w w w . L a w y e r S e r v i c e s . i n



M/s. BMD Hotels & Resorts Pvt. Ltd. Rep. By its Managing Director Nirmala Devi & Others v/s P. Murali

    Crl. M.P. Sr. Nos. 10341 & 10343 of 2019 In Crl. A. Nos. 590 & 592 of 2018

    Decided On, 12 April 2019

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE V. PARTHIBAN

    For the Petitioners: Sunder Mohan, Advocate. For the Respondent: Fazulul Haq for M/s. Juris & Justia, Advocates.



Judgment Text

(Prayers: Crl. M.P. SR No.10343 of 2019 filed under Section 482 of the Code of Criminal Procedure praying this Court to recall the judgment passed in Crl. A. No.590 of 2018 dated 21.01.2019.

Crl. M.P. SR No.10341 of 2019 filed under Section 482 of the Code of Criminal Procedure praying this Court to recall the judgment passed in Crl. A. No.592 of 2018 dated 21.01.2019.)

Common Order:

The unnumbered criminal miscellaneous petitions have been filed by the petitioners herein/accused to recall the judgment passed in C.A. Nos.590 and 592 of 2018 dated 21.1.2019.

2. The unnumbered criminal miscellaneous petitions were directed to be posted before this Court as the Registry of this Court found the petitions to be not maintainable, raising objection that once judgment has been delivered by this Court, the same cannot be altered or reviewed u/s 362 Cr.P.C. and, hence, the petitions u/s 482 Cr.P.C. would not lie.

3. The recall petitions u/s 482 Cr.P.C. arise out of the circumstances that led to the passing of the judgment in the abovesaid appeals by this Court vide order dated 2.1.2019.

4. The appellant in the appeals was the complainant before the trial court. Complaint was filed against the respondents/accused u/s 138 r/w 141 of the Negotiable Instruments Act. According to the appellant/complainant, the respondents/accused in CA No.592/2018 (petitioners in Crl. MP SR No.10341/19) have issued 5 cheques for a sum of Rs.2.50 Lakhs each, in all totalling to Rs.12.50 Lakhs on various dates. All the cheques were presented on 24.5.2010 with the complainant's banker. The cheques were returned dishonoured on 25.5.2010 with endorsement “exceeds arrangement”.

5. Similarly, the respondents/accused in CA No.590/2018 (petitioners in Crl. MP SR No.10343/19) have issued for a sum of Rs.1.50 Lakhs each, in all totalling to Rs.7.50 Lakhs. All the cheques were presented on 24.5.2010 with the complainant's banker. The cheques were returned dishonoured with an endorsement “funds insufficient” on 25.05.2010.

6. Thereafter, a legal notices were issued on behalf of the complainant on 14.6.2010, which was received by the respondents/accused in both the appeals on 15.6.2010. Since the amount covered under the cheques issued by the respondents/accused were not settled within 15 days from the date of receipt of notice issued under the provisions of the Negotiable Instruments Act, complaint was filed before the trial court u/s 138 r/w 141 of the Negotiable Instruments Act, which were taken on file as C.C. Nos.133 and 134 of 2012.

7. The learned Magistrate, after full-fledged trial, being satisfied with the merits of the complaint, convicted all the respondents/accused u/s 138 of the Negotiable Instruments Act and sentenced them to undergo simple imprisonment for a period of two years with a fine of Rs.10,000/- each in each case and also ordered compensation of Rs.12.50 Lakhs and Rs.7.50 Lakhs respectively, as per Section 357 (2) Cr.P.C., payable by the accused and in default ot such payment, to undergo simple imprisonment for a period of six months in each of the case. As against the order of the trial court, the respondents/accused preferred appeals before the lower appellate court in C.A. Nos.105 and 106 of 2016. The lower appellate court, which dealt with the appeals filed by the respondents/accused, accepted the case of the accused that there was no enforceable debt or liability and on such findings, the lower appellate court reversed the judgment of the trial court and acquitted the respondents/accused. Against the said judgment of the acquittal, the present appeals were filed by the complainant/appellant.

8. The appeals were listed for hearing before this Court on various dates from the day leave was granted to the appellant to file the appeals on 3.9.18. As could be seen from the order sheet relating to the listing of the appeals before this Court on various dates, there was no appearance either by the accused or was there any representation by any counsel on their behalf. The dates of hearing of the appeals on various dates and the notings of the proceedings of this Court are extracted hereunder for reference:-

“10. The petitioners submit that his counsel had perused the records before this Hon'ble Court and the adjudication of this Hon'ble Court which is extracted below :-

On 03.09.2018 :

Leave Granted in Crl. O.P. No.21321 of 2018.

On 03.10.2018 :

Post along with Crl. A. No.592 of 2018 on 09.10.2018

(Post along with Crl. A. No.590 of 2018 on 09.10.2018)

On 09.10.2018 :

Notice to the respondents returnable in four weeks. Private notice is also permitted. Post the matter after four weeks.

On 15.11.2018 :

Post the matter on 26.11.2018.

On 26.11.2018 :

It is represented that the notice sent to the respondent has been returned “Unclaimed”. Therefore, the office is directed to print the name of the respondent and post on 05.12.2018.

On 05.12.2018 : The learned counsel for the petitioner is present. There is no representation on behalf of the respondent. Post the matter for final disposal on 11.12.2018.

On 13.12.2018 :

The matter is argued on behalf of the petitioner, but yet there is no representation on behalf of the respondent.

Post the matter for final disposal on 03.01.2019. It is made clear that on the said date if there is no representation on behalf of the respondent the matter will be heard and disposed of on merits.

