Guman Mal Lodha, J.
1. 'Recall' or 'not to recall', 're-hear' or 'not to rehear', is the dilemma typically caused due to Sankatha Singh's decision : AIR1962SC1208 ; and Swarth Mahto's decision : 1972CriLJ879 . The highlight of the dilemma is that both the decisions are of the Apex Court and occupy the same field of jurisdictional issue of re-hearing and re-calling the decision of a criminal case by the High Court. 'Inherent powers' under Section 482, Cr.PC (New) and 561A, Cr.PC (Old) 'bar' created by Sections 369 & 424, Cr.PC (Old) and Sections 362 & 387, Cr.PC (New) are interlocked in this juristic debate before this Court, which has taken days together. This typical decision vreuld reflect how a Judge faces judicial dilemma when the decisions are interpreted by the Bar to be conflicting even though they are of the Apex Court, precisely covering and occupying the same field. With this billion dollar question, I would now enter the traditional field of narration of the facts and the contentions before answering the above question which would be done in final phase of the judgment.
2. This is a Criminal Miscellaneous Petitition under Section 482, Cr.PC read with Article 226 of the Constitution of India, for quashing and recalling the judgment dated the 29th October, 1985 passed by this Court in Criminal Appeal No. 265 of 1976 by CBI (SPE) Jaipur, Criminal Appeal No. 248 of 1977 by the State of Rajasthan for enhancement of sentence of the petitioner and Criminal Appeal No. 123 of 1976 by the petitioner whereby this Court passed a common judgment deciding all the three Criminal Appeals.
3. The petitioner was convicted by the Special Judge (CBI), Jaipur, vide judgment dated the 12th January, 1976, in Criminal Case No. 12 of 1972 for the offences under Sections 161, IPC, 5(1)(b) read with Section 5(2) of the Prevention of Corruption Act, and was sentenced for 6 month's RI and a fine of Rs. 2,000/- under each count. The State had filed the appeal for enhancement of sentence, and the petitioner had filed the appeal for challenging the conviction and the sentence.
4. At the time, all the three appeals were taken by this Court, no one appeared for the petitioner, C. Jacob. All the three appeals were heard at length with the assistance of the Special Public Prosecutor, Shri S.P. Tyagi, Advocate.
5. After consideration of the submissions of Shri S.P. Tyagi and perusal of the record of the trial court, the judgment was dictated in open court All the three appeals were decided by a common judgment, and the appeal filed by the petitioner C. Jacob was dismissed and that of the State was allowed. The sentences imposed by the trial court were enhanced as under:
I am, therefore, inclined to accept the above appeals (No. 265/76 and 248/77) of the State and enhance the sentence to two years RI on each count under all the heads of three charges levelled against the accused C. Jacob Korah from six months' RI. The accused C. Jacob Korah took the bribe of Rs. 5000/- and the imposing a fine of Rs. 2,000/- only is wholly inadequate, I therefore, enhance the sentence of fine of Rs. 2,000/- to Rs. 5,000/- on each count under all the three heads of the charges levelled against the accused C. Jacob Korah, under Section 161 IPC, and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. The sentences awarded above on each of the three counts shall be consecutive and not concurrent. But, so far as the sentences in default of payment of fine is concerned, the three months RI sentence imposed by the trial court is maintained.
6. In the present petition, the petitioner has prayed that the judgment of this Court may be re-called, and the petitioner should be heard afresh on merits. I have heard Shri Satish Chandra Agrawal and C.K. Garg for the petitioner in support of the petition, which has been opposed vehemently by Shri S.P. Tyagi, the learned Public Prosecutor representing the State as well as the CBI.
7. The principal ground which has been pressed by Shri Agrawal is that the petitioner was taken by surprise, as he could not know about the listing of his case, even on the night preceding the day on which the case was heard. Two cause lists have been submitted of 29th October 1985, first one, has been termed as daily cause list. It was pointed out that I was supposed to sit in Court No. 2 with brother Farooq Hassan, J. According to this cause list, under the column of Hearing cases, it has been mentioned that the cases which are shown in supplementary cause list of 28th October, 1985, shall continue.
