Habu Vs. State of Rajasthan - Court Judgment

Dave, J.

1. This larger Bench has been constituted by the orders of the Chief Justice, dt. July 3, 1986, to answer a question referred to larger Bench by our brother Hon'ble G. K. Sharma, J. vide his order of reference, dated May 28, 1986 wherein he has framed the following question :

'Whether the judgment given in absence of the appellant or his counsel but the case decided on merits, can be re-called by the Court in its inherent powers under Section 482, Cr.P.C.'

2. The petitioner, Habu, had filed a revision petition in this Court in the year 1978 challenging his conviction and sentence. This revision-petition was admitted on Oct. 25, 1978, and was ordered to be heard in due course on May 26, 1979. Thereafter it came up for hearing on Jan. 11, 1985 before Hon'ble Sharma, J. The accused petitioner who was on bail neither appeared in person npr his counsel was present and Hon'ble Sharma, J. after hearing the learned Public Prosecutor dismissed the revision-petition on merits. The petitioner thereafter moved an application on Mar. 14, 1986 under Section 482, CnP.C. wherein it was prayed by him that he had engaged a lawyer Shri Manak Chand Jain who did not inform him of the date of hearing and as such he himself also did not appear and made arguments on his behalf. It was a surprise to him when a warrant of arrest came and he was arrested, then he learnt that his revision petition has been dismissed. He wrote a letter to his counsel but failed to get any reply; hence he engaged another lawyer to find out the position and moved this application after more than a year of the passing of the judgment. This application was heard by Hon'ble Sharma, J. who passed the order of reference. He stated in his judgment, 'the case of Dhanna, (AIR 1963 Raj 104) decided by Hon'ble Bhargava, J. (C.B.) has been referred by Hon'ble G. M. Lodha, J. and he has tried to distinguish it. This case is identical to the present case and I perfectly agree with the principle laid down by Hon'ble Bhargava, J. but Hon'ble Lodha, J. (G.M.) in Jacob's case, 1986 Rajasthan LR 506 had different view, not agreeing with the views of Hon'ble Bhargava, J., in case of Dhanna v. State (AIR 1963 Raj 104)'.

3. Before the reference came up for hearing we thought it proper to issue a general notice inviting assistance of learned members of the Bar to assist us as intervenors because in our opinion the matter was of general interest and importance. Several learned counsel whose names have been mentioned above intervened and addressed us.

4. Shri Satish Chandra, who was counsel in C. Jacob's case decided by Hon'ble Lodha G. M. J. to which reference has been made by Hon'ble Sharma, J. in his order of reference, raised preliminary objections and submitted that the order of reference itself is bad and there is no necessity to answer the question referred to the Full Bench. His submission is that Hon'ble G. K. Sharma, J. in his order of reference has already agreed with the principle laid down by Hon'ble Bhargava, J. and has further held that 'in the present case the revision petition was, no doubt, disposed of with the assistance of the learned Public Prosecutor, but keeping in view that more assistance would have been given by the learned counsel for the petitioner also, I am of the opinion that in view of Shaukin Singh's case the petition under Section 482, Cr.P.C. can be accepted'. Thus, when he has already arrived at a conclusion and has agreed with the view taken by Hon'ble Bhargava, J. and also has arrived at a finding in view of the decision of their Lordships of the Supreme Court in Shaukin Singh's case there coutd not have been any reference as there is a definite expression of opinion. He submits that once a Court arrives at a conclusion that the petition under Section 462, Cr.P.C. can be accepted in view of decision in Shaukin Singh v. State of Uttar Pradesh, AIR 1981 SC 1698 no jurisdiction vested in him to refer the matter to a larger Bench. It is further submitted that the reference is wholly uncalled for as he has arrived at further finding that the case of Dhanna v. State of Rajasthan, AIR 1963 Raj 104, is more or less similar to the present case.

5. His another objection about maintainability of the reference is that from the language of the question framed by learned Judge is such which does not include the absence of both, i.e., the appellant and his counsel, as the learned Judge has used the word 'or' in the question instead of 'and', therefore, the learned Judge contemplates a position where absence is of the appellant or his counsel which means absence of either of them or presence of only one of them and such a situation having not been the subject-matter of decision in Dhanna's or Jacob's case, the question framed cannot be answered in vacuum. He, therefore, submitted that because of these preliminary objections, point, referred to, need not be answered.

6. We have given our thoughtful consideration to the preliminary objections. In the instant case the accused who filed the revision petition in the year 1978 and was on bail since then. His revision petition was dismissed by the learned single Judge vide his order dated January 11, 1985, and his sentence of six months' rigorous imprisonment and a fine of Rs. 200/-, in default of payment of fine two months' simple imprisonment was maintained. Compliance of this order was issued by the High Court on Jan. 11, 1985. Thereafter the accused was arrested, in pursuance of the warrants issued by the trial Court, for custody of the accused-petitioner to serve out the remaining sentence, as he had also been in custody for about a month during trial and in between the period his appeal was dismissed by appellate Court and his bail was granted by this Court in revision-petition. The accused when learnt that the revision-petition has been dismissed filed an application for recalling of the judgment on Mar. 11, 1986, on which this reference has been made to Full Bench on May 28, 1986. It has been listed before us after obtaining orders from Hon'ble Chief Justice on July 21, 1986, when the case came before us, we were informed that the accused has served out the sentence passed against him. This is an extremely regrettable situation that a poor rustic villager has not been able to get justice for want of timely proper legal assistance. We are called upon to do this academic exercise, which, of course, is of great importance, in a case, where we are unable to provide real justice to the man who knocked the doors of this Court in expectation of justice. Hon'ble Sharma, J. in his order of reference though opined that he is of the opinion that in view of Shaukin Singh's case (AIR 1981 SC 1698) petition under Section 482, Cr.P.C. can be accepted but it appears that no application was moved before him for suspending the sentence of the accused or to release him on interim bail under Section 482, Cr.P.C. itself till the Full Bench answers the reference and he too did not do so suo motu. I am at a loss to understand when his Lordship Hon'ble Sharma, J. took the pains of dictating judgment during summer vacations got it delivered through one of us who was vacation Judge on May 28, 1986, then why it took one month in reaching the file from the Court to section and then was placed before Hon'ble Chief Justice on July 3, 1986, why no efforts were made for getting the case listed earlier, and why it was not brought to the knowledge either of the Chief Justice or before us when we fixed the date and told the Deputy Registrar to list this case on July 21, 1986, that the accused is in jail. We expect from the registry that the record must disclose whether the accused is in jail or not, when it is placed before the Court. It must appear from the title cover. Thus in charge of stamp reporting must ensure that in the cause title as well as on the file cover it must be shown as to what is the position of the accused at the time when the case is presented. Had the Registry in this case taken proper care to see that there is mention that the accused is in jail or had the learned counsel brought the fact to the notice of Hon'ble Sharma, J., possibly the accused would have been benefited of being on interim bail during the pendency. The draft of the entire miscellaneous application only shows one line in para 7, 'that when the accused has been arrested, then he could know that his case has been dismissed.' Besides this there is not a word in the entire record of the case as to since what date the accused is in jail, in which jail and on what date he had surrendered. We find an affidavit filed by the accused sworn in Jaipur on Mar. 7, 1986 where he has accepted the correctness of the facts mentioned in application, dt. Mar. 11, 1986 which has been presented on Mar. 3, 1986. We are at a loss to understand when an application has been typed and drafted on March 11, 1986 how it could be sworn before the Oath Commissioner on Mar. 7, 1986. We asked the learned counsel for the petitioner, Shri Kasliwal, to explain the anomaly and the circumstances in which the proper facts have not been placed before the Court and which has resulted in making a false record in this case. Mr. Kasliwal thereupon fifed an application signed by Shri Pradeep Chaudhary the learned counsel who had brought the case to him from Ajmer. According to this application the accused was arrested on Feb. 17, 1986 and has been released on July 16, 1986 having served out the entire sentence awarded to him by this Court. He has also stated in the application that he got the affidavit verified on Mar. 7, 1986 by Oath Commissioner at Jaipur identifying the accused who was already in Central Jail, Ajmer and as there were typing errors one page was got re-typed on Mar. 11, 1986, and signature of Oath Commissioner taken. He has submitted that these mistakes have been committed by him as he is a new entrant to the Bar and was not knowing the procedure. He has expressed his regrets and has prayed that looking to his inexperience and future in the profession he may be excused. It is unfortunate that due to the negligence and the illegal procedure followed by the learned counsel the accused has served out the sentence and the facts could not be properly placed on the record. The manner in which the affidavit has been filed and has been got sworn in is unknown to the fair practice and the law concerning swearing in of the affidavits. Neither the Oath Commissioner nor the learned counsel has acted in accordance with law and in fact it amounts to making a false record. However, looking to the extreme youth of the learned counsel and that the Oath Commissioner is also in the evening of his life, we refrain from ordering the prosecution or reference of the matter to the Bar Council suo motu but sound a note of warning and express our strong displeasure on their conduct.

7. Coming to the preliminary objection it is worthwhile to reproduce Rule 59 of the High Court Rules which reads as under :

'Rule 59. Reference of a case to a larger Bench-- The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question or questions of law formulated by a Bench hearing a case. In the latter even the decision of such Bench on the questions so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question or questions and dispose of the case after deciding the remaining questions, if any, arising therein.'