On 04.01.2019 :

Learned counsel for the appellant/complainant is present. There is no representation on behalf of the respondent. List the matter on 07.01.2019.

On 07.01.2019 :

Heard learned counsel for petitioner. Judgment reserved.”

9. As there was no representation for the respondents/accused, this Court, after hearing the appellant/complainant on the merits of the appeals, pronounced its judgment on 21.1.19 by allowing the appeals. The order passed by the lower appellate court acquitting the respondents/accused was set aside and the conviction and sentence passed by the trial court in C.C. Nos.133 and 134 of 2012 vide order dated 31.3.2016 was confirmed. Further direction was also given to the trial court to take appropriate steps to secure the presence of the respondents/accused and commit them to prison to serve the sentence imposed on them. As against the said judgment of this Court dated 21.1.2019, the present unnumbered criminal miscellaneous petitions (Crl. M.P. SR Nos.10341 and 10343 of 2019) have been preferred to recall the said judgment.

10. In the above backdrop, the unnumbered criminal miscellaneous petitions have been preferred to recall the order passed by this Court, to which the Registry of this Court has raised objection as to the maintainability of the petitions in view of the bar imposed u/s 362 Cr.P.C.

11. Mr.Sunder Mohan, learned counsel appearing for the petitioners in the recall petition strenuously contended that such petition to recall u/s 482 of the Code of Criminal Procedure is perfectly maintainable for the reason that while this Court reversing the order passed by the lower appellate court acquitting the accused, has not heard the accused before confirming the order of the trial court convicting the accused. Therefore, on the sole ground of not hearing the accused, this Court has inherent power to recall its order in order to provide an opportunity to the accused to present their defence before this Court. It is submitted by the learned counsel for the petitioners that the power to recall its own order is inherent in this Court and such recall of its own order, under extraordinary circumstances of the case, would not amount to altering or reviewing the judgment of this Court, passed in the appeals, on 21.1.2019.

12. Learned counsel for the petitioners further submitted that the principles of natural justice require the accused to be heard before any order of conviction is passed against them and such principles of natural justice are embodied in our constitutional framework and any order passed in violation of such principles of natural justice could always be recalled by exercising its inherent power for securing the ends of justice. According to the learned counsel for the petitioners herein, who are the respondents/accused in the appeals, they were not aware of the pendency of the appeals before this Court, as no notice was served on them.

13. In order to substantiate the factual position that the accused being unaware of the pendency of appeal before this Court, learned counsel drew the attention of this court to a copy of the affidavit filed u/s 452 Cr.P.C., before the VII Addl. Sessions Judge, Chennai, on 27.11.18. Learned counsel for the petitioners submitted that the lower appellate court was approached against the conviction and sentence passed by the trial court and the lower appellate court, while suspending the sentence, passed a conditional order to deposit a sum of Rs.1.25 Lakhs, being the 10% of the compensation amount to the credit of C.C. No.133/2012 on the file of the trial court and the same was complied with by the respondents/accused. After the lower appellate court acquitted the accused, petition has been filed before the court below for return of the deposit made to the tune of Rs.1.25 Lakhs. The said petition, filed u/s 452 Cr.P.C. was being pursued actively by the accused during the time when the appeals before this Court were being heard. Therefore, learned counsel appearing for the petitioners submitted that the accused were under the bona fide impression that no appeal was pending against the acquittal by the lower appellate court and, in fact, actively pursuing the petition for return of the deposit further to the direction issued to them by the lower appellate court.

14. Learned counsel appearing for the petitioners further submitted that after the judgment was passed by this Court on 21.1.19, in one such hearing before the lower appellate court while pursuing the petition u/s 452 Cr.P.C. for return of the deposit amount, the accused came to know that the acquittal order by the lower appellate court has been overturned and conviction of the trial court was reinstated and confirmed. Immediately, the accused had taken steps to file the present petitions seeking recall of the judgment, as they were not duly served with any notice either through Court or privately and they were not heard before judgment was passed by this Court on 21.1.2019. Therefore, learned counsel for the accused submitted that the non-appearance of the accused before this Court was entirely due to the fact that the accused were not aware of the pendency of the appeals before this Court and, therefore, the same was neither deliberate or intentional. Therefore, this Court, in order to secure the ends of justice, may recall the judgment and provide an opportunity to the accused to present their defence against the complaint preferred by the appellant before this Court.

15. Learned counsel for the petitioners/accused, to buttress his arguments relating to maintainability of the petition for recall, relied on the decision of the Hon'ble Supreme Court in State of Punjab – Vs – Davindra Pal Singh Bhullar & Ors. (2011 (14) SCC 770), more particularly para-27 of the said decision, wherein the Hon'ble Supreme Court had emphasised that the inherent powers could be exercised to recall an order in case the judgment has been pronounced in violation of principles of natural justice. For reference, the said portion of the decision is extracted hereunder :-

“27. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Code of Criminal Procedure would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. (Vide: Chitawan and Ors. v. Mahboob Ilahi MANU/UP/0178/1968 : 1970 Cri.L.J. 378; Deepak Thanwardas Balwani v. State of Maharashtra and Anr. 1985 Cri.L.J. 23; Habu v. State of Rajasthan MANU/RH/0023/1987 : AIR 1987 Raj. 83 (F.B.); Swarth Mahto and Anr. v. Dharmdeo Narain Singh MANU/SC/0272/1972 : AIR 1972 SC 1300; Makkapati Nagaswara Sastri v. S.S. Satyanarayan MANU/SC/0156/1980 : AIR 1981 SC 1156; Asit Kumar Kar v. State of West Bengal and Ors. MANU/SC/0062/2009 : (2009) 2 SCC 703; and Vishnu Agarwal v. State of U.P. and Anr. MANU/SC/0147/2011 : AIR 2011 SC 1232).”