8. Shri Agrawal then pointed out that there is another cause list which was issued thereafter as supplementary cause list in which this Division Bench consisting of my self and Farooq Hassan, J., is missing and I have been shown sitting in S.B. in Court No. 2. This supplementary cause list mentions at serial Nos. 13, 14 and 15, these crucial appeals of the petitioner and the State, in question. It was submitted that where was serious confusion because first cause list mentions that there would be Division Bench and without cancellation of that cause list, supplementary cause lis for Single Bench was prepared without there being any Single Bench of mine according to the earlier cause list. Shri Agrawal pointed out that this confusion was responsible for absence of the immediate information to the petitioner.
9. Para 2 of the affidavit dated 25-1-86 sworn by the petitioner reads as under:
That I engaged the services of Shri J.K. Mathur, Advocate, when I was arrested on 29th April, 1980 for presenting and prosecuting the bail application. Shri J.K. Mathur's name did not appear in the causelist. He could not therefore, appear in the case at the time of hearing, which took place on 29th October, 1985. The name of Shri P.C. Mathur, Advocate only appeared, which was of no avail to Shri J.K. Mathur, Advocate.
10. Para 2 of the affidavit dated 27-1-1986 sworn by the petitioner reads as under:
That I am told by my counsel Shri C.K. Garg that at the time i.e. some time in the month of October and in the preceding months several types of cause lists were being published including supplementary cause list. The whole system of issuing cause list and pointedly finding out of the position of the case to be heard by a particular bench, one was supposed to refer to the weekly list the daily list and even the supplementary cause list. The system was ardous and lot of confusion prevailed in that period. This system was given up by the court in the month of November, 1985, as per information given by my counsel Shri C.K. Garg.
11. Shri Agrawal then pointed out that this confusion resulted in deprivation of a normal right of information to an accused and similarly his counsel also remained in confusion, and on October 29, 1985 after perusing this supplementary cause list, Shri R.N. Khandelwal wrote a letter to the petitioner mentioning that his case has been listed at serial No. 13 and he should make arrangements. This information reached Delhi on 4th November, 1985 when he received a telegram that his appeal has been dismissed.
12. It was also argued by Shri Agrawal that apart from the above confusion for which the accused or his counsel was not responsible, Shri Khandelwal did not expect that the case at serial No. 13 would reach on 29th Oct., 1985, under this expectation, Khandelwal left it to his junior and went to Bani Park Courts in some other case;but later on it has come to his knowle-Jedge that the case has been decided. Another advocate engaged by the petitioner was Shri J.K. Mathur but his name was not shown in the cause list. Yet, another advocate who was originally engaged was Shri P.C. Mathur who is practising at Jodhpur, therefore, he was not available at Jaipur.
13. Shri Agrawal submitted that the above circumstances would show that the petitioner has been denied a very valuable right of not only arguing his case for acquittal but even for showing cause against the appeal of the State for enhancement of sentence which, in fact, has been done in this case.
14. Shri Agrawal submitted that absence of his client petitioner and counsel Shri J.K. Mathur was not on account of their fault but on account of cumulative effect of the various circumstances and the events which happened, starting with the establishment of the bench at Jaipur on account of which Shri P.C. Mathur, Advocate, earlier counsel, was left at Jodhpur and then absence of Shri J.K. Mathur in the cause list and aboove all the confusion created by the two cause lists, one original and other supplementary, and the same Judge having been shown sitting in Division Bench with Farooq Hassan J., and, then without cancellation of that causelist shown in S.B. in the supplementary cause list.
15. It was argued that it is impossible that in such serious cases, where the accused was to undergo the sentence of imprisonment, if the appeal fails that there would have been any deliberate design on the part of the accused or his counsel to abstain from hearing or to avoid hearing.
16. Shri Agrawal emphasised that the absence was bonafide due to the sufficient cause and the fact that Shri Khandelwal could not attend the court and his Junior was not there, is a result of the above circumstances and particularly the confusion on account of the cause list system and partially due to the calculation of Shri Khandelwal that the accused should not be penalised for the above circumstances and confusions, on the part his counsel thought he, in order to defend his case, has engaged a gallaxy of ad vocates.