8. On a plain reading of the aforesaid rule it is obvious that this bench is called upon to determine only the question formulated by Hon'ble S. Sharma, J. We do not find any other rule in the High Court rules which gives power to Hon'ble the Chief Justice to constitute a Bench of two or more Judges for deciding a case or any question referred to. The argument of the learned counsel is that reference could not be made to this Bench as the learned Judge himself has agreed with one of the views taken by this Court and once he was in agreement the reference was incompetent. We are unable to accept this contention because despite the fact that learned Judge accepted the view in Shaukin's case (AIR 1981 SC 1698) yet he had a right to refer the matter to Hon'ble the Chief Justice for referring it to Full Bench, It is for the Full Bench to consider thereafter whether the question framed has to be answered in affirmative or negative or not to answer at all. It is true that the scope of the Full Bench is only to the extent the rule provides, as has been held by the Full Bench of this Court in State of Rajasthan v. Shamlal, AIR 1960 Raj 256, where this Court held :

'It appears to me, therefore, that Rule 59 cannot be exhaustive of the powers which the Chief Justice must process in regulating the functioning of the Court to constitute appropriate Benches for the decision of such questions which may, from time to time, necessarily arise.'

Since Hon'ble Sarjoo Prasad, J. who was then Chief Justice was himself presiding over the Bench he further held as under

'Since I have the honour of presiding myself over this Speical Bench constituted for the purpose, I think that there can be no valid objection to my enlarging the scope of the enquiry in the present case, and formulating the auxiliary question in the manner that I have done, so that this Special Bench of three Judges may conveniently address itself to this important question of law bearing on the interpretation of Article 295 of the Constitution, and the decision given by this Court may be binding as an authority in future.'

9. The word 'case' in Rule 59 again came up for consideration before the Division Bench of this Court in Umrao Singh Dhabariya v. Yashwant Singh Nagar, AIR 1970 Raj 134. This Court held as under :

'Rule 59 of the High Court Rules for Rajasthan contemplates a reference to a larger Bench to decide a case or any question or questions of law formulated by a Bench. The word 'case' may be used in a narrow sense to imply the whole case or in a wider sense to connote a part of the case or to any state of facts requiring judicial determination. If the wider view is adopted, the decision on issue by the single Judge before the reference to a larger Bench remains a case finally decided and required no reopening and the larger Bench need only decide the controversy remaining alive at the time of the reference. If, on the other hand, a narrower view is adopted, then evidently the Bench has to apply its mind to all the controversies, arising in the case including those earlier decided.

The Court felt inclined to adopt the narrow view of the word 'case' in the rule and to hold that a larger Bench should decide the case as a whole including the controversy already decided by the single Judges.'

Reading' the rule coupled with the aforementioned two cases we are of the opinion that nothing prevents us from answering the question referred to us by the learned single Judge despite the facts that he has already agreed with one of the views.

10. The another objection is that there is no controversy between Shaukin Singh's case (AIR 1981 SC 1698) and Dhanna's case (AIR 1963 Raj 104) and, therefore, the reference is incompetent. We will consider this argument while considering the merits of the reference as the question whether there is any controversy or there is difference of opinion can only be answered after we go through both the cases and in light of the arguments advanced before us by various learned counsel. Regarding another objection about the maintainability of the reference for using the word 'or' suffice it to say that in the facts and circumstances in which the reference has been made neither the appellant nor his counsel was present and obviously the word 'and' can be read instead of the word 'or' as the question which has been referred to us relates to those cases where a case has been decided on merits in the absence of the party and/or counsel representing the party. There is no substance in this argument and we overrule the preliminary objections and proceed to examine the points referred to us, namely :

'Whether the judgment given in the absence of the appellant or his counsel, but the case decided on merits, can be re-called by the Court in its inherent powers under Section 482, Cr.P.C.'

11. The aforesaid question has been raised in view of the previsions contained in Section 362 Cr.P.C. which corresponds to Section 369 of the old Cr.P.C. Section 362, Cr.P.C. reads as under:--

'Section 362, Cr.P.C. 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.'

12. A plain reading of the aforesaid section puts a complete bar for altering or reviewing of judgment or a final order on merits and the only power given to the Court is that it can correct a clerical or arithmetical error. But the question posed before us is whether in these circumstances where the judgment or the final order has been passed without affording an opportunity of being heard to the accused-appellant.

13. Shri S. C. Agarwal submitted that in an application under Section 482, Cr.P.C. this Court has ample powers to re-call its judgment as recalling is not a bar under Section 362, Cr.P.C. He submits that the provisions of Section 482, Cr.P.C. are wide enough to meet any eventuality and if the Court is satisfied that injustice has been done to a person it can always recall its judgment in order to secure the ends of justice. It is submitted that the ban imposed under Section 362, Cr.P.C. is about reviewing or altering the judgment, i.e., interfering with the findings which had been given in the judgment but when it is re-called it means complete abrogation as if there is no judgment at all and, therefore, this Court has to make a distinction between review, alter and re-call. He submits that it is mandatory to give an opportunity of hearing to an accused person in the Court and he should not be condemned unheard. He referred to proviso (b) to Sub-section (1) of Section 384, Cr.P.C. and submitted that no appeal can be dismissed except after giving the appellant a reasonable opportunity of being heard and this means that the presence of the appellant or his counsel is a condition precedent. He submits that if Section 362, Cr.P.C. is given a narrow connotation, then it will make the provisions of Section 384, Cr.P.C. redundant. He referred to a decision reported in T. Somu Naidu, AIR 1924 Mad 640 where the Court re-called the earlier judgment and directed the case to be heard afresh. This case came up on a reference made by learned single Judge and a similar question was raised as in the instant case. Their Lordships after considering the various authorities held as under :

'that in exceptional circumstances the judgment has to be re-called since it is either void ab initio or is otherwise null and void. It was held that sound judicial view is that reasonable opportunity for the accused to be heard is essential condition precedent to the exercise of jurisdiction under Section 439, Cr.P.C. when the Court is considering the question of enhancing the punishment inflicted on him. The Court further held that where the condition laid down by law as precedent and requisite to the bearing of a case are not observed the case has to be re-heard and it does not amount to review or revising the order.'

14. Reference was then made to Muhammad Sadiq v. The Crown, AIR 1925 Lah 355 where the scope of Section 561(A) of the then Cr.P.C. which corresponds to Section 482, Cr.P.C. was considered. It was held that 'where an appeal has been dismissed without the appellant or his pleader being given a reasonable opportunity of being heard in support of the same, the order refusing the appeal must be held to have been passed without jurisdiction and the Court has inherent power to make an order that the appeal should be re-heard after giving the appellant or his counsel a reasonable opportunity of being heard in support of the same.' In this case their Lordships considered the various cases before coming to the conclusion that the Court has a power to rehearing the case. Reference was then made to Emperor v. Shivadatt, (1928) 111 Ind Cas 573 : (AIR 1928 Oudh 402) wherein it has held as under :

'Where owing to counsel's carelessness in not appearing in the Court at the time when a case is called on for hearing, his client's case goes unrepresented and an ex parte order is passed, the High Court has jurisdiction under Section 561A of the Cr.P.C. to entertain an application to re-hear the matter, if, in its discretion, it considers, it necessary to do so in order to secure the ends of justice.'

15. Reference was then made to Sangam Lal v. Rent Control and Eviction Officer, Allahabad, AIR 1966 All 221 a Full Bench decision wherein interpretation to the High Court Rules was given and it was held as under :

'There is power of review both in cases where judgment has been delivered but not signed and cases in which judgment has been delivered, signed and sealed. In the former case, the power to alter or amend or even to change completely is unlimited provided notice is given to the parties and they are heard before the proposed change is made, while in the latter case the power is limited and review is permitted only on very narrow grounds. Hence a judgment which has been orally dictated in open Court can be completely changed before it is signed and sealed provided notice is given to all parties concerned and they are heard before the change is made'.

In our opinion this judgment has no bearing on the facts of this case as the point involved therein was absolutely different. The Court was only considering whether a judgment which has been delivered in open Court but not signed can be changed. Hence as mentioned above this case is neither applicable on facts nor on law. Reference was then made to Swarth Mahto v. Dharmdeo Narain Singh, AIR 1972 SC 1300 which is a case of improper publication of the cause-list where neither the name of the respondent nor his advocates were properly mentioned. In this case in Patna High Court when an appeal against acquittal came up for hearing after 2 1/2 years after issuance of notice neither the name of the accused-respondent nor his advocate appeared in the cause-list and the State appeal was allowed ex parte. Their Lordships of the Supreme Court held that 'when the names of the accused-respondent and his advocate did not appear in the causelist resulting in conviction of the accused without hearing his counsel it could not be said that the accused was given reasonable opportunity of hearing and the application filed by him for re-hearing of appeal afresh by the High Court was allowed by their Lordships of the Supreme Court'.

16. Reliance was then placed on Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh, (1975) 3 SCC 706 : (AIR 1975 SC 1002) wherein their Lordships held as under :

'S. 561-A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must therefore exercise its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked.'