16. Learned counsel for the petitioners/accused drew the attention of this Court to the decision of the Hon'ble Supreme Court in Shyam Deo Pandey & Ors. - Vs – State of Bihar (1971 (1) SCC 855), wherein vide a detailed judgment, the Hon'ble Supreme Court, while dealing with the powers of the appellate court in disposing of the appeal on merits, has held that the Court has to comply with the requirements as laid down u/s 385 and 386 Cr.P.C., by calling for records from the lower court and apply its mind on the same before order could be passed in the appeal. In the said context, the Hon'ble Supreme Court, held as under :-

“18. Coming to Section 425, which has already been quoted above, it deals with powers of the Appellate Court in disposing of the appeal on merits. It is obligatory for the Appellate Court to send for the record of the case, if it is not already before the Court. This requirement is necessary to be complied with to enable the court to adjudicate upon the correctness or otherwise of the order or judgment appealed against not only with reference to the judgment but also with reference to the records which will be the basis on which the judgment is founded. The correctness or otherwise of the findings recorded in the judgment on the basis of the attack made against the same, cannot be adjudicated upon without reference to the evidence, oral and documentary and other materials relevant for the purpose. The reference to "such record" in "after perusing such record" is to the record of the case sent for by the Appellate Court.

19. A reading of Section 423 makes it clear that a criminal appeal cannot be dismissed for default of appearance of the appellants or their counsel. The court has either to adjourn the hearing of the appeal in order to enable them to appear or it should consider the appeal on merits and pass final orders. The consideration of the appeal on merits at the stage of final hearing and to arrive at a decision on merits so as to pass final orders will not be possible unless the reasoning and Bindings recorded in the judgment under appeal are tested in the light of the record of the case. After the records are before the court and the appeal is set down for hearing, it is essential that the Appellate Court should: (a) peruse such record, (b) hear the appellant or his pleader, if he appears, and (c) hear the public prosecutor, if he appears. After complying with these requirements, the Appellate Court has full power to pass any of the orders mentioned in the section. It is to be noted that if the appellant or his pleader is not present or if the public prosecutor is not present, it is not obligatory on the Appellate Court to postpone the hearing of the appeal. If the appellant or his counsel or the public prosecutor, or both, are not present, the Appellate Court has jurisdiction to proceed with the disposal of the appeal; but that disposal must be after the Appellate Court has considered the appeal on merits. It is clear that the appeal must be considered and disposed of on merits irrespective of the fact whether the appellant or his counsel or the public prosecutor is present or not. Even if the appeal is disposed of in their absence, the decision must be after consideration on merits. Under Section 421 the Appellate Court has to decide whether the appeal is to be taken on file or dismissed summarily. The obligation of the court at that stage is only to peruse the petition of appeal and the copy of the order or judgment appealed against. A summary dismissal of the appeal will then be legal if the Appellate Court considers that there is no sufficient ground for interference. But even in such circumstances it has been held that a summary decision is a judicial decision which vitally affects the convicted appellant and in a fit case, it is also open to be challenged on an appeal before this Court. Though a summary rejection, without giving any reasons, is not violative of any statutory provisions, such a manner of disposal removes every opportunity for detection of errors in' the order. It has been further held that when an appeal in the High Court raises a serious and substantial point, which is prima facie arguable, it is improper for an Appellate Court to dismiss the appeal summarily without giving some indication of its view on the point. The interest of justice and fair play require that in such cases an indication must be given by the Appellate Court of its views on the point argued before it. The earliest decision on this aspect is the one reported in Mushtak Hussein v. The State of Bombay. [1935] S.C.R. 809. The entire case law has been referred to and reiterated in Govinda Kadtuji Kadam and Ors. v. The State of Maharashtra MANU/SC/0125/1970 : 1970CriLJ995 . The recent decision on this aspect is of Challappa Ramaswami v. State of Maharashtra. MANU/SC/0106/1970 : 1971CriLJ19 . We have referred to the above decisions to show that though a summary rejection by an Appellate Court under Section 421 may not be violative of the section, nevertheless when an arguable or substantial question arises for consideration, the Appellate Court in its order should indicate its views on such point. If the position is as indicated above that even under Section 421, which contemplates dismissal of an appeal summarily, under Section 423, in our opinion, a very rigorous test must be applied to find out whether the Appellate Court has complied with the provisions contained therein. There is no emphasis on the perusal of the record in Section 421 whereas under Section 423 one or the essential requirement is that the Appellate Court should peruse the record. There cannot be any controversy that Section 423 applies to cases in which appeals have been presented and admitted. Though Section 423 does not provide any limitation on the power of the Appellate Court that it is incompetent to dispose of the appeal, if the appellant or his pleader is not present, nevertheless there is a limitation. That limitation, which is provided by the section is that the Appellate Court, before disposing of the appeal, must peruse the record. No doubt if the appellant or his pleader is present, he must be heard. Similarly, if the public prosecutor is present, he too must be heard. The Legislature in Section 423 contemplates clearly that in certain cases a criminal appeal might be disposed of without hearing the appellant or any one on his behalf or the public prosecutor. The expression "after perusing such record" in the section is, in our opinion, a condition precedent to a proper disposal of an appeal either by dismissing the same or in any other manner contemplated in the said section. The powers which the Appellate Court in criminal appeals possesses are depicted in Section 423. It has power not only to dismiss the appeal but also pass any one of the orders enumerated in Clauses (a), (b), (c) and (d) and Sub-section (1A). These provisions show the enormous powers which the Appellate Court possesses in regard to a criminal appeal. These powers, it cannot be gainsaid are very vast. Any one of the orders, mentioned above, could be passed by the Appellate Court whether the appeal is disposed of on hearing or without hearing the appellant or his pleader. These provisions, in our opinion, clearly indicate the nature of a judgment or order that is expected of the Appellate Court in its judgment. It is in this context that the expression "after perusing such record" assumes great importance. Absence of these words in Section 421, brings out in bold contrast the difference in the nature of jurisdiction exercised under the two sections.