17. Shri S.P. Tyagi, the learned Public Prosecutor for the State and CBI (SPE), has raised a preliminary objection on the ground that such a Misc. application is not maintainable. Shri Tyagi submitted that it is salutary principle of the criminal jurisprudence based on the Apex Court precedents that once the judgment is given and signed, it becomes so far as that court is concerned final and, in no event, it can be altered or changed either by way of review, recalling, reconsideration or re-hearing.
18. Shri Tyagi emphasised that whatever might have been the circumstances in which the accused did not appear but when there is a jurisdictional bar for hearing such applications, the Court should not enter into the merits of sufficient cause.
19. Having heard the arguments at length, and after permitting both the learned counsels for the parties, to submit written arguments which they have submitted, I have kept this case in open court for dictation of judgment.
20. Shri Tyagi's main contention about the bar of jurisdiction of this Court, is based on the decision of the Apex Court in State of Orissa v. Rum Chander : 1979CriLJ33 .
21. Undoubtedly, in State of Orissa v. Ramchander (supra), their Lordships emphasised that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against the judgment as there is no provision in the Code of Criminal Procedure which would enable the High Court to review the same or to exercise revisional jurisdiction. It has further been clarified that the bar and the prohibition contained in Sections 369 and 424 Cr.PC (Old) is not limited to the trial court alone.
22. Their Lordships have further emphatically, in that case made it clear, that the provisions of Section 561-A cannot be invoked for exercise of a power which is specifically prohibited by the Code. Reliance has been placed on the decision in Sankatha Singh v. State of U.P. : AIR1962SC1208 .
23. The principles enunciated and emphasised in the two decisions, referred to above, of the Apex Court, may be summerised as under:
(1) that, the inherent powers of the Court cannot be invoked where there is express prohibition;
(2) that, the prohibition extends not only to the trial court but also the appellate court and the revisional court;
(3) that, Section 369, Cr.PC 1898, specifically prohibits and takes away the powers of the Court from altering or reviewing its judgment, once it is signed, except to correct clerical error.
24. Confronted with the above, Shri Agrawal pointed out that the above principle would apply when a party prays to the Court to alter, review or revise the judgments on merits. His contention is that there is inherent natural right based on natural justice to be heard or to show cause against the State appeal for enhancement of sentence and in respect of the appeal against acquittal by the accused. Such an inherent natural right which is a valuable and precious, invioable for a citizen, governed by rule of law under the Constitution of India, having in Apex protective umbrella of Articles 22 and 21 read with Article 14 of the Constitution, cannot be brushed aside by indirect deduction drawn from a decision which has been cited by Shri Tyagi, argued Mr. Agrawal.
25. Shri Agrawal elaborated his submission by precisely emphasising on difference and distinction which he drew between the judgments on merits, and a judgment which has been given and sought to be recalled, only for hearing or for re-hearing, which was heard in the absence of the accused and the counsel, both.
26. Shri Agrawal pointed out that the new dimensions of 'natural justice' in this country warrants that the Court must be Jiberal in its approach and unless there is express bar of the Apex Court, the Court should interpret the law in a manner which is benevolent and beneficial for enahancing the principles of 'natural justice' rather than curtailing them or jeopardising the more so, when the rights are natural, inborn and inviolable.
27. Shri Agrawal then submitted that this Court both, by express interpretation and by implication, has observed a principle at all times, that even in a criminal case, if the counsel is absent, an appeal or a revision can be heard on merits, again.
28. Support is derived from the judgment of this Court in Keshav Lal v. Gaveria . The great eminent luminaries in the legal field and the renowned jurists, Wanchoo, C.J., and Bapna J., interpreted both the provisions, in that case, with which we are concerned, of Sections 369 and 561-A, which is now contained in Sections 362, and 482 Cr.PC (new). They were conscious of the fact that there is no provision in the Code of Criminal Procedure which empowers a Criminal Court to restore a criminal case once it has been finally decided. They, also in terms mentioned that such powers should be conferred by a statute as is the case in the Code of Civil Procedure, before it can be exercised by a Court.