17. Reference was made to Galos Hirad v. The King, AIR 1944 PC 93. In the aforesaid case their Lordships of the Privy Council were considering the scope of Poor Persons Defence Ordinance and were further considering whether an appeal decided in the absence of a lawyer should be re-heard or not. Their Lordships held as under :

'The importance of persons accused of a serious crime having the advantage of counsel to assist them before the Courts cannot be doubted by anybody who remembers the long struggle which took place in this country and which ultimately resulted in such persons having the right to be represented by counsel; see Holdworth History of English Law, Vol. 9, p. 226, et. seq. This is a much stronger case. Just as a conviction following a trial cannot stand if there has been a refusal to hear the counsel for the accused so it seems to their Lordships, an appeal cannot stand where there has been a refusal to adjourn an appeal in which the appellant was entitled as of right to be heard by a counsel assigned to him by the Govt. who was unable, without any default on his part to reach the Court in time to conduct the appeal. The result is that the appeal to the Protectorate Court of Appeal which appears to have been properly lodged has not been effectively heard, The present appeal must therefore be allowed. Steps must be taken to restore the appeal for hearing either with Mr. Manilal or some other advocate properly assigned to the appellants under circumstances which will enable him to conduct the appeal. Their Lordships will humbly advise His Majesty accordingly'.

18. Reference then was made to Ganesharam v. State of Raj., 1968 Raj LW 496 : (1968 Cri LJ 1672) where at the time of disposal of the main case provisions of the Probation of Offenders Act were not brought to the notice of the Court and the same were brought to the notice by way of an application under Section 561-A Cr.P.C. His Lordship Hon'bte Tyagi held as under :

'S. 561-A Cr.P.C. envisages three circumstances in which the Court can exercise that power, namely, when it is necessary (1) for securing the ends of justice, (2) for preventing abuse of the process of Court, and (3) to give effect to any order under this Code.

It is now well settled that this section doesn't confer any power on the High Court. It only saves such inherent power which the Court possessed before the Cr.P.C. was enacted. If such a power is so included it can be exercised for the purposes mentioned in the Section and it would be a matter for determination by the Court in each individual case whether the circumstance obtaining in that case makes out that purpose and makes inherent on the Court to exercise such a power to achieve the objects mentioned in the section'.

19. Reference was made to Kailash Nath Lahiri v. Shamilal Khushaldas and Bros. Pvt. Ltd., (1977 Cri LJ 1520) (Goa) wherein it was held as under :

'High Court has inherent power to set aside order dismissing a revision for default of appearance.

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. The alteration or review pre-supposes the continuation of the initial order and the effectuation of some changes in it, whereas the setting aside of the order means the complete abrogation of it. There is therefore, no specific bar contained in Section 362 or in any other section of the Code against the setting aside of an order of dismissal for default. It follows that the inherent powers of High Court are not taken away as far as the setting aside of the orders of dismissal ex parte are concerned'.

In totality Mr. Agarwal's contention is that this Court has ample power to re-call its judgment/order in case it is satisfied that one of the three essentials of Section 482, Cr.P.C. so warrants.

20. Mr. Ravi Kasliwal referred to Deepak Thanwardas Balwani v. State of Maharashtra, (1984) 1 Crimes 736 : (1985 Cri LJ 23) wherein it was held as under :

'In its inherent powers as provided under Section 482, Cr.P.C., 1973, the High Court can review or revise its judgment if such a judgment is pronounced without giving an opportunity of being heard to a party who is entitled to a hearing and that party is not at fault. For the mistake of the Court, a party cannot suffer'.

He also referred to Raj Narain v. The State, (AIR 1959 All 315) which is again a Full Bench decision and where the High Court's power to revoke, review, re-call or alter its own earlier decision in a criminal revision and rehear the same came up for consideration. The question referred to the Full Bench was whether this Court has power to revoke, review, re-call or alter its earlier decision in a criminal revision and re-hear the same and if so in what circumstances. Their Lordships answered the question as under :

'1. that this Court has power to revoke, review, repcall or alter its own earlier decision in a criminal revision and re-hear the same.

2. that this can be done only in cases falling under one or the other of the three conditions mentioned in Section 561-A, namely :

(i) for the purpose of giving effect to any order passed under the Code of Criminal Procedure,

(ii) for the purpose of preventing abuse of the process of any Court,

(iii) for otherwise securing the ends of justice.

Reference answered accordingly'.

In Makkapati Nageswara Sastri v. S. S. Satyanarayan, AIR 1981 SC 1156 their Lordships held that the view taken by the High Court that in a revision party was not entitled to be heard as of right and though the counsel did not appear due to non-appearance of his name in the cause-list yet decided the revision ex parte. Their Lordships held that the view taken by the High Court is manifestly contrary to audi alteram partem rule of natural justice which was applicable to the proceedings before the High Court.

21. Mr. A. K. Bhandari submitted that there is a great difference between the word 'review' or 're-call'. He submitted that what is a bar under Section 362, Cr.P.C. is a review or alteration but not the re-call. He referred to Chambers Dictionary and submitted that review means a re-consideration, a critical examination, to look back etc. while re-call means to call back, to revoke etc. which means that in one there is an examination of the judgment and then on viewing the same from a different angle it has to be reviewed. While in another it is not only abrading it but to revoke it as a whole as if everything is obliterated from the record. In one earlier judgment remains on record with correction of the errors while in another it completely goes out. Therefore, what is contemplated in Section 482, Cr.P.C. is re-calling the judgment and not reviewing the same. In other words it is submitted that Section 362, Cr.P.C. bars the review or alteration but not the re-calling. He submits, that in Swarth Mahto v. Dharmdeo, (AIR 1972 SC 1300) their Lordships were conscious of the phraseology and have used the word 're-hearing' and not 'reviewing'. It is further submitted that in all other Courts except High Court the presence of an accused on each date of hearing is a condition precedent, while in the High Court it is not so except that according to Section 385, Cr.P.C. when the appellate Court does not dismiss the appeal summarily it has to cause notice of the time and place at which such appeal will be heard to be given to the appellant or his pleader and by the High Court Rules the notice of time and place is given through cause-list. He, therefore, submits that if either the name is wrongly printed or omitted to be printed or the description of the case is erroneous or for any other reason there is defect in the list, it is non-compliance of Section 385, Cr.P.C. and in case the appeal is heard in non-compliance of Section 385, Cr.P.C. then it is not hearing at all and it violates the principles of natural justice as well.

22. Mr, Subhash Zindal relied on the observations made by their Lordships of the Supreme Court in State of Orissa v. Ram Chandra Agrawal, AIR 1979 SC 87 where it was observed :

'That this Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise the order made by this Court.'

In our opinion this case has a limited bearing and will be considered at an appropriate place on a different point i.e. whether the provisions of Section 561-A, Cr.P.C. can be invoked for exercise of powers which are specifically prohibited by the Court.

23. Mr. Bapna submitted that Section 482, Cr.P.C. does not confer any new jurisdiction on the High Court. It is inherent on the Court and whenever this Court feels that injustice has been done it has to invoke that jurisdiction which is inherent in every Court. He places' reliance on Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiraial, AIR 1962 SC 527 wherein their Lordships of the Supreme Court in reference to Section 151, C.P.C. held that the inherent power has not been conferred upon the Court. It is a power inherent in the Court by virtue of its duty to do justice between the parties before it. It is then submitted that Section 482, Cr.P.C. only makes this power inherent. Further it is always the duty of the Court to do justice between the parties and in doing so nothing can come as an impediment. It is submitted that when there is an anxiety to do justice Section 362, Cr.P.C. would not operate as a bar because that only prohibits altering or reviewing judgments, neither the correction has to be done nor the judgment has to be dressed. Section 362, Cr.P.C. will only be a bar when there will be some fault finding in the judgment. Learned counsel then relied on Sankatha Singh v. State of Uttar Pradesh, AIR 1962 SC 1208. On the strength of this case it is submitted that a Court cannot pass a judgment in the absence of the accused or his counsel and though the order is not without jurisdiction yet the hearing should be given. In this judgment, however, the Court has held that Sessions Judge could not pass the order rehearing of the appeal in exercise of such power that Section 362 read with Section 424, Cr.P.C. specifically prohibits the alter or reviewing of its order by a Court. Inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing. Reliance was then placed on Bindeshwari Prasad Singh v. Kali Singh, AIR 1977 SC 2432. In this case their Lordships of the Supreme Court have made a distinction between the jurisdiction vested in the subordinate Courts and in the High Court. It has been held that 'there is no provision in Code of Criminal Procedure empowering a Magistrate to review or recall a judicial order passed by him. Inherent powers under Section 561-A are only given to High Court and unlike Section 151, C.P.C. subordinate Criminal Courts have no inherent powers'. Thus, this case in fact impliedly explains what has been held in Sankatha Singh v. State of U.P. and clearly lays down that the High Court has the inherent powers while the lower Courts do not possess it. It is submitted that deciding the case in the absence of the party or his lawyer would amount to denial of justice as the view point of the accused is not before the Court and there is likely to be a prejudice to his case.