20. It is not necessary to deal exhaustively with the connotation of the expression "after perusing such record" occurring in Section 423(1). That will depend upon the nature of the order or judgment appealed against as well as the point or points that are taken before the Appellate Court. But one thing is clear. There must be a clear indication in the judgment or order of the Appellate Court that it has applied its judicial mind to the particular appeal with which it was dealing. Such an indication will be available when the Appellate Court has considered the material on record, which means not only the judgment and petition of appeal, but also the other relevant materials. The Appellate Court is bound to have looked into the judgment of the lower court appealed against. The petition of appeal must have also been looked into to know the nature of the attack that is made against the judgment. There will be other materials on record and they will have to be perused by the Appellate Court. The nature of such perusal to be indicated in the Appellate judgment may also differ under different circumstances.

21. Applying the above tests, we find that the order passed by the High Court in the case before us does not satisfy the above requirement. There is no indication in the order that it was passed "after perusing the record" that it must have sent for as required in the earlier part of Section 423(1). Admittedly the order does not state that the court has perused "such record" meaning the record sent for by it. On the other hand, the recital in the judgment is "on a perusal of the judgment under appeal, I find no merit in the case." Under Section 421, as we have already pointed out, the High Court should pursue the petition of appeal and the copy of the judgment or order appealed against. Even for a summary rejection under Section 421, apart from perusal of the judgment, it is obligatory for the Appellate Court to peruse the petition of appeal also. The High Court in this case has admitted the appeal under Section 421 and issued notice. By this it is clear that the High Court was of the opinion that there were arguable points raised in the appeal, which required consideration on merits under Section 423. Under Section 423 one of the important requirement is that the Appellate Court must peruse the record. Record of the case does not mean only the judgment, because that must have already been perused on September 9, 1966 under Section 421, when the High Court admitted the appeal. We have already pointed out that there is no indication in the order of the High Court that it has perused any record. Without a perusal of the record of a particular case and giving any indication of such perusal in the appellate order or judgment, an order, similar to the one in question could be passed in any criminal appeal in a routine manner, when the appellant or his pleader does not appear or even in appeals where parties have been heard. From the mere recital in the High Court's order that there is no merit in the case, it is not possible to infer that the High Court has come to that conclusion after applying its judicial mind and after perusing the record. In fact the conclusion that there is "no merit in the case" is arrived at, as the High Court itself says, only on the basis of its "perusal of the judgment under appeal". The requirement regarding the perusal of the record that has been sent for and received in court, before disposing of an appeal, is not to be treated as an empty formality, as is evident by the vast powers conferred on the Appellate Court to pass the various types of orders enumerated in the section. We are of the opinion, that in passing the impugned order the High Court has not considered the material on record before coming to the conclusion that there was no case for interference. As such the order is not in conformity with Section 423 of the Code; hence it has to be set aside.

17. Learned counsel further drew the attention of this Court to the Full Bench decision of the Rajasthan High Court in Habu – Vs – State of Rajasthan (AIR 1987 Raj. 83), wherein the Full Bench, in para-45 of the said order, after extensively dealing with the various issues, has summed up in regard to the issue, as has arisen before this Court for consideration, as under :-

“45. .....

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.”

18. Reliance was also placed on an unreported judgment of a learned single Judge of this Court in Kalaiselvi – Vs – Sivasubramanian (Crl. R.C. (MD) No.190 of 2016 – Dt. 13.06.2016). Particular reference was drawn to the succinct observation and conclusion of the learned single Judge in paras 5 to 9 of the order, which are extracted hereunder for better appreciation :-

“5. In a democratic country, one of the basis of personal freedom is having legal assistance. Equally if a person appeals as against his conviction, the said principles applies to the appeal proceedings. There is no disposal/dismissal of a criminal appeal for default. There cannot be an exparte judgment under criminal law. If an appeal is dismissed for default, it will result in conviction and the sentence get confirmed. However, it is without an hearing. It is against Article 22(1) of the Constitution of India and Sections 303 and 304 I.P.C.

6. Sometimes an appellant may fail to appear and prolongs the Criminal Appeal. Even then such absconding appellant must be given legal assistance through a lawyer. After that if the appeal is dismissed or allowed that is a different matter. In such circumstances, the Court has to engage some lawyer to represent the absentee appellant. The Court can appoint a legal aid counsel or lawyer as amicus curiae. Only after hearing on merits a conviction can be confirmed. It also equally applies to appeals filed as against order of acquittal.

7. In this case originally the accused was convicted in S.T.C.No.2880 of 2007 under 138 of N.I. Act by the learned Judicial Magistrate No.IV, Tirunelveli. Thereafter, he filed Criminal Appeal No.7 of 2015 which was pending before the learned I Additional Sessions Judge, Tirunelveli. On 01.12.2015, the learned appellate Judge passed the following order:

“This Criminal Appeal has been filed against the judgment of the Judicial Magistrate Court No.4, Tirunelveli in S.T.C.No.2880 of 2007 dated 18.12.2014. Appellant / Accused not present. Counsel for the accused not present. But counsel for Respondent present. Ready for Arguments. Further, this appellant side has not filed any fresh surety contemplated u/s 437(A) Cr.P.C. Sufficient time granted. Since no representation by counsel for the accused this criminal appeal is dismissed for default. Directed the lower court to execute the lower court judgment against the appellant/accused.”