29. After having full judicial consciousness of the above two handicaps, and much before broadening of the horizons of the natural justice in eighties in the case of Menka Gandhi's decision : [1978]2SCR621 , these two eminent Judges did not feel helpless or powerless to do justice but innovated the golden principle that it is the duty of the Criminal Court to hear the case on merits and when it was not heard on merits of that case, to restore it and hear it, again, in the interest of justice.
30. True it is, that was a case of criminal revision which was dismissed without going into merits. But, the bedrock and fundamental principle enunciated and innovated in this judgment is that when great injustice has been done to a person without hearing him, then the Court should not feel helpless in invoking inherent powers under Section 561-A, Cr.PC (1898), in the interest of justice. For doing so, the Division Bench came to refer and relied upon the decision in Chandrika v. Rex AIR 1949 All 176 in which a criminal appeal was reheard even though it was decided after hearing the Government Advocate, at has been done in the present set of appeals by me.
31. Yet another case of this Court in Dhanna v. State of Rajasthan was concerned with the similar situation, where an accused moved an application for being heard and after recalling the judgment under Section 561A, Cr.PC (Old). The great legal luminary, C.B. Bhargava, J., considered the various decisions, including the decision in Keshavlal v. Gaveria referred to by me just above; Chandrica v. Rex AIR 1949 All 176, Ramballabh Jha v. State of Bihar : AIR1962Pat417 , Bhagwan Das v. State AIR 1954 Madhya Bharat 10 and Mohan Singh v. Emperor AIR 1944 Pat 209 which highlight on the crucial point of Section 561 A, CrPC (Old). His Lordship then discussed the High Court Rules which provide for seeking adjournment and particularly, Rules 79 and 80 Ultimately after discussing the procedure and requirement of the Rules, his Lordship found that there was no sufficient cause, neither the counsel was actually arguing any force before any bench when the appeal was called for hearing nor he mentioned in the court according to Rule 80 of the High Court Rules.
32. However, Shri Agrawal pointed out that the crucial and important observations are contained in last but one para which reads as under:
The inherent powers under Section 561A should be exercised very sparingly and only when the facts of the case justify the tests laid down in he section, itself. They do not authorise the Court to rehear a case where the appellant or his counsel were not heard on account of their own fault. I am, therefore, not satisfied that the absence of the learned Counsel at the time of the appeal was called for hearing was due to any sufficient cause and the ends of justice require that a re-hearing should be granted to him. The appeal was decided on merits after a perusal of the record of the case.
33. Shri Agrawal pointed out that if there would have been sufficient cause, the re-hearing would have been granted under Section 561 A, Cr.PC (Old), also because the crux of the matter is that there was no sufficient cause and the learned Judge did not dismiss the application on account of want of jurisdiction but on account of the absence of sufficient cause.
34. Having received support from the above two decisions of this Court, which according to Shri Agrawal squarely covers the matter in issue, he relied upon two decisions of the Apex Court in Swarth Mahto v. Dharm Deo Narain Singh : 1972CriLJ879 , where in on account of improper publication of cause list, the re-hearing was allowed treating it as sufficient cause; and in Smt. Lachi Tewari v. Director of Land Records : AIR1984SC41 where in the Apex Court examined the system of the cause list in the Supreme Court, where only the counsel is aware of the listing of case and the client hardly knows it; and, wherein it was observed that when the petitioner had taken extra care to engage three lawyers, nothing more can be expected from him. The Apex Court quoted from the decision in Rafiq v. Munshi Lal : [1981]3SCR509 where this aspect was considered as under:
The disturbing feature of the case is that under our present adversary legal through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned Advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done every thing in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watch dog of the advocate that the latter appears in the matter when it is listed, ft is not part of the job.