24. Mr. Ganpat Singh Singhvi submitted that there is yet another angle of looking at the entire case and if need be this Court should go in the constitutional validity of the provisions of the Code of Criminal Procedure, particularly Section 362, Cr.P.C. which is basically against the rights of the citizens. He submits that if that strict interpretation is taken that Section 362, Cr.P.C., puts a complete bar for rehearing the cases even in case where the principles of natural justice are violated, then this provision would be ultra vires of Article 21 of the Constitution. It is submitted that even in matters of property rights the settled law is that none can be deprived of the property in violation of principles of natural justice. He submits that up to 1978 this view was generally acceptable only in the property matters and an individual's liberty was not put at the same pedestal but that was the capitalistic way of looking at things. Now after 1978 the Courts have given new dimensions to Article 21 of the Constitution and right from Hussainara, Khatoon's case (AIR 1979 SC 1360) till date their Lordships of the Supreme Court by series of decisions have opened new vistas and it is in the same sequence that this Court must take a view that Section 482, Cr.P.C. is wide enough to give effect to the spirit of principles of natural justice. It is submitted that there is no inherent prohibition and even if there is one in Section 362, Cr.P.C. the same must be held to be violative to the principles of natural justice and Article 41 of the Constitution. It is submitted that this Court should not take a view that right of hearing of an appeal is completely taken away. In support of his aforesaid contentions he placed reliance on the following observations in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly (and another Civil Appeal), (1986) 3 SCC 156 : (AIR 1986 SC 1571) wherein it has been held as under :

'The law exists to serve the needs of the society which is governed by it. If the law is to play its plotted role of serving the needs of the society, it must reflect the ideas and ideologies of that society. It must keep time with the heartbeats of the society and with the needs and aspirations of the people. As the society changes, the law cannot remain immutable. The early nineteenth century essayist and wit, Sydney Smith said : 'When I hear any man talk of an unalterable law, I am convinced that he is an unalterable Fool', The law must, therefore, in a changing society march in tune with the changed ideas and ideologies. Legislatures are, however, not best fitted for the role of adapting the law to the necessities of the time for the legislative process is to slow and the legislatures often divided by politics, slowed down by periodic elections and overburdened with myriad other legislative activities. A constitutional document is even less suited to this task, for the philosophy and the ideologies underlying it must of necessity be expressed in broad and general terms and the process of amending a Constitution is too cumbersome and time-consuming to meet the immediate needs. This task must, therefore, of necessity fall upon the Courts because the Courts can by the process of judicial interpretation adapt the law to suit the needs of the society'.

He then referred to Nawabkhan Abbaskhan v. State of Gujarat, AIR 1971 SC 1471 wherein it has been held as under :

'Decisions are legion where the conditions for the exercise of power have been contravened and the order treated as void. And when there is excess or error of jurisdiction the end product is a semblance, not an actual order, although where the error is within jurisdiction it is good, particularly when a finality clause exists. The order becomes 'infallible in error' a peculiar legal phenomenon like the hybrid beast of voidable voidness for which, according to a learned author, Lord Denning is largely responsible. The legal chaos on this branch of jurisprudence should be avoided by evolving simpler concepts which work in practice in Indian conditions. Legislation, rather than judicial law-making will meet the needs more adequately. The only safe course, until simple and sure light is shed from a legislative source, is to treat as void and ineffectual to bind parties from the beginning any order made without hearing the party affected if the injury is to a constitutionally guaranteed right. In other cases, the order in violation of natural justice is void in the limited sense of being liable to be avoided by Court with retroactive force.

In the present case, a fundamental right of the petitioner has been encroached upon by the police commissioner without due hearing. So the Court quashed it not killed it then but performed the formal obsequies of the order which had died at birth. The legal result is that the accused was never guilty of flouting an order which never legally existed.'

Reliance has been placed on the following observations of their Lordships in Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991. It is submitted that this judgment is a landmark and extends the horizons of Article 21 of the Constitution of India and has an important bearing in deciding this reference. Then reference has been made to A. K. Roy v. Union of India, AIR 1982 SC 710 wherein it has been held as under :

'If the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner.

The embargo on the appearance of legal practitioners should not be extended so as to prevent the detenu from being aided or assisted by a friend who, in truth and substance, is not a legal practitioner. Every person, whose interests are adversely affected as a result of the proceedings which have a serious import, is entitled to be heard in those proceedings and be assisted by a friend.'

Reliance has also been placed on the Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni, AIR 1983 SC 109, wherein it has been held as under :

'In this connection, we would like to refer to a weighty observation on this point where despite constitutional inhibition this Court conceded such a right. In A. K. Roy v. Union of India, (1982) 1 SCC 271 at P. 335 (para 93) : (AIR 1982 SC 710 at p. 747 para 93), the learned Chief Justice while rejecting the contention that a detenu should be entitled to appear through a legal adviser before the Advisory Board observed that Article 22(3)(b) makes it clear that a legal practitioner should not be permitted to appear before an Advisory Board for any party. While noting this constitutional mandate, the learned Chief Justice proceeded to examine, what would be the effect if the department is represented before the Advisory Board by a legally trained person. It was held that in such situation despite the inhibition of Article 22(3)(b) the fair procedure as contemplated by Article 21 requires that a detenu be permitted to appear by a legal practitioner.'

On the strength of the aforesaid two authorities it is submitted that their Lordships of the Supreme Court have accepted the right of being heard by a legal expert even in those cases where there was prohibition by law. Reliance has also been placed on Mariabhilli Ramanna v. Andhavarapu Dharmayya, 1986 Cri LJ 738 (Andh Pra) and stated that power of re-call is different than the power of review. It has been held in this case that 'it is fairly settled that the Court has no power to review its order unless there is a provision specifically empowering the Court to exercise the power of review. The inherent power conferred on the High Court under Section 482, Cr. P.C. cannot be called in aid in a situation where the Magistrate seeks to review the matter. The power of review lacks sanction of any of the provisions of Criminal P.C. Therefore, I am unable to agree with the decision of the Patna High Court.'

25. Mr. Ajeet Bhandari placed reliance on Rafiq v. Munshilal, AIR 1981 SC 1400 wherein it has been held as under :

'Where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel'.

It is submitted that' though this was the civil case but the principle laid down therein shall also be applicable in criminal cases.

26. Mr. A. K. Gupta submits that Section 304, Cr. P.C. and Article 39A of the Constitution where right to defend the accused at the State expenditure has been accepted then not to order rehearing of cases decided in the absence of the counsel -must be seriously deprecated. He submits that according to Section 304, Cr. P.C. in a Sessions trial as well as in the appeals legal aid has to be provided at the State expenditure and a notification is also contemplated. While in Article 39A of the Constitution, the framers have categorically enacted that the State shall secure for providing free legal aid by suitable legislation or schemes or in any other way. Seeking support from these it is submitted that whenever case is decided in the absence of legal aid to an accused then keeping in spirit all the aforesaid provisions that judgment should be re-called in the inherent powers of the Court in case it is found that same is prejudicial to the interest of the accused.

27. Mr. Tibrewal submitted that harmonious construction has to be given to the provisions of Section 362, Cr. P.C. and Section 482, Cr. P.C. He submits that under Section 362, Cr. P.C. review or alteration is prohibited but Court has also to bear in mind that power of review is always a creation of a statute and since it has not been created in Code of Criminal Procedure, rather, there is a specific bar, no review is permissible but the question is whether order of review is an order of recall, it has to be considered that whether Section 362, Cr. P.C. can be considered to be a complete bar even if there is gross injustice done to an accused whether the Court will only remain a silent spectator. He submits that in appropriate cases despite bar under Section 362, Cr. P.C. Court is obliged to grant relief to secure ends of justice. Learned counsel has placed reliance on a Full Bench decision of this Court reported in Noor Taki Mammu v. State of Rajasthan, 1986 Rajasthan LR 195 : (1986 Cri U 1488) wherein it has been held that in exceptional cases despite the bar contained in Section 397, Cr. P.C. interference can be made with interlocutory orders under Section 482, Cr. P.C. as it gives unfettered powers to this Court for securing the ends of justice. In the aforesaid case the Court was considering the question of releasing an approver on bail who was not on bail at the time of granting pardon. After considering the various authorities the Court held as under :

'A perusal of the aforesaid cases coupled with that of many other cases, like that of Sunil Batra v. Delhi Administration : 1980 Cri LJ 1099 : (AIR 1980 SC 1579), and yet another case of Hussainara Khatoon reported in AIR 1979 SC 1360, we have no hesitation in holding that detention of a person even by due process of law has to be reasonable, fair and just and if it is not so, it will amount to violation of Article 21 of the Constitution of India. Reasonable expeditious trial is warranted by the provisions of Cr. P.C. and in case this is not done and an approver is detained for a period which is longer than what can be considered to be reasonable in the circumstances of each case, the Court has always power to declare his detention either illegal or enlarge him to bail while exercising its inherent powers. Section 482, Cr. P.C. gives wide power to this Court in three circumstances. Firstly, where the jurisdiction is invoked to give effect to an order of the Court. Secondly if there is an abuse of the process of the Court and thirdly in 'order to. secure the ends of justice. There may be occasions where a case of approver may fall within latter two categories. For example in a case where there are large number of witnesses a long period is taken in trial where irregularities and illegalities have been committed by the Court and a re-trial is ordered and while doing so the accused persons are released on bail, the release of the approver will be occasioned for securing the ends of justice. Similarly, there may be cases that there may be an abuse of the process of the Court and the accused might be trying to delay the proceedings by absconding one after another, the approver may approach this Court for seeking indulgence. But this too will depend upon the facts and circumstances of each case. Broadly, the parameters may be given but no hard and fast rule can be laid down. For instance, an approver, who has already been examined and has supported the prosecution version and has also not violated the terms of pardon coupled with the fact that no early end of the trial is visible, then he may be released by invoking the powers under Section 482, Cr. P.C. Section 482, Cr. P.C. gives only power to the High Court. Sessions Judge cannot invoke the provisions of the same. High Court therefore in suitable cases can examine the expediency of the release of an approver. We are not inclined to accept the contention of the learned Public Prosecutor that since there is a specific bar under Section 306(4)(b), Cr. P.C. Section 482, Cr. P.C. should not be made applicable. Their Lordships of the Supreme Court have said it in times without number that there is nothing in the Code to fetter the powers of the High Court under Section 482, Cr. P.C. Even if there is a bar in different provisions for the three purposes mentioned in Section 482, Cr. P.C., and one glaring example quoted is that though Section 397 gives a bar for interference with interlocutory order yet Section 482, Cr. P.C. has been made applicable in exceptional cases. Secondly revision by the same petitioner is barred yet this Court in exceptional cases invokes the provisions of Section 482, Cr. P.C. Therefore, Section 482, Cr. P.C. givesample power to this Court. However, in exceptional cases, to enlarge the approver on bail, we answer the question that according to Section 306(4)(b), Cr. P.C. the approver should be detained in custody till the termination of trial, if he is not already on bail, at the same time in exceptional and reasonable cases this Court has power under Section 482, Cr. P.C. to enlarge him on bail or in case there are circumstances to suggest that his detention had been so much prolonged, which would otherwise outlive the period of sentence, if convicted his detention can be declared to be illegal, as violative of Article 21 of the Constitution.'