8. It is seen that the learned Judge has dismissed the appeal for default. It means the conviction and sentence are confirmed without a hearing. It is not a merit disposal. A suit can be dismissed for default. But not a criminal appeal. So, the impugned judgment passed by the learned I Additional Sessions Judge is vitiated.

9. Ordered as under:

(1) Revision is allowed.

............”

In the above decision, the learned Judge has emphasised the importance of hearing of the accused before any adverse order is passed by the appellate court against the accused.

19. Attention of this Court was drawn to the decision of the Hon'ble Supreme Court in State of M.P. - Vs – Sughar Singh & Ors. (2010 (3) SCC 719), wherein the Hon'ble Supreme Court, realising that there was violation of principles of natural justice, recalled its own judgment. For reference, para-6 of the said decision, is extracted hereunder :-

“6. These Curative Petitions have been filed by accused No.2 (Raghubir) and by accused no.4 and 5 (Sughar Singh and Laxman) on the ground that acquittal of Bhoja, Raghubir, Puran and Balbir have been reversed without affording an opportunity of being heard. We see that there is serious violation of principles of natural justice as the acquittal of all the accused has been set aside even though only four of them were made respondents before this Court and the others were not heard. We are, therefore, constrained to recall the judgment passed by this Court in Criminal Appeal Nos.1362-1363 of 2004 on 7th November, 2008. Consequently, the accused Sughar Singh, Laxman, Onkar and Ramesh, if they are in custody, are directed to be released forthwith.”

20. Learned counsel for the accused, yet again, drew the attention of this Court to para-6 of the judgment of the Hon'ble Supreme Court in Surya Baksh Singh – Vs – State of U.P. (2014 (14) SCC 222), wherein the Hon'ble Supreme Court has laid emphasis on the requirement of compliance of Section 386 Cr.P.C. and also the importance of hearing the accused in the appeal. For better appreciation, para-6 of the said decision is extracted hereunder :-

“6. Section 386 of the Code of Criminal Procedure is of importance for the purposes before us. It requires the Appellate Court to peruse the records, and hear the Appellant or his pleader if he appears; thereafter it may dismiss the appeal if it considers that there is insufficient ground for interference. In the case of an appeal from an order of acquittal (State Appeals in curial parlance) it may reverse the order and direct that further inquiry be carried out or that the accused be retried or committed for trial. Even in the case of an appeal from an order of acquittal the Appellate Court is competent to find him guilty and pass sentence on him according to law. The proviso to this Section prescribes that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such a proposal, thereby mandating that an accused must be present and must be heard if an order of acquittal is to be upturned and reversed. It is thus significant, and so we reiterate, that the Legislature has cast an obligation on the Appellate Court to decide an appeal on its merits only in the case of Death References, regardless of whether or not an appeal has been preferred by the convict.”

21. Learned counsel for the accused also drew the attention of this Court to the judgment of the Hon'ble Supreme Court in Ashok Manikchand Chankeshwara & Ors. - Vs – H.R.Barge & Anr. (2007 (2) SCC 776), wherein a similar view has been taken by the Hon'ble Supreme Court on the factual matrix of that case, as is evident from paras 3 and 4 of the said decision, which are extracted hereunder for reference :-

“3. In the present case from the impugned judgment itself, it would appear that the accused were not represented by any counsel. It appears that they preferred an appeal through counsel but when the hearing of the appeal was taken up. nobody turned up on their behalf to press the appeal. The Court did not provide any counsel to the Appellants by way of legal aid, but after hearing the counsel appearing on behalf of the State disposed of the appeal and reversed the order of acquittal. In the facts and circumstances of the case, we are of the view that in the absence of the counsel, the High Court should have provided a counsel to the Appellants by way of legal aid and same having not been done, the impugned order is fit to be set aside, especially, in view of the fact that the Appellants have been found guilty in relation to an offence for which minimum sentence provided under law is ten years.

4. Accordingly, the appeal is allowed, impugned order rendered by the High Court is set aside and the matter is remitted back to that Court to dispose of the appeal in accordance with law after giving opportunity of hearing to the parties. The appeal shall be disposed of as expeditiously as possible.”

22. The decision of the Hon'ble Supreme Court in L.Laxmikanta – Vs – State (2015 (4) SCC 222), wherein, in para-19 of the said judgment, the Hon'ble Supreme Court found fault with the High Court for not providing an opportunity to the appellant/accused, and directed the High Court to provide the accused an opportunity by appointing an Amicus Curiae. The relevant portion of the said order is extracted hereunder :-

“19. Coming now to the last argument of the learned counsel for the appellant that the appeal should be remanded to the High Court for its rehearing afresh because no one appeared for the appellant in the High Court at the time of hearing of appeal which caused prejudice to the appellant. In our view, the High Court in such circumstances should have appointed any lawyer as amicus curiae on behalf of the appellant to argue the appellant's case instead of proceeding to decide the appeal ex parte on merits. Indeed, in our considered opinion, it was the appropriate course which the High Court should have followed for deciding the appeal finally on merits to meet such eventuality.”