35. Reliance is also placed on the judgment in Kailash Nath v. Shanti Lal 1977 Cr.LJ 1520 where in Sections 362 & 482, Cr.PC (New) have been interpreted; and it has observed that, what Section 362 forbids is the alteration or review of the final order disposing of a case, but it does not prohibit the total obliteration of such order. Reliance is also placed upon the decisions in Northern India Caterers v. Lt. Governor Delhi MR 1980 SC 674 and Chhotey and Ors. v. Ram Prasad l970 Cr.LJ 948.
36. I have given a very serious and thoughtful consideration to the rival contentions and particularly, the important principles carved out, enunciated and even innovated by the eminent luminaries and Judges of this country in the above cited decisions.
37. I may first have a look at the text of the relevant provisions which have been referred to by the learned counsels for the parties and which have been interpreted and discussed by the various Hon'ble Judges in the above cited judgments:
Section 362. Court not to alter judgment. - 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.
Section 387. Judgment of subordinate Appellate Court. - The rules contained in Chapter XVIT as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable to the judgment in appeal of a court of Sessions or Chief Judicial Magistrate:
Provided that, unless the appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered.
482. Saving of inherent powers of High Court - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give affect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
38. The analogous provision in the Old Cr.PC were contained in Sections 369, 424 and 561-A, Cr.PC. It would be noticed that Section 362 Cr.PC (New), contains the prohibition against the alteration or review of the judgment except to correct a clerical or arithmetical error unless it is provided by this Code or any other law for the time being in force to the contrary. By virtue of Section 387, Cr.PC. the above provisions containing prohibition under Section 362, Cr.PC (New) applies to the appellate Court, also.
39. Section 482, Cr.PC (New) lays inherent powers and expressly mentions that no provisions of the Code of Criminal Procedure would limit or effect inherent powers of the High Court. The rider is that it must be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. According to the well known principles of Interpretation of statutes, the inherent powers provided by the legislature are all pervasive and comprehensive enough to arm the Court for doing justice and to prevent the abuse of any process of Court.
40. Justice is a relative concept and justice, itself, has been innovated by the legislature and jurists in different categories like legal justice, blind justice, social justice, substantial justice, and technical justice to mention only a few species of it which are often debated.
41. Yet another species of Justice is natural justice based on natural rights, inherent rights inborn and inviolable rights of citizens. The right of hearing normally is a creation of statutes because several statutes debar right of hearing but by new horizons expanded by the Apex Court in series of judgments, it has now come to stay as part of our jurisprudence. In criminal jurisprudence, right of the accused to show cause and, hearing, is almost global phenomenon wherever there is the rule of law. I am, therefore, inclined to accept that the various provisions of the Code of Criminal Procedure which, provide for the right both, in respect of the appeal for acquittal and against any notice to enhance the sentence, are most valuable rights which even in the absence of the statutes would have been insisted by the courts on the basis of the natural justice also.
42. In the instant case, Shri Tyagi appearing for the State and the CBI, has not at all challenged the allegations, facts and circumstances pointed out in the application accompanied by the affidavits as pressed and argued by Shri Agrawal so far as the factual aspect is concerned. To enumerate the allegations that, there was confusion on account of the supplementary cause list having been issued for a Single Bench after there being regular cause list for division Bench, has not been controverted either by written affidavits or even by oral arguments. The allegation that Shri J.K. Mathur's name did not appear in the cause list though he was counsel for the petitioner has also not been controverted in any manner what so ever. The allegation that Shri R.N. Khandelwal's junior did not expect the case to come and reach, on that day has also not been controverted. No attempt or effort has been made by Shri Tyagi, to show that the case was earlier there in either in the weekly or mothly or daily cause lists, and the day, on which it was decided was not the first day only.
43. To sum up, the reasons for sufficient cause or bonafide cause of absence of the counsel and the accused, have not been challenged, at all, muchless refuted or rebutted either by written affidavit or by oral arguments.