Relying on Ranchod Mathur Wasawa v. State of Gujarat, (1974) 3 SCC 581: (AIR 1974 SC 1143) it is submitted that adequate opportunity and facility should be provided to the counsel for an accused to prepare the case. He relied on the following passage of the judgment :

'Indigence should never be a ground for denying fair trial or equal justice. Therefore, particular attention should be paid to appoint competent advocates, equal to handling the complex cases -- not patronising gestures to raw entrants to the Bar. Sufficient time and complete papers should also be made available, so that the Advocate chosen may serve the cause of justice with all the ability at his command. In all these cases there should be a sensitive approach made by the Court to see that the accused feels confident that his counsel chosen by the Court has had adequate time and material to defend him properly'.

Reliance was placed on a Full Bench decision of Travancore Cochin reported in State v. Kunjan Pillai Alyappan Pillai, AIR 1952 Trav-Co 210, where power to review was considered. Their Lordships though held that Section 561A does not confer any power on the High Courts even under Section 561A to review or alter the judgment, yet observed that in the circumstances of that particular case since there was no abuse of the process of the Court or any grave injustice was done to the party, they were dismissing the petition. They however, did not express any specific view about the correctness of the law laid down in different cases wherein power of re-call had been accepted. The Full Bench of Allahabad High Court in Mahesh v. State, 1971 Cri LJ 1674 consisting of five Judges considered the scope of inherent powers of the High Court and held as under :

'The inherent power cannot affect the substantive rights. It can be invoked only to law down the procedure in cases not covered by the provisions of the Code. The inherent power is to be exercised in exceptional cases, and even then carefully and with caution, when there is no other remedy which can be effectively availed of. The High Court will also be justified to exercise its inherent power in those exceptional cases which could not be in the mind of the legislature at the time of enacting the Code even though for usual cases a provision was made therein. Whenever the inherent power is exercised, it shall be for one of the three purposes mentioned in Section 561A, Cr. P.C. that is, to prevent the abuse of the process of the Court or to secure the ends of justice'.

A Full Bench consisting of four Judges of Jammu and Kashmir High Court in Prem Singh v. State, 1982 Cri LJ 297 : (AIR 1982 NOC 141), held as under :

'If there is no decision because it is a nullity, the bar under Section 369 cannot operate. Cases are conceivable where the order passed in appeal or revision is a nullity not because of any procedural non-compliance by the Court of appeal or revision, which goes to the roof of the matter, but because the order passed by the trial Court itself is found to be a nullity. That may be so where the trial Court has violation of principles of natural justice and the appellate or the revisional Court had no jurisdiction of its own to make an order but its jurisdiction is only to confirm or set aside the order of the trial Court. In such cases, the order passed in appeal or revision would be a nullity because in law the order of the trial Court will be deemed to be non-existent and it would necessarily follow that there was no order which the appellate Court or the revisional Court would confirm or set aside. Consequently, it shall be open to the appellate Court or the revisional Court, as the case may be, to proceed to rehear the case as if the order already passed by it did not exist, Section 369, Cr. P.C. would not stand in its way'.

Reliance has also been placed on Deepak Thanwardas Balwani v. State of Maharashtra 1985 Cri LJ 23 (Bom) wherein it has been held as under :

'In its inherent powers as provided in Section 482, the High Court can review or revise its judgment if such a judgment is pronounced without giving an opportunity of being heard to a party who is entitled to a hearing and that party is not at fault. For the mistake of the Court, a party cannot suffer'.

28. Mr. Dalip Singh laid emphasis on the right recognised for providing in engaging a lawyer and hearing them. He relied on the observations of their Lordships of the Supreme Court in State of Madhya Pradesh v. Shobharam, AIR 1966 SC 1910 wherein it has been held as under :

'But the right to be defended by a legal practitioner is not conferred only on a person arrested. The right to be defended by a legal practitioner extends also to a case of defence in a trial which may result in the loss of personal liberty. On the other hand, where a person is subjected to a trial under a law which does not provide for an order resulting in the loss of his personal liberty, he is not entitled to the constitutional right to defend himself at the trial by a legal practitioner. The reason is that Articles 21 & 22 of the Constitution are concerned only with giving protection to personal liberty. That is strongly indicated by the language used in these Articles and by the context in which they occur in the Constitution. It would follow that the requirement laid down in Art, 22(1) is not a constitutional necessity in any enactment which does not affect life or personal liberty.'

29-30. Mr. Jagdeep Dhankhar also laid emphasis on Articles 21 & 39A of the Constitution of India and further submitted that scope of Section 482, Cr. P.C. is very wide enough and Section 362, Cr. P.C. cannot be said to be a bar in all cases under Code of Criminal Procedure. He submits that this Court while interpreting an order under Section 68 IPC wherein an accused has not paid the fine during the period given to him has negatived the argument of the Government Advocate that Section 362, Cr. P.C. would come into operation and this Court cannot now review the order. In this light he has referred to Sheduram v. State of Rajasthan, 1985 Cri LR 703 (Raj). Reliance was also placed on an order of the Supreme Court reported in Chakreshwarnath Jain v. State of Uttar Pradesh, 1981 (Supp) SCC 11 : (AIR 1981 SC 2009 (2)) where a revision petition was ex parte decided by the Allahabad High Court. Their Lordships set aside the order and sent the case back to Allahabad High Court for a decision afresh. Reliance was also placed on a decision of the Supreme Court in Superintendent and Remembrancer of Legal Affairs W.B. v. Mohan Singh, 1975 Cri LJ 812 : (AIR 1975 SC 1002) wherein it has been held as under :

'Inherent power of High Court to quash criminal proceedings in lower Court --Proceedings long drawn out -- No prima facie case made out against accused --Proceedings may be quashed by High Court to prevent abuse of process of Court and to secure ends of justice -- Fact that a similar application for quashing the proceedings on a former occasion was rejected by the High Court on the ground that questions involved were purely questions of fact which were for the Court of fact to decide, is no bar to the quashing of the proceedings at the later stage -- Such quashing will not amount to revision or review of the High Court's earlier order --Order under Section 561-A should be passed in view of the circumstances existing at the time when the order is passed.'

31. Mr. M.I. Khan Additional Advocate General submitted that this question is of much wider importance and should be referred to a still larger Bench. He submits that one of us has already taken view in Noortaki's case {1986 Cri LJ 1488) (Raj) (supra), that even when there is specific prohibition under same provision in exceptional cases inherent powers of the Court can be invoked, he submits that Noortaki's case requires reconsideration and it has to be considered whether scope of Article 21 of the Constitution can be extended to that extent. He submits that according to Article 21 of the Constitution there are only two riders that no person should be deprived of his life or personal liberty and that if it is to be curtailed it can only be in accordance with the procedure established by law. He submits that it is essential to consider Article 21 of the Constitution and it is submitted that even on consideration of it it cannot be said that the provisions of Section 362, Cr. P.C. can be circumvented by taking resort to Section 482, Cr. P.C. It is submitted that Section 362, Cr. P.C. starts with the word save as 'otherwise provided by this Code, therefore, unless there is some provision specifically giving effect to the bar contained in Section 362, Cr. P.C this Court cannot widen the horizans by taking resort to Section 482, Cr. P.C. He relies on Smt. Sooraj Devi v. Pyare Lal, 1981 Cri LJ 296 : (AIR 1981 SC 736) and specifically refers to the following observations of their Lordship of the Supreme Court:

'The appellant points out that he invoked the inherent power of the High Court saved by Section 482 of the Code and that notwithstanding the prohibition imposed by Section 362 the High Court had power to grant relief. Now it is well settled that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. Sankatha Singh v. State of U.P., AIR 1962 SC 1208. It is true that the prohibition in Section 362 against the Court altering or reviewing its judgment is subject to what is 'otherwise provided by this Code or by any other law for the time being in force'. Those words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 and, therefore, the attempt to invoke that power can be of no avail'.

