Judgment:
Garg, J.
1. This misc. petition under Section 482 Cr.P.C. has been filed by the petitioner-Garib Ram (hereinafter referred to as added accused petitioner) for recalling the order dated 16.1.2002 passed by this Court in S.B. Criminal Revision Petition No. 282/2000 by which after allowing the application dated 30.3.2000 filed under Section 319 Cr.P.C. on behalf of the prosecution, added accused petitioner was ordered to face trial for the offence under Sections 148, 302/149 (or 302), 326/149 (or 326), 325/149, 323/149 and 307/149 IPC alongwith other accused persons and added accused petitioner was summoned through bailable warrant of Rs. 10,000/-.
2. 1 have heard the learned counsel appearing for the added accused petitioner, learned counsel appearing for the complainant and the learned Public Prosecutor.
3. The main grievance of the added accused petitioner is that the judgment, which was delivered by this Court on 16.1.2002 in State v. Mangilal and Ors. (1), was passed in his absence as no notice of that revision petition was served on him.
4. In the office report dated 21.10.2000 in S.B. Criminal Revision Petition No. 282/2000, there is a clear cut mention of the fact that notices of non-petitioners No. 1 to 5 and 8 received duly served and in that revision petition, added accused petitioner is shown as non-petitioner No. 8. On the basis of that office report, this Court proceeded further and heard the Public Prosecutor in absence of his counsel.
5. During the course of argument, it has been pointed out by the learned counsel appearing for the added accused petitioner that notice which was served on him was that of S.B. Criminal Revision Petition No. 283/2000 and not that of S.B. Criminal Revision Petition No. 282/2000 and the copy of the notice which was served on him is Annex. 1. From perusing the notice (Annex. 1), it further appears that he was required to appear in this Court on 21st August, 2000 either personally or through his counsel in S.B. Criminal Revision Petition No. 283/2000. He further submits that in pursuance of the said notice (Annex. 1), he filed power of his counsel Shri Sandeep Mehta on17.10.2000 mentioning therein S.B. Criminal Revision No. 283/2000 and since S.B. Criminal Revision No. 283/2000 was already decided on 25.7.2000, therefore, the said power remained in the once without tagging with any of the file. Thus, it is submitted that because of the above facts, nobody appeared on behalf of the added accused petitioner in S.B. Criminal Revision Petition No. 282/2000 and, therefore, the arguments in that revision petition were heard in his absence on 9.1.2002.
6. In the above facts and circumstances, it was prayed by the added accused petitioner that the judgment dated 16.1.2002 passed by this Court in S.B. Criminal Revision Petition No. 282/2000 may be recalled and that revision petition may be restored to its original number and the same may be ordered to be decided afresh after hearing the added accused petitioner.
7. So far as the factual position is concerned, the same is not controverted on the following facts :-
(1) That in S.B. Criminal Revision Petition No. 282/2000, there was a reporl by the office that added accused petitioner was served with the notice, but actually he was not served with the notice of that revision petition and he was actually served with the notice of S.B. Criminal Revision Petition No. 283/2000.
(2) That this Court proceeded further taking into consideration that the added accused petitioner was served with the notice of S.B. Criminal Revision Petition No. 282/2000.
(3) That added accused petitioner was actually served with the notice S.B. Criminal Revision Petition No. 283/2000 and for giving appearance in that revision petition, a Vakalatnama was filed on his behalf on 17.10.2000.
(4) That since S.B. Criminal Revision Petition No. 283/2000 was decided earlier on 25.7.2000, therefore, that Vakalatnama was not tagged with any file.
(5) That the conclusion of the above discussion is that actually added accused petitioner was not served with the notice of S.B. Criminal Revision Petition No. 282/2000 in which the judgment dated 16.1.2002 was passed.
8. The next question that arises for consideration is whether the judgment, which is given in absence of any person or his counsel but the case was decided on merits, can be recalled by the court in its inherent power under Section 482 Cr.P.C. ?
9. The above question stands answered by the Full Bench decision of this Court in Habu v. The State of Rajasthan (2). In that case, the following question was formulated and referred to by the learned Single Judge of this Court to the Full Bench for answer :-
'Whether the judgment given in absence of the appellant or his counsel but the case decided on merits, can be recalled by the court in its inherent powers under Section 482 Cr. P.C.'
10. The above question was answered by the Full Bench in the following manner ;-
'(i) That the power of re-call is different than the power of altering or reviewing the judgment,
(ii) That powers under Section 482 Cr.P.C. can be and should be exercised by this Court for recalling the judgment in case the hearing is not given to the accused and the case falls within one of the three conditions laid down under Section 482 Cr.P.C.'
11. In view of the decision of the Full Bench of this Court in Habu's case (supra) and looking to the fact that when the S.B. Criminal Revision Petition No. 282/2000 was heard and decided, the added accused petitioner was not served with the notice of that revision petition and that right of hearing is very important right and nobody should be deprived of that right and in the present case, since the order dated 16.1.2002 was passed without hearing the added accused petitioner or his counsel, therefore, this Court feels that power under Section 482 Cr.P.C. should be exercised for recalling the judgment dated 16.1.2002.
12. For the reasons stated above, this misc. petition under Section 482 Cr.P.C.filed by added accused petitioner Garib Ram is allowed and the judgment dated16.1.2002 passed by this Court in S.B, Criminal Revision Petition No. 282/2000 isrecalled and that revision petition 282/2000 is restored to its original number and thesame would be decided afresh after hearing learned counsel appearing for the addedaccused petitioner.
13. Before parting with this order, I would like to mention here that since the judgment dated 16.1.2002 in S.B. Criminal Revision Petition No. 282/2000 was delivered by me on merits, therefore, it would not be proper for me now to hear again that revision petition afresh, as I have already expressed my opinion in that judgment. Hence, that revision petition be now listed for hearing before the Bench of which I am not a Member.