44. It is true that according to the decision in Dhanna v. State of Rajasthan, referred to above, delivered by C.B. Bhargava, J., in which the rules of this Court had been dealt with in exteno, it is the duty of the counsel to appear & make a request at the beginning of the day when the case was to take up and, further, various duties have been cast in the rules for taking adjournments or for accommodating for a day or so or for some time. I have got no doubt that so far as Shri Khandelwal is concerned, he did not appear even to enter the court room and make a request when he came to know that this has been listed surprisingly and that his client is at Delhi and a senior counsel who would argue the case is not available and the time should be granted. It that would have been done, there would not have been any difficulty in accommodating him and his client more so because, there was notice of enhancement of sentence and the case was of a very serious nature. However, since Shri Khandelwal was engaged only for the accused for watching only and he failed in his duty, the basic premises which the sufficient cause is asserted, being non-appearance of name of Shri J.K. Mathur in the cause list and the confusion caused on account of the supplementary cause list having been issued after night for Single Bench and the earlier cause list being of D.B., still remains. In the background of the fact that the client of Shri Agrawal is from Delhi and there is no allegation by the respondents that this case was shown earlier also in any of the list, it certainly fulfils the requirements of sufficient cause and the bona-fide reason for non-appearance.
45. The question which still requires adjudication is, whether inspite of the sufficient cause and bonafide reason having been made out, this Court can recall the order in a criminal case once a case has been decided on merits.
46. The various decisions have been referred to above in quite some details for providing the background to apply mind. In my opinion, on a very thoughtful consideration of the various decisions, I am inclined to accept the contention of Shri Agrawal that so far as the most important decision in State of Orissa v. Ramchander : 1979CriLJ33 is concerned, which is kingpin of Shri Tyagi's reliance, it cannot be said to be a case where a counsel or an accused was prevented by sufficient cause from appearing in the court. In fact, a reading or re-calling of the entire judgment fails to show, whether it was at all a case of hearing in the absence of the counsel or client. Though nothing is explicit in this judgment on this point, but the impresson which I have, is that the case was decided on merits after hearing both the sides because no where there is grievance of absence of the counsel or client or deprivation of right of hearing. It appears that on merits, a review was sought, and that was held to be not permissible by the Supreme Court. If that is so, the distinction which Shri Agrawal drew, appears to be just and proper, and I cannot take this decision as providing a bar of my jurisdiction to entertain this petition.
47. However, Shri Tyagi has invited my attention to the para 9 of the decision in Sankatha Singh v. State of Utter Pradesh AIR 1962 SC 1238 which reads as under-
It has been urged for the appellants that Shri Tej Pal Singh could order the re-hearing of the appeal in the exercise of the inherent powers which every court possesses in order to further the ends of justice and that Sri Tripathi was not justified in any case to sit in judgment over the order of Shri Tej Pal Singh, an order passed within jurisdiction even though it be erroneous. Assuming that Sri Tej Pal Pal Singh, as Sessions Judge, could exercise inherent powers, we are of the opinion that he could not pass the order of the re-hearing of the appeal in the exercise of such powers when Section 369, read with Section 424 of the Code, specially prohibits the altering or reviewing of its order by a Court Inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing. Sri Tripathi was competent to consider when the other party raised the objection whether the appeal was valid up for re-hearing before him. He considered the question and decided it rightly.
48. In paras 6 and 7 of this judgment, also, the Apex Court emphasised that an appellate Court has no power to review or restore an appeal which has been disposed of Sections 424 and 369 Cr.PC (Old) have been discussed in this judgment, and they have been treated as a bar.
49. There is no doubt that Shri Tyagi's contention finds support in this judgment except that Shri Agrawal is justified in pointing out that this judgment was given in the background of the facts where it has been admitted by the appellant that he had knowledge of hearing. The following sentence pointed out by Shri Agrawal is very significant.
The application for restoration indicates that the appellants knew of the date of hearing.
50. In the present case, admittedly the petitioner is from Delhi and was at Delhi, and since the supplementary cause list changing the Division Bench hearing to Single Bench hearing and the list was sent lately in night as alleged by the petitioner's counsel or early in the morning whatever it may be, presumably there was no time left to inform the petitioner about his case.
