passed in Criminal Revision No. 18 of 1998 has to be recalled for the purpose of giving fresh hearing by providing opportunity of hearing and for reconsideration of the Criminal Revision Case No. 18 of 1998. For this purpose Mr. Dutta, has placed reliance on a judgment of Supreme Court in 1981 Cri LJ 1690 (2) : AIR 1981 SC 2009 (1) (Chakareshwar Nath Jain v. State of Uttar Pradesh when the High Court of Allahabad had adjournment all the cases of a particular advocate for particular period, however, hearing of revision application in which that advocate was appearing was taken in his absence on one day during adjourned period and was dismissed ex parte on merits. The Supreme Court while allowing the criminal appeal, reversed the decision of the Allahabad High Court with a direction to the High Court to hear the revision application in accordance with law, after giving opportunity to the appellant.