He submits that their Lordships in the aforesaid case have categorically held that inherent powers cannot be invoked when there is a complete bar. He has also placed reliance on Nandlal Chunilal Bodiwala v. Emperor, AIR 1946 Bom 276 and submitted that the Full Bench of Bombay High Court considered the meaning of the word 'judgment' as occurred in then Section 369, Cr. P.C. and the scope of reviewing and altering the said judgment. Section 438, Cr. P.C. was made for hearing the effect of the petition still it would not affect its validity and the binding nature on the petitioner. He also relied on S. Kuppuswami Rao v. The King, AIR 1949 FCI to substantiate that the term 'judgment' indicates the judicial decision given on the merits of the dispute before the Court and in criminal case the expression 'judgment' or 'final order' cannot cover a preliminary or interlocutory order made on a preliminary objection. On the strength of this case it is submitted that if the judgment is final order then there is a bar for reviewing or altering the same. Mr. Khan also submitted that when a reference has been made to this Bench it should only answer the question referred to and the scope is limited. He refers to Eknath Shankarrao Mukkawar v. State of Maharashtra, 1977 SCC (Cri) 410 : (AIR 1977 SC 1177) and submits that the reference made is competent.

32. Mr. Mohammad Rafiq submitted that power to re-call must be derived only from some specific provisions in the Code and there being none the Code cannot enlarge the scope which otherwise has been restricted by the negative provisions of Section 362 Cr. P.C. He submitted that the inherent power regarding review or alteration of the judgment in Section 482 Cr. P.C. has been deleted by virtue of Section 362 Cr. P.C. He has further submitted that a judgment is a termination of a proceeding and once the proceeding is terminated that Court is functus officio and to give effect to this principle of functus officio the legislature has incorporated Section 362 Cr. P.C. It is submitted that the express provision of Section 367 Cr. P.C. would override even inherent powers as the same is prohibitory. He also emphasized on the words 'save as otherwise provided by this Code or by any other law' and submits that these words make it clear that the only authority vested with power is Supreme Court. He submits that Supreme Court possesses three types of , jurisdiction, namely, appellate jurisdiction, power to correct the errors of subordinate Courts and to lay down the law under Article 141 of the Constitution of India. It is submitted that the Supreme Court has held that there are no inherent powers vested in a court when there is specific bar against it and that being the law binding on this Court the Court cannot now enlarge the jurisdiction by giving wider interpretation to Section 482 Cr. P.C. He relies on Manohar Nathurao Samarth v. Marotrao, (1979) 4 SCC 93 : (AIR 1979 SC 1084) and submits that the emphasis while interpreting a law should be on the function, utility, aim and purpose which the provision has to fulfil He has relied on para 14 of this judgment which reads as under :

'Even assuming ' that literality in construction has tenability in given circumstances, the doctrinal development in the nature of judicial interpretation takes us to other methods like the telcological, the textual, the contextual and the functional. The strictly literal may not often be logical if the context indicates a contrary legislative intent. Courts are not victims of verbalism but are agents of the functional success of legislation, given flexibility of meaning, if the law will thereby hit the target intended by the law-maker. Here the emphasis lies on the function, utility, aim and purpose which the provision has to fulfil. A policy oriented, understanding of a legal provision which does not do violence to the text or the context gains preference as against a narrow reading of the words used. Indeed, this approach is a version of the plain meaning rule, and has judicial sanction. In Huttonv. Phillips, (1948-45 Del 156) the Supreme Court or Delaware said : (Interpreation) involves for more than picking out dictionary definitions of words or expressions used. Consideration of the context saying that a verbal expression is plain or unambiguous, we mean little more than that we are convinced that virtually anyone competent to understand it, and desiring fairly and impartially to ascertain its signification, would attribute to the expression in its context a meaning such as the one we derive, rather than any other; and would consider any different meaning, by comparison, strained, or farfetched, or unusual, or unlikely.'

He also referred to Addl. District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207 and submitted that while interpreting the provisions and considering the observations of a High Judicial Authority like the Supreme Court greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him, unless he makes it clear that he intended his remarks : to have a wider ambit. His Lordship Hon'ble Mr. Justice Bhagwati in the aforesaid case has observed that it is not possible for Judges always to express their judgments so as to exclude entirely the risk that in some subsequent case their language may be misapplied and any attempt at such perfection of expression can only lead to the opposite result of uncertainty and even obscurity as regards the case in hand. He also placed strong reliance on Soorajdevi's case (AIR 1981 SC 736) (supra) relied upon by Mr. Khan. He also placed reliance on B. R. V. Satyanarayana v. The State, 1977 Cri LJ 1038 (Andh Pra) and submitted that the High Court cannot review its own order. He relied on the following observations :

'It is an universal principle of law that when a matter has been finally disposed of by a Court, such Court is functus officio in respect of that matter. In the absence of a direct statutory provision, the Court which became functus officio cannot entertain a fresh prayer for the same relief unless and until the previous order of final disposal has been set aside. It is this cardinal principle that has been incorporated in Section 362 of the Code. Admittedly, there is no provision in any other law permitting the High Court to alter or review a final order passed by it in a criminal revision case. Inherent powers under Section 482 cannot be exercised to do what the Code specifically prohibits the Court from doing. When Section 362 expressly prohibits the Court from altering or reviewing its final order after the same is signed, it would not be open to High Court to review or alter the order by admitting a fresh revision application. Case law reviewed.

Where the order of dismissal of a revision petition was a regular order passed on merits after hearing the petitioner's counsel, it cannot be said that the order is without jurisdiction or that it was passed without affording an opportunity to petitioner. Even a summary dismissal at the admission stage of a revision case after due hearing of the petitioner or his counsel is as much adismissal after full hearing and the order having been pronounced and signed by the Judge, the same cannot be altered or reviewed in view of the express prohibition contained in Section 362 Cr. P.C.'

He also relied on Naresh v. State of Uttar Pradesh, 1981 SCC (Cri) 631 : (AIR 1981 SC 1385) where the High Court had altered the quantum of sentence. Their Lordships of the Supreme Court held that the High Court was wholly wrong in altering the judgment passed by them disposing the criminal appeals. He also relied on Chandrabali v. State, 1979 Cri LJ 1218 (All) wherein also it was held that Section 482 Cr. P.C. is not applicable in which it has been held as under :

'We may also point out that in the Full Bench case of Raj Narain (AIR 1959 All 315) (supra) it was observed in the majority judgment that Section 561-A, did not authorise this Court to rehear a case where the applicant or appellant was not heard due to some fault of his or his counsel Thus the applicant cannot get any assistance even from the majority judgment in Raj Narain's case (supra) which on this point has not been overruled by their Lordships of the Supreme Court. Thus the applicant in the case on hand will not be entitled to claim rehearing even if we were to hold that the applicant could invoke inherent jurisdiction of this Court reserved under Section 482 Cr. P.C.'.

He then relied on Har Bilas v. Ram Niwas Bansal, 1984 Cri LJ 1008 (All). The Court held that Section 362 Cr. P.C. is a bar. But in this case we may observe that the name of the counsel was printed in the cause-list and there was no adjournment slip also nor any mention was made and it was an application under Section 482 Cr. P.C. which was decided and in those circumstances their Lordships held that S. 362 will operate as a bar. A reference has then been made to Ajit Singh v. State of Punjab, (1983) 2 Crimes 60 : (AIR 1982 NOC 219) (Punj & Har) (FB) wherein it has been held as under :

'It seems to be more than manifest that both with regard to the appellate and the revisional jurisdiction of the High Court there is no power to review or revise its earlier judgment, except to correct clerical errors. In face of the all pervading dictum there is no option but to hold that Lal Singh's case (AIR 1970 Punj & Har 32) (supra) can no longer hold the field and is hereby overruled. Consequently the answer to the first question has to be rendered in the affirmative and it is held that the High Court has no power to review or alter its earlier judgment within the criminal jurisdiction accept to correct clerical errors.'

The learned counsel also submitted that the word 'alter' appearing in Section 362 Cr. P.C. is wider in scope than the word 're-call'. He referred to Law Lex icon by Venkataramayya 1978 Edition page 128 and submitted that 'recall' included the word 'review'. He finally submitted that legislature always intended a finality to a judgment and it should not be permitted to be tested by taking resort to Section 482 Cr. P.C. He submitted that the cancellation of earlier judgments is not permissible. He has also placed reliance on Collector of Customs v. Digvijay Singhji Spinning & Weaving Mills Ltd., Jamnagar, AIR 1961 SC 1549. In Shivanarayan Kabra v. State of Madras, AIR 1967 SC 986 it has been observed as under :

'It is a sound rule of interpretation that a statute should be so construed as to prevent the mischief and to advance remedy according to the true intention of the makers of the statute.'

In The Commr. of Sales Tax U.P. v. Mangal Sen Shyamlal, AIR 1975 SC 1106 it has been held as under :

'A statute is supposed to be an authentic repository of the legislative will and the function of a Court is to interpret it 'according to the intent of them that made it'. From that function the Court is not to resile. It has to abide by the maxim ut res magis valeat quam pereat, lest the intention of the legislature may go in vain or be left to evaporate into thin air. Where that intent is clearly expressed in the language of the Act, there is little difficulty in giving effect to it. But where such intent is covert and couched in language which is imperfect, imprecise and deficient or is ambiguous or enigmatic and external aids to interpretation are few, scant and indeterminate, the Court may, despite application of all its experience, ingenuity and ratiocination, find itself in a position no better than that of a person solving a cross word puzzle with a few given hints and hunches. In such a situation a mere reference to the High Court of a question of opinion may not afford an adequate solution. Only legislative amendment may furnish an efficacious and speedy remedy.'

He also referred Rule 64 of the Rajasthan High Court Rules and said that for the purpose of review there are specific rules which have to be observed.