51. However, so far as this Court is concerned, there is yet another dimension and horizon in which Shri Agrawal has taken me for considering, whether a litigant should suffer on account of omission or mistake of a court. Yet another dimension which Shri Agrawal has given, is that the view taken by their Lordships of the Apex Court in 1962 has not been adhered to by the Supreme Court in 1972 when the Supreme Court in Swarth Mahto v. Dharmdeonarain : 1972CriLJ879 in a criminal case, held that on account of improper publication of cause list where name of the counsel was not mentioned, there should be re-hearing of appeal. The conviction was set aside in that case by the Apex Court and it was ordered that the application for re-hearing of appeal in his presence deserves to be allowed.
52. The facts of Swarth Mato's case (supra) are similar to the present ease. In that case, the name of the counsel was also not in the cause list and the criminal appeal was heard and decided on merits against the accused by which the accused was convicted. The accused then applied to the High Court for re-hearing the appeal in his absence after recalling the earlier order passed in the absence of the counsel, by which the appeal was allowed, of the complainant, and the accused was convicted for the offence under Section 420, IPC and sentence to undergo 2 months; R.I. and to pay a fine of Rs. 500/-. The accused came to know of this order subsequently and when moved an application for re-hearing of the appeal in presence of the accused; that was dismissed on January 24, 1969.
53. It was at this stage that the accused filed a special leave petition and then it was granted. In para 6 of this judgment, the Apex Court has in terms set aside the order of the High Court rejecting the application for re-hearing of the appeal in the presence of the accused. A reading of para 6 of this judgment would suffice to notice that their Lordships of the Supreme Court observed that the learned Judge (High Court Judge) has come to the conclusion that the application for re-hearing of the appeal was not maintainable on the ground that no opportunity had been denied to the appellants of being heard; then their Lordships examined sufficiency of the cause and observed that if by mistake of the court or its office, the accused were not informed of the date of hearing, it will be unreasonable to hold that an opportunity had been given to them, merely because notice had been given to them, merely because notice had been issued to appeal some 2-1/2 years earlier. It was further observed that the very idea behind publishing the cause list is to give notice to advocates and the parties that the case in which they were concerned was going to be heard on or after a particular day.
54. It would be obvious from the above that their Lordships of the Apex Court did not approve of the High Court rejecting the application for re-hearing. If that is so, Shri Tyagi wanted me to rely upon what the Supreme Court has done in the similar circumstances. Obviously, it is now clear that whatever might have been said in 1962, their Lordships of the Apex Court in terms have set aside the order of the High Court on the precise ground that when in the cause-list even in a criminal case, hearing was made on merits in the absence of the counsel, then the High Court should have allowed re-hearing and after re-calling when it was brought to the notice of the Court. This is that Shri Agrawal wants me to do on this ground, apart from other facts which have been narrated repeatedly above, Shri J.K. Mathur was not there, who is a senior counsel arguing the criminal cases and who was supposed to argue criminal case this time on behalf of the petitioner accused and that, there was confusion about the cause-list even though no inherent defect can be found out in the system of cause list of this Court, Shri Tyagi has rightly pointed out that the system of the cause-list had approval of the Bar and, therefore, they can hardly take objection to it. Be that as it may, a litigant's real grievance which is genuine and bonafide that there was confusion and that there was absence of name of Shri J.K. Mathur in the cause list, apart from other facts, as mentioned above, certainly constitute a just demand for re-hearing of the appeal in presence of the counsel for the petitioner-accused, and I have held it to be so in earlier part of my this judgment.
55. Now that, the view taken by the Supreme Court in 1962, was not reiterated in 1972, Shri Tyagi cannot expect from me to follow that judgment when in terms the Apex Court in allowing the application and setting aside the order passed in absence of the counsel, observed that it should have been allowed. It is not necessary now to further discuss the decision of the Supreme Court in Sankattha Singh v. Slate of U.P. : AIR1962SC1208 , but, I must say that the principle that a litigant shoul not suffer for the mistake of the court or its office, is a salutary principle always reiterated by the Apex Court of this country. The nearest case on the point which fortifies the above view, relates to an election matter where by the mistake of the High Court and its office, the security was accepted in wrong head and the requirements imposed by the Representation of People Act were not complied with, therefore, the High Court rejected the election appeal. The Apex Court did not approve of the High Courts rejecting the appeal after accepting the security and thus depriving a litigant of valuable right on account of its own mistake. This was said in the decision in Kumaranand v. Brij Mohan : [1965]1SCR116 .