23. Lastly, attention of this Court was drawn to the decision of the Hon'ble Supreme Court in Arun Kumar – Vs – State of Bihar & Ors. (2017 (6) SCC 765), wherein, in para-14 of the said judgment, the Hon'ble Supreme Court held as under :-

“14. It is true that the appeal before the High Court was against the acquittal order of the Sessions Judge whereby all the accused charged for the offences punishable under Sections 302/34, 201 and 307 IPC stood acquitted yet, in our considered view, the law laid down by this Court on the question of the powers of the appellate court while hearing the appeal arising out of the acquittal order of the Sessions Judge in Lalit Kumar Sharma v. State of W.B. [Lalit Kumar Sharma v. State of W.B., 1989 Supp (2) SCC 140 : 1991 SCC (Cri) 382] should have been kept in consideration by the High Court while hearing the appeal and further the High Court should have called for the record of the case from the trial court as provided under Section 385(2) of the Code which it seems was not called for.”

24. Learned counsel for the petitioners/accused drew the attention of this Court to the Criminal Rules of Practice, where reliance was placed on Rule 254, which reads as under :-

“254. (240-A) Funds for the poor accused in appeals against acquittal.- Full opportunity should be given to the accused person against whose acquittal an appeal has been filed, to attend, should he so desire, either personally or by a representative, when the appeal is being heard. To this end if the accused is in custody arrangements should be made if he should so desire, for him to be brought before the Appellate Court. If he is not in custody, an application for the grant of financial assistance, if desired, should be made by the accused person to the Collector of the district through the Court which tried and acquitted him; and the scale of allowance and batta to be sanctioned to him should be that ordinarily allowed to third class witnesses attending Criminal Courts.”

25. On the basis of the above referred decisions and the Criminal Rules of Practice, learned counsel for the petitioner summarised his arguments that the paramount consideration while deciding the appeal is that the accused has to be mandatorily heard and this Court has to follow the requirements of Sections 385 and 386 Cr.P.C. In such circumstances, the order passed by this Court without hearing the accused and without calling for the records from the lower appellate court is required to be recalled by invoking its inherent powers u/s 482 Cr.P.C.

26. Per contra, learned counsel appearing for the complainant strongly objected to the miscellaneous petitions filed by the accused u/s 482 Cr.P.C., for recall of the judgment stating that u/s 362 Cr.P.C., this Court has no power to alter or review the judgment, except to correct a clerical or arithmetic error. According to the learned counsel for the complainant, under the guise of recalling the judgment, the accused are indirectly calling upon this Court to review its own order and such a course is not available to the accused under the provisions of the Code of Criminal Procedure. The long and short of the submission of the learned counsel for the complainant is that in case the accused are aggrieved by the judgment of this Court, it is always open to them to approach the Hon'ble Supreme Court and it is certainly not open to them to file the present petitions invoking the inherent jurisdiction u/s 482 Cr.P.C. According to the learned counsel for the complainant, the power u/s 482 Cr.P.C. cannot be exercised by this Court to recall the judgment already passed by this Court as the exercise of such power would tantamount to reviewing the order passed by this Court, which is impermissible under the provisions of the Code of Criminal Procedure.

27. Learned counsel appearing for the complainant relied on the decision of the Hon'ble Supreme Court in Smt. Sooraj Devi – Vs – Pyare Lal & Anr. (1981 (1) SCC 500), wherein the Hon'ble Supreme Court held that the scope of review power u/s 362 Cr.P.C. is limited to clerical or arithmetical error which occurs by accidental slip and is an error apparent on the face of the record and does not depend for its discovery on argument or disputation. In the said context, the Hon'ble Supreme Court held as under :-

“4. The sole question before us is whether the High Court was right in refusing to entertain Criminal Miscellaneous Application No. 5127 of 1978 on the ground that it had no power to review its order dated September 1, 1970. Section 362 of the Code of Criminal Procedure declares: “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” It is apparent that what the appellant seeks by the application is not the correction of a clerical or arithmetical error. What she desires is a declaration that the High Court order dated September 1, 1970 does not affect her rights in the house property and that the direction to restore possession to Pyare Lal is confined to that portion only of the house property respecting which the offence of trespass was committed so that she is not evicted from the portion in her possession. The appellant, in fact, asks for an adjudication that the right to possession alleged by her remains unaffected by the order dated September 1, 1970. Pyare Lal disputes that the order is not binding on her and that she is entitled to the right in the property claimed by her. Having considered the matter, we are not satisfied that the controversy can be brought within the description “clerical or arithmetical error”. A clerical or arithmetical error is an error occasioned by an accidental slip or omission of the court. It represents that which the court never intended to say. It is an error apparent on the face of the record and does not depend for its discovery on argument or disputation. An arithmetical error is a mistake of calculation, and a clerical error is a mistake in writing or typing. Master Construction Co. (P) Ltd. v. State of Orissa [AIR 1966 SC 1047 : (1966) 3 SCR 99 : (1966) 17 STC 360] .”

(Emphasis supplied)

28. Learned counsel for the complainant placed reliance on the decision of the Hon'ble Supreme Court in Naresh & Ors. - Vs – State of U.P. (1981 (3) SCC 74), wherein the Hon'ble Supreme Court, in the facts of the said case held that the High Court was wholly wrong in altering the judgment pronounced while disposing the criminal appeals, which is in clear contravention of the provisions of Section 362 Cr.P.C.

