MOHAMMAD AMIN Vs. STATE OF JAMMU AND KASHMIR

JUDGEMENT

(1.) ORDER :- The petitioner seeks quashing of the order dated 15-5-1997 passed by a learned single Bench of this Court dismissing the Cr. Rev. Petition No. 6/89 in the absence of the respondent-petitioner herein.

(2.) The contention of Mr. Qayoom is that the order impugned has been passed ignoring the mandate of proviso to Section 436 of Cr. P.C. Since the right of hearing has been denied to the petitioner, the order is liable to be quashed in exercise of inherent powers of the Court under Section 561-A of the Code. In support of this he placed reliance on a Full Bench judgment of this Court in Prem Singh v. State, 1982 Kash LJ 55 : (1982 Cri LJ 297) and Kaushal Kumar Gupta v. M/s. Dev Son Pvt. Ltd., 1989 Srinagar LJ 211. Mr. Qadri, learned Senior AAG on the other hand argued that the proviso to Section 436 has been complied by the Court after the petitioner had appeared and engaged his counsel. Since the petitioner had the notice that the order discharging him has been challenged and despite this, he or his counsel did not appear, it cannot be said that Section 436 has not been complied.

(3.) Proviso to Section 436(1) of Cr.P.C. reads as under :-