RAMCHANDRA PRASAD YADAV Vs. ANIRUDH SINGH AND OTHERS

JUDGEMENT

(1.) This is an application under Sec. 561A of the Code of Criminal Procedure (hereinafter to be referred to as the Code) to set aside the order passed by this Court in Criminal Revision No. 1245 of 1969, with a prayer that it may be reheard. Against an order passed by the Magistrate in a proceeding under Sec. 145 of the Code, the aforesaid criminal revision was filed in this Court by Anirudh Singh and others, who are opposite party in the instant case. Petitioner Ramchandra Prasad Yadav and one Vijai Prasad Yadav was opposite party in that criminal revision. Notices were issued to them in the criminal revision. It appears that the report of the peon was that he met both Vijai Prasad Yadav and Ramchandra Prasad Yadav and that Vijai Prasad Yadav received the notices for himself as also for Ramchandra Prasad Yadav. None of these two persons appeared in the criminal revision. The case was taken up for hearing on 5.12.1969. It was heard in part on that day. Hearing was resumed and concluded and judgment was delivered on 8.12.1969. The criminal revision was allowed. The order of the learned Magistrate was set aside and the case was ordered to be remanded for fresh decision according to law. On 18.12.1969 Ramchandra Prasad Yadav filed the application of the instant case with an assertion that he had not received any notice of the aforesaid criminal revision and be had no knowledge about it, with the result that he could not appear in the case at the time of hearing. It is stated in the petition that it was on 8.12.1969 that the father of the petitioner learnt from one Ajablal Yadav of Basudeopur that Anirudh Singh, a member of the opposite party, was telling him that a case against the order of the learned Magistrate passed under Sec. 145 of the Code was opened in the High Court. Receiving such information, the petitioner along with his father came to Patna on 9.12.1969 and spoke about it to Shri Indra Bhanu Singh, Advocate. On examination of the case list it transpired that the case was disposed of on 8.12.1969. The petitioner then went back home for the necessary papers as well as for money for necessary expenses. Thereafter this application was filed for the reliefs mentioned above on the grounds stated therein. The prayer of the petitioner is resisted by the opposite party on the ground that review of the judgment of this Court could not be granted under the provision of Sec. 561A of the Code and that the instant case is not fit for exercise of any power under that section.

(2.) In connection with the first ground the submission of the learned counsel for the opposite party, is that the judgment of this Court in criminal revision was final and after that judgment was signed, this Court became functus officio and so the judgment cannot be reviewed. In support of this contention reliance has been placed upon Sec. 369 of the Code as also on a number of decisions which will be referred to hereinafter. On the other hand the submission of the learned counsel for the petitioner is that in view of Sec. 561A of the Code this Court can in appropriate cases recall its order for the purposes mentioned in that Sec. in spite of the provisions of Sec. 369 of the Code. In support of this contention, the counsel has relied upon Borne decisions which also will be referred to hereinafter.

(3.) Sec. 369 of the Code runs thus: - -