29. Attention of this Court was drawn by the learned counsel for the complainant to the decision of the Hon'ble Supreme Court in Simrikhia – Vs – Dolley Mukherjee & Chhabi Mukherjee & Anr. (1990 (2) SCC 437), wherein the Hon'ble Supreme Court held that the inherent power of the High Court u/s 482 is intended to prevent the abuse of the process of the court and to secure ends of justice. Such powers are controlled by principle and precedent and cannot be exercised to do something, which is clearly and expressly barred under the Code. In the said context, the Hon'ble Supreme Court held as under :-

“3. The learned counsel for the appellant contended before us that the second application under Section 482 Cr.P.C. was not entertainable, the exercise of power under Section 482, on a second application by the same party on the same ground virtually amounts to the review of the earlier order and is contrary to the spirit of Section 362 of the Cr.P.C. and the High Court was, therefore, clearly in error in having quashed the proceedings by adopting that course. We find considerable force in the contention of the learned counsel. The inherent power under Section 482 is intended to prevent the abuse of the process of the court and to secure ends of justice. Such power cannot be exercised to do something which is expressly barred under the Code. If any consideration of the facts by way of review is not permissible under the Code and is expressly barred, it is not for the court to exercise its inherent power to reconsider the matter and record a conflicting decision. If there had been change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers in the prevailing circumstances and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court. Where there is no such changed circumstances and the decision has to be arrived at on the facts that existed as on the date of the earlier order, the exercise of the power to reconsider the same materials to arrive at different conclusion is in effect a review, which is expressly barred under Section 362.

* * * * * * * *

5. Section 362 of the Code expressly provides that 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 save as otherwise provided by the Code. Section 482 enables the High Court to make such order as may be necessary to give effect to any order under the Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The inherent powers, however, as much are controlled by principle and precedent as are its express powers by statute. If a matter is covered by an express letter of law, the court cannot give a go-by to the statutory provisions and instead evolve a new provision in the garb of inherent jurisdiction.

* * * * * * * *

7. The inherent jurisdiction of the High Court cannot be invoked to override bar of review under Section 362. It is clearly stated in Sooraj Devi v. Pyare Lal [(1981) 1 SCC 500 : 1981 SCC (Cri) 188] , that the inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The court is not empowered to review its own decision under the purported exercise of inherent power. We find that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials. The High Court has grievously erred in doing so. Even on merits, we do not find any compelling reasons to quash the proceedings at that stage.

(Emphasis supplied)

30. Attention of this Court was drawn to the decision of the Hon'ble Supreme Court in R.Rajeswari – Vs – H.N.Jagadish (2008 (4) SCC 82), wherein the Hon'ble Supreme Court held that the specific bar created in regard to exercise of jurisdiction of the High Court to review its own order by exercise of jurisdiction u/s 482 in the ordinary circumstances is wholly unwarranted, except in circumstances, where a judgment has been obtained by practising fraud.

31. Learned counsel for the complainant relied on the decision of the Hon'ble Supreme Court in Ajay Singh & Anr. - Vs – State of Chhattisgarh & Anr. (2017 (3) SCC 330), wherein, in paras 14 and 15, it has been held as under :-

“14. Section 362 has the heading “Court not to alter judgment”. The said provision is as follows:

“362. Court not to alter judgment.—Save as otherwise provided by this Code or by any other law for the time being in force, no court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”

15. Interpreting the said provision in the context of exercise of inherent power of the High Court under Section 482 CrPC this Court in Sooraj Devi v. Pyare Lal [Sooraj Devi v. Pyare Lal, (1981) 1 SCC 500 : 1981 SCC (Cri) 188] held thus: (SCC p. 502, para 5)

“5. 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. [Sankatha Singh v. State of U.P., AIR 1962 SC 1208 : (1962) 2 Cri LJ 288] ). 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 Court 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.”

We have referred to the aforesaid decision to illustrate that CrPC confers absolute sanctity to the judgment once it is pronounced. It does not conceive of any kind of alteration.

32. Reliance was placed on the decision of the Hon'ble Supreme Court in Kushalbhai Ratanbhai Rohit & Ors. - Vs – State of Gujarat (2014 (9) SCC 124), wherein it was argued that an order dictated in open court could not be reviewed or recalled as the same is impermissible in view of the provisions of Section 362 Cr.P.C., but the said argument was rejected on the ground that Section 362 Cr.P.C. puts an embargo to call, recall or review any judgment or order passed in criminal case once it has been pronounced and signed and in the said case before the Hon'ble Supreme Court, the order had not been signed. The Hon'ble Supreme Court went on to observe that a Judge's responsibility is very heavy, particularly in a case where a man's life and liberty hang upon his decision, nothing can be left to chance or doubt or conjecture. In the said context, the Supreme Court held as under :-

“7. We do not find any forcible submission advanced on behalf of the petitioners that once the order had been dictated in open court, the order to review or recall is not permissible in view of the provisions of Section 362 Cr.P.C. for the simple reason that Section 362 Cr.P.C. puts an embargo to call, recall or review any judgment or order passed in criminal case once it has been pronounced and signed. In the instant case, admittedly, the order was dictated in the court, but had not been signed.

* * * * * * * *

12. Thus, from the above, it is evident that a Judge's responsibility is very heavy, particularly, in a case where a man's life and liberty hang upon his decision nothing can be left to chance or doubt or conjecture. Therefore, one cannot assume, that the Judge would not have changed his mind before the judgment became final.”

33. Learned counsel for the complainant pressed into service the decision of the Hon'ble Supreme Court in Davindra Pal Singh Bhullar's case (supra) and submitted that the power u/s 482 Cr.P.C. Is intended to prevent the abuse of process of Court and to secure the ends of justice and that such power cannot be exercised to do something which is expressly barred under the Code of Criminal Procedure. This Court is in respectful agreement with the said proposition of law reiterated by the Hon'ble Supreme Court.