56. In view of the above, now I would not enter into futile exercise of discussing all the various judgments of the High Courts because no one can be more pious than Pope himself. When the Apex Court itself, in series of decisions have maintained and proclaimed what is ultimately known as principle of natural justice that accused must have a right of hearing before he is condemened and that the sentence should not be enhanced when a notice is not given for hearing and that no person should be condemned behind his back. This principle much more applies in the criminal jurisprudence because in the matter of contract, property only rights which results in depriving of some money or property or jurisdiction of property rights, whereas in criminal jurisprudence, the life and the liberty of a person is always jeoparadised and at stake and, therefore, the basic human rights which are inborn, inviolable, natural and which have been codified in the Code of Criminal Procedure and also given place of prime importance under the Constitution of India by the Preamble as well as enactment of Articles 21 and 22 of the Constitution should be respected. The decision in Swarath Mahto v. Dharmdeo : 1972CriLJ879 is a landmark in that direction.
57. Yet another principle which is equally important is that for the mistake of the office of the High Court, a litigant should not suffer has again to be innovated with equal importance as emphasised in Smt. Lachi Tewari v. Director of Landrecords : AIR1984SC41 which again is a land mark in the series of important and crucil classical judgments of the Supreme Court.
58. I have got no hesitation in now coming to the conclusion by deduction from the above decisions that whatever clouds there were on the jurisdiction of this Court earlier by the decision in Sankatha Singh v. State of U.P. : AIR1962SC1208 , have been cleared by the decision in Swarth Mahto v. Dharmdeo : 1972CriLJ879 in order to secure ends of justice and to prevent abuse of process of the Court, I not only can but I should acting as a watchdog of the Constitution and to respect law of the land, and rule of law, permit the petitioner to have a re-hearing of all the three appeals after recalling the judgment dated 30th October, 1985.
59. Before parting with this judgment, I must mention that the petitioner did not file the certified copy which he should have done. Similarly, since there were three cases, it would have been better if three applications should have filed. However as rightly pointed out by Shri Agrawal that the dictum of law laid down by V.R. Krishana Iyer, J., in Raj. Kapur v. Delhi Administration : 1980CriLJ202 comes to his rescue because the Supreme Court has come out heavily against the rejection of the appeal and revision on such grounds that the certified copy of the impugned order was not endlosed as required under the relevant rules of that court, when the original order along with all the record was before the High Court. The Apex Court in classical of Krishna Iyer, J., has observed as under:
A besetting sin of our legal system is the tyranny of technicality in the name of finicial legality, hospitably entertained sometimes in the halls of justice. Absent orientation, justicing becomes 'computering' and ceases to be social engineering.
I, therefore, condone the requirement of filing of certified copy and filing of separate applications in spirit of social justice and substantial justice which are both, twins of natural justice.
60. The result is, that this application is allowed. The judgment dated 30th October, 1985 is re-called.
61. A perusal of the record would show that the accused-petitioner was not available in court and warrant of arrest was issued for calling him because notices were sent quite for sometime but, were not served on account of either evasion or avoidance. It would, therefore, be in the interest of justice that the appeals should be listed for re-hearing immediately. Shri Agrawal submits that it would take some time to prepare the case and I think it to be genuine and just because it is a complicated matter of voluminuous record. It is, therefore, directed that the accused-petitioner would be retained and detained in jail during the pendency of the appeal till further orders and the order of bill passed earlier by this Court is cancelled. The petitioner has moved a fresh bail application along with this petition but the same cannot be allowed for the time being, to ensure re-hearing of the appeals which should be heard within this month, on February 14, 1986.