33. Mr. S. P. Tyagi submitted that once the judgment is given and signed it has become final for the Court which has delivered and there is no provision of law which empowers the Court to alter or change the same by way of review, recall, reconsideration or rehearing. In other words he submits that the Court is functus officio and whatever may be the circumstances there being a jurisdictional power provided by Section 362 Cr. P.C. no jurisdiction express or implied is vested in the Court. He relies on two decisions of their Lordships of the Supreme Court, one reported in Sankatha Singh v. State of Uttar Pradesh, (AIR 1962 SC 1208) (supra) and another in State of Orissa v. Ramchander Agarwala, (AIR 1979 SC 87) (supra).

34. Mr. Mathur, Government Advocate, adopted the arguments of the Addl. Advocate General and Mr. Mohd. Rafiq and further submitted that Section 393 Cr. P.C. read with Sections 377, 378 and 384(4) makes it abundantly clear that there is a finality attached to the judgments and orders and Section 362 Cr. P.C. provides a bar which cannot be lifted by Section 482 Cr. P.C.

35. Mr. S. C. Agrawal in his rejoinder submitted that Advocates presence has always been felt necessary and the Courts have been zealous in looking to the fact that the case of the accused has not in any manner been prejudiced. He has placed reliance on Raj Kapoor v. State (Delhi Administration), AIR 1980 SC 258 where their Lordships of the Supreme Court have held that the High Court must exercise the inherent powers very sparingly. One such case would be the desirability of the quashing of a criminal proceeding initialed illegally, vexatiously or as without jurisdiction. Learned counsel has also relied upon a judgment delivered by this Court in Baluram v. State, S. B. Cr. Misc. Appl. No. 154/82 wherein an application under Section 482 Cr. P.C. was dismissed.

36. We shall first quote and discuss the cases considered by Hon'ble Sharma, J.

37. We have given our earnest and thoughtful consideration to the rival contentions and have carefully gone through the cases cited above.

38. There are two views available on the point. According to one view Section 362 Cr. P.C. has been held to be mandatory and puts complete bar and it has been therefore, held that Section 482 Cr. P.C. can also not be invoked for the purposes of reviewing or altering the judgment. The other view is that re-calling is different than reviewing and altering and if the Court is of the opinion that gross injustice has been done, then Section 482 Cr. P.C. should be invoked to re-call the judgment and re-hear the case. !n fact the earlier view has impliedly been done away with by their Lordships of the Supreme Court in Sankatha Singh's case (AIR 1962 SC 1208) (supra). Their Lordships have held that the appellate Court had no power to review or restore an appeal which has been disposed of under Sections 424 and 369 Cr. P.C. (old). Similar was the view taken in State of Orissa v. Ram Chandra, (AIR 1979 SC 87) (supra). Sankatha Singh's case has been referred to in Sooraj Devi's case (AIR 1981 SC 736) (supra) wherein also their Lordships have held that inherent powers cannot be invoked when there is a complete bar. Scope of Section 482 Cr. P.C. was then considered by their Lordships in Manohar Nathu Sao Samarth v. Marot Rao, (AIR 1979 SC 1084) (supra). Thus on one side as mentioned above the principles which have been laid down by their Lordships of the Supreme Court can be summarised as under :--

1. That the powers to deal with the case must flow from the statute,

2. That the powers given under Section 362 Cr. P.C. (S. 369 Cr. P.C. old) given to the Court for reviewing or altering is limited only for correcting an arithmetical or clerical error and specifically prohibits Courts from touching the judgment by taking away the powers altering or reviewing the judgment or the final order and as such principle of functus officio has been accepted.

3. That the prohibition contained in Section 362 Cr. P.C. (Section 369 Cr. P.C. Old) is not only restricted to the trial Court but also extends to appellate Court or the revisional Court.

4. That the inherent powers of the Court cannot be invoked where there is an express prohibition and in other words Section 482 Cr. P.C. cannot be invoked.

39. As against this the analogical deduction which comes out from another set of cases is--

(i) Right of the accused to be heard is his valuable right which cannot be taken away by any provision of law,

(ii) If the accused has not been given an opportunity of being heard or is not provided with the counsel when not duly represented it will be violative of principles of natural justice as well as Article 21 of the Constitution,

(iii) That to provide defence counsel in case the accused is not in a position to engage is fundamental duty of the State and has throughout been recognized and now incorporated in Section 304 Cr. P.C. and in Article 39 A of the Constitution,

(iv) That bar of review or alter is different than the power of re-call,

(v) That inherent powers given under Section 482 Cr. P.C. (Section 561-A Cr. P.C. Old) are wide enough to cover any type of cases if three conditions mentioned therein so warrant, namely--

(a) for the purpose of giving effect to any order passed under the Code of Criminal Procedure;

(b) for the purposes of preventing the abuse of the process of any Court; and

(c) for securing the ends of justice.

(vi) The principle of audi alteram partem shall be violated if right of hearing is taken away,

(vii) That when the judgment is re-called it is a complete obliteration/abrogation of the earlier judgment and the Appeal or the ' Revision, as the case may be, has to be heard and decided afresh,

(viii) That a Court subordinate to High Court cannot exercise the inherent powers and the Code restricts it to the High Court alone.

(ix) That no fixed parameters can be fixed and hard and fast rule also cannot be laid down and Court in appropriate cases where it is specified that one of the three conditions of Section 482 Cr. P.C. are attracted should interfere.

40. Hon'ble Mr. Justice Lodha while deciding C. Jacobs case has taken note of all these factors before he directed re-hearing of the appeals. He has in extent discussed the judgment of the Supreme Court particularly in Sankatha Singh (AIR 1962 SC 1208) and Swarth Mathew's cases (AIR 1972 SC 1300) (supra) and had then arrived at a conclusion. He has also dealt with Dhanna's case (AIR 1963 Raj 104) (supra) and in fact we do not find any anomaly in decisions in Dhanna's and C. Jacobs' (1986 Rajasthan LR 506) cases which would have otherwise called for this reference. Hon'ble Mr. Justice Bhargava C. B. in Dhanna's case has discussed various authorities which have been cited before us also and then has categorically held 'the inherent powers under Section 561-A should be exercised very sparingly and only when the facts of the case justify the tests laid down in the section itself. They do not authorise the Court to re-direct a case where the appellants or his counsel was not heard on account of their own fault. I am, therefore, not satisfied that the absence of the learned counsel at th'e time the appeal was called for hearing was due to insufficient cause and the ends of justice require that a re-hearing should be granted to him'.

41. Thus in this case the power of rehearing has been accepted by Hon'ble Bhargava, J., of course in cases where sufficient cause had been shown for the absence of the appellant or his counsel He, however, was clearly of the opinion that Section 561-ACr. P.C. is not meant for abusing the process of the Court, i.e., to say that a lawyer or the appellant deliberately, in order to avoid the Bench, absents himself, then it would not give him a right of being re-heard. The facts in that case were such where it had not been shown that the lawyer was busy elsewhere or that his name might not have been shown in the cause-list and, on merits, therefore, he refused to exercise jurisdiction under Section 561 A Cr. P.C. Hon'ble Lodha, J. distinguished the case on fact and not on the point of law. He on the other law (hand?) accepted the principle laid down by Hon'ble Bhargava, J. Therefore, in our opinion case of Dhanna (AIR 1963 Raj 104} (supra) was not sought to be distinguished in the case of C. Jacob (1986 Rajashthan LR 506) by Hon'ble Lodha, J. and there is no need to refer this case before larger Bench particularly when similar principles had been laid down by their Lordships of the Supreme Court in Shaukin Singh's case (AIR 1981 SC 1698) (supra) relied upon by Hon'ble Sharma, J.

42. Sankatha Singh's case also, in our opinion, does not put a complete bar as their Lordships in that case were considering the scope of the trial Court and it has been explained in Swarth Methue's case (AIR 1972 SC 1300) in which case their Lordships set aside the conviction and ordered the rehearing of the appeal. A perusal of the history of the cases shows that in all democratic societies right of hearing has been given utmost importance, rather laws have been enacted from time to time for providing legal aid to the persons who are unable to afford the lawyers. Holds Werth's history on English Law Vol. 9 page 226 deals with history of struggle which took place in England before a litigant's representation in the Court took a final shape in bringing out Poor Persons' Defence Ordinance which came up for scrutiny before their Lordships of the Privy Council in Gelosh Hurads (AIR 1944 PC 93) (cited above). Very valuable observation has been made therein that if there is a refusal to hear the counsel for the accused an appeal cannot stand. Their Lordships had gone to the extent of holding that even when an adjournment had been sought and refused the accused has to be re-heard because right of hearing cannot be taken away. Their Lordships of the Supreme Court have also advanced this very principle where it was held in couple of cases that if a lawyer does not appear it behoves the Court to appoint an amicus curiae. The same view has been taken in other cases also which have been referred to by the learned counsel above and we are firmly of the opinion that right of hearing cannot be taken away and the sound judicial view would be that reasonable opportunity of being heard must be provided to the accused. Thus, once an appeal or revision is admitted for hearing it should not normally be decided ex parte and if it has been decided ex parte and valid reasons have been shown that there had been failure of justice, inherent powers of this Court should be exercised. This of course, has not to be meant for giving long rope to those persons who either intend to delay the course of justice or to avoid the case from being heard by a particular Bench. Mr. M. I. Khan has cited a passage from Crime in Britain Today by Clive Borrell and Brian Cashinella. He referred to Chapter Eleven Courts, Law and Prisons, particularly the following paragraphs :

'Let there be no doubt, that a minority of criminal lawyers do very well from the proceeds of crime. A reputation for success, achieved by persistent lack of scruple in the defence of the most disreputable, soon attracts other clients who see little hope of acquittal in any other way. Experienced and respected Metropolitan detectives can identify lawyers in criminal practice who are more harmful to society than the clients they represent. A conviction said to result from perjury or wrong-doing by police rightly causes a public outcry. Acquittal, no matter how blatantly perverse, never does, even if brought about by highly paid forensic trickery.'

'There is very little reliable information about how and why juries arrive at their verdicts because no one is allowed to listen to the discussions in the jury room. Lawyers obviously believe that public confidence in the jury would be undermined if this were allowed to happen. I find this curious. If exposing the truth about the jury would destroy the public's belief in its value, then surely it is high time that belief was destroyed I cannot think of any other social institution which is protected from rational inquiry because investigation might show that it wasn't doing its job. My own view is that the prosecution of those acquittals relating to those whom experienced police officers believe to be guilty is too high to be acceptable. I would not deny that sometimes commonsense and humanity produce an acquittal which could not be justified in law but this kind of case is much rarer than you might suppose. Much more frequent are the cases in which the defects and uncertainties in the system are ruthlessly exploited by the knowledgeable criminal and his advisers.'

42A. Generally speaking we do not have any dispute with what has been said by the author but these observations have hardly any bearing on the question referred to in the case.

43. We have also gone through the observations in the following Article wherein it has been laid down by Shri Ram Jethmalani in an article titled as 'A lawyer Excommunicated' published in LEX ET JURIS wrote--

'So important is the right of an accused to have the services of a lawyer that the Constitution-makers were not satisfied with the rights created by the successive Codes of Criminal Procedure. The Constitution-makers introduced it in the Fundamental Rights chapter so that no tyrannical regime could curtail or destroy it. Article 22 declares that no accused shall be denied the right to consult and to be defended by a legal practitioner of his choice.'

'.....The newly added Article 39A mandates that the legal system shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.'

In another issue of the same magazine Soli Sorabjee an eminent lawyer wrote an Article 'Our Expanding Liberties wherein he wrote asunder :--

'At present it is Article 21 which is the fountainhead of the freedom and liberties of the people of India. Yet, it is only ten years ago that the Supreme Court in its disastrous judgment in ADM Jabalpur AIR 1976 SC 1207 held that on account of the suspension of Article 21 during the operation of the proclamation of Emergency the writ of habeas corpus was not available even in the case of an order of detention proven to be mala fide. Fortunately, after the Constitution (Forty-fourth) Amendment Act, which has made Article 21 non-suspendable even during an emergency, no Court can now deny to any person, at anytime, the full amplitude of Article 21 including its enforcement by a writ of habeas corpus or other appropriate writ.

There are indignant critics who charge that by an over-expansive interpretation of Article 21, the Supreme Court is acting as a super-legislature and is dabbling in matters outside its legitimate sphere. These critics forget that it is the proverbial tardiness of legislatures and the inertia, almost boardering on callousness, of the executive branch which provides a proper occasion for judicial activism. The judiciary can neither prevaricate nor procrastinate. It must respond if fundamental rights are to be living realities for the downtrodden and the oppressed. The Court is not legislating. It is adopting certain operational principles and attitudes within the framework of the Constitution.

May be the Court has 'gone too far' in interpreting Article 21. If it has erred, it is an error which had made the blessings of liberty available in a real and meaningful way to numerous unfortunate and exploited segments of humanity. Indeed, the Court's recent role in this field indicates its commitment to 'Taking Rights Seriously' or, as Prof. Upendra Baxi has aptly said, 'The Court is taking suffering seriously.'

Ultimately, that is the real yardstick by which one can answer the question whether the Supreme Court of India is the sentinel on the qui vive for the bulk of its citizens.'

A great emphasis has been laid on Article 21 of the Constitution of India which has been given new dimensions. Therefore, while considering the scope of right of hearing we are of the opinion that due consideration has to be given to Section 304 Cr. P.C. Articles 21 and 39A of the Constitution. Section 482 Cr. P.C. will have to be considered in the light of the aforesaid provisions. We have already mentioned above that in all civilized and democratic societies right of hearing has been considered to be one of the most fundamental of the fundamental rights flowing from principles of natural justice and principles enshrined in well known maxim audi alteram partem. Hon'ble Mr. Justice C. B. Bhargava white considering Dhanna's case (AIR 1963 Raj 104) did not consider the aforesaid aspect but st.ill after considering the various cases particularly Keshav Lal v. Gaveria, AIR 1952 Raj 50, Sri Ram v. Emperor, AIR 1945 All 106, Chandrika v. Rex, AIR 1949 All 176, Ram Ballabh v. State, AIR 1962 Pat 417, Mohan Singh v. Emperor, AIR 1944 Pat 209 and Bhagwandas v. The State, AIR 1954 Madh Bha 10 and also considering his own judgment in Criminal Revision Petition No. 138/62 coupled with Rules 79 and 80 of the Rajasthan High Court Rules, did come to the conclusion that re-hearing of a revision or an appeal can be ordered if the conditions laid down in Section 561-A Cr. P. C. (S. 482 Cr. P.C now) are fulfilled but gave a caution that this power should be sparingly used and the test laid down in the section must be satisfied. Hon'ble Mr. Justice Lodha in C. Jacob's case (1986 Rajasthan LR 506) has not only given due weight to the observations made by Hon'ble Bhargava, J. but has gone further and laid more emphasis on this right of re-hearing. He has only distinguished the same on facts. Hon'ble Justice Bhargava, J. had, on the merits of the case found that it was not clear from the application that the learned counsel was actually arguing any case before another Bench when the appeal was called for hearing. He further held that if the learned counsel had other cases listed on that day before other Benches he could have mentioned this case as provided by Rule 80 of the Rajasthan High Court Rules and, therefore, on merits he did not hear the appeal and it was because of these facts that Hon'ble Justice Lodha, J. in his judgment distinguished the said case and in our considered opinion Hon'ble Mr. Justice Sharma was not right when he held that Hon'ble Lodha, J. in C. Jacob's case had taken a different view not agreeing with the views of Hon'ble Bhargava, J. in case of Dhanna(AIR 1963 Raj 104). In fact Hon'ble Mr. Justice Lodha, J. has widened the scope of Section 482 Cr. P.C. and Hon'ble Mr. Justice Sharma himself in his order of reference has accepted that proposition. Considering the various aspects of the matter in our opinion there was no necessity of making a reference to this Court and we do not find that there was any difference of opinion between two Benches of this Court. On the contrary we find that even in the order of reference Hon'ble Mr. Justice Sharma has advanced the same logic and has opined that in view of Shaukin Singh's case (AIR 1981 SC 1698) a petition under Section 482 Cr. P.C. can be accepted.

44. Keeping the well known principles of interpretation of statute in our mind we deem it proper to observe that while considering the scope of Section 482 Cr. P.C. we must remember that inherent powers which are always inherent in a court are if (not) specifically provided by the legislature, all pervasive and comprehensive enough to arm the Court for advancing the cause of justice and to prevent the abuse of the process of the Court. It is a well known dictum that justice has not only to be done but it should also appear to have been done and, therefore, whenever a litigant comes before the Court it is essential that he must go having full faith in his mind that the Court has done justice with his case. It is true that all cannot go satisfied with the decision of the Court but at least all must have the satisfaction that they have been heard by the Court. The litigant who comes from different corners of the State cannot be expected to be around the Court when his case is called for hearing unless he has a competent and vigilant lawyer who informs him of approximate date of hearing of a case or the litigant himself is vigilant enough to keep in touch with his case, but most of the people who are illiterate and come to the Court have to bank on the information they receive, the treatment they gel and the advice which is tendered to them by their counsel. It can also not be expected that each and very litigant will have the lawyers of the same competence which the others can afford, but at the same time it is always expected from the learned counsel that they would do their best in the best interest of their client. Equally is the responsibility of the Registry in being cautious about notifying the cases properly when they come up for hearing. What we mean to say is that a litigant is always helpless and is at the mercy of the others, whoever makes a mistake ultimate sufferer is he. If the case is not properly shown in the daily cause-list, i.e. either the number is wrong or the title is not properly given or the name of the counsel representing not shown the case will go unattended and if the lawyer misses the case despite the fact that it is properly shown or is busy elsewhere and is unable to attend the Court again sufferer is the litigant, it is for the Courts to see that the record is properly looked into with the assistance of the counsel before the case is finally decided. At the same time Court must ensure that the absence of the counsel is neither deliberate nor meant to avoid the Bench, nor the litigant or his counsel has tried to over reach the Courts. The Courts in such case must not hesitate in proceeding against such persons.

45. Their Lordships of the Supreme Court in a case of Bhagwant Singh v. Commr. of Police, AIR 1985 SC 1285 even while giving interpretation to Section 173(2)(ii) Cr. P.C. have laid great emphasis on the right of hearing and held as under :

'in a case where the Magistrate to whom a report is forwarded under Sub-section (2) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.'

What we intend to emphasize is that right of hearing is very important right of which no litigant should be deprived. Thus on the consideration of all the cases cited and on the two cases quoted by learned single Judge, we answer the reference as under :

(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 re-calling 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.