34. Learned counsel for the complainant drew the attention of this Court to the decision of the Division Bench of this Court in Suresh Rajan & Anr. - Vs – The Registrar General, High Court, Madras (CDJ 2014 MHC 1534). In the said decision, the Division Bench of this Court held as under :-

“17. We have carefully considered the above submissions. Though the case on hand, would not fall within the category of "review of judgment", it may fall under the category of "alteration of judgment". Any addition, deletion or modification of the contents of a judgment would certainly tantamount to an alteration of the judgment. Every word, every letter and every punctuation mark, in a judgment is of significance. A single fault on the phonetics, committed by King Pandia, resulted in the execution of Kovalan in Silapathikaram. The expression 'alteration' in relation to instruments, is defined in The Law Lexicon of P.Ramanatha Aiyar as follows:

"Alteration (of an instrument) is an act done upon an instrument by which its meaning or language is changed. If what is written upon, or erased from, an instrument has no tendency to produce this result, or to mislead any person, it is not an alteration.

"Technically, it is a change in an instrument by a party, thereto, or one entitled thereunder, or one in privity with such person, after the instrument has been signed or fully executed, without the consent of the other party to it, by an erasure, interlineation, or substitution of material matter affecting the identity of the instrument or contract, or the rights and obligations of the parties thereunder. The writing of words calculated to change the legal effect of the instrument is, to all intents as fully an alteration as an erasure and substitution."

18. An alteration may be a material alteration or an immaterial alteration or insignificant alteration. But nevertheless, an alteration in relation to a judgment, is always significant. This is why the law recognizes suo motu power of review only in relation to insignificant and immaterial alterations, such as correction of a clerical or arithmetical error. The very fact that the insignificant and immaterial changes are expressly allowed by law to be carried out would show that the general rule is that every material or immaterial change, tantamount to alteration of a judgment. Therefore, even an addition to a judgment would tantamount to alteration. Hence, we are of the considered view that the orders passed on 10.07.2013, 11.07.2013 and 23.07.2013 are hit by Section 362 Cr.P.C.”

35. Attention of this Court was drawn to the decision of a single Judge of the Delhi High Court in Mohit Bansal – Vs – State of N.C.T. of Delhi (CDJ 2014 DHC 2558), held that the Court, once it pronounces its judgment, becomes functus officio and it has no power to alter its own judgment and Section 362 Cr.P.C. acts as a bar to alter or review the same except for correction of clerical or arithmetical errors.

36. Reliance was placed on the decision of the Hon'ble Supreme Court in Mohammed Zakir – Vs - Shabana & Ors. (2018 (15) SCC 316 :: 2018 Supreme (SC) 768), wherein the Supreme Court held as under :-

“4. The High Court should not have exercised the power under Section 362 Cr.P.C. for a correction on merits. However patently erroneous the earlier order be, it can only be corrected in the process known to law. The whole purpose of Section 362 Cr.P.C. Is only to correct a clerical or arithmetical error. What the High Court sought to do in the impugned order is not to correct a clerical or arithmetical error; it sought to rehear the matter on merits, since, according to the learned Judge, the earlier order was patently erroneous. That is impermissible under law. Accordingly, we set aside the impugned order dated 28.04.2017.”

37. Lastly, the decision of a learned single Judge of this Court in Dhanam – Vs – The Deputy Superintendent of Police, CB-CID & Ors. (CDJ 2018 MHC 5737), was relied on to drive home the point that the exercise of power u/s 362 Cr.P.C. for correction on merits is patently erroneous and is impermissible in law. To this end, reliance was placed on the decision of the Hon'ble Supreme Court in Shabana's case (supra).

38. However, in Dhanam's case (supra), it would be relevant to take note of Para-8 of the said order, which has a bearing on the issue raised in the present petition. For better clarity, para-8 is quoted hereunder :-

“8. It is true that under the SC/ST Act and the amended Code of Criminal Procedure, the victim of a crime has a say and he/she is no more an orphan. Had Dhanam not been arraigned as a party in the earlier transfer application in Crl. O.P. No.11904 of 2018, then, there can be sufficient force in Mr.Sankara Subbu's contention. Whereas, Dhanam was arraigned as first respondent in Crl. O.P. No.11904 of 2018 and this Court, while passing orders in the said petition on 19.06.2018, has observed as under :-

“2. Notice was sent to the first respondent/de facto complainant; private notice has been served on the de facto complainant and proof of service has been filed. However, there is no representation for the first respondent/de facto complainant.

Hence, this is not a case where orders were passed without reference to Dhanam. After notice was served on Dhanam, she did not enter appearance and, therefore, this Court proceeded to pass orders on 19.06.2018.”

The facts of the abovesaid case clearly reveal that notice had been served in the said case on the de facto complainant; but in the present case, non-service of notice, before passing the order, is put in issue. Therefore, recourse taken to the ratio laid down in the said decision would not stand attracted to the case on hand.

39. Two other decisions of the Karnataka High Court have also been relied on by the learned counsel for the complainant, which pertains to the bar created by Section 362 Cr.P.C. against review or alteration of the order, which are in sum and substance the same to the orders quoted above, referred to by the learned counsel for the complainant.

40. According to the learned counsel for the complainant, the accused have deliberately avoided service of notice in order to frustrate the efforts made by the complainant in enforcing the debt against them. According to the learned counsel for the complainant, the accused were aware of the proceedings before this Court and despite being aware of the pendency of the appeals, they remained absent and, therefore, they ran the risk of judgment being passed against them by this Court. Therefore, the accused have no right to approach this Court after the judgment was passed against them and seek the indulgence of this Court to recall its judgment.

41. Heard the learned counsel appearing for the petitioners/accused and the learned counsel appearing for the respondent/complainant and perused the materials available on record to which this Court's attention was drawn as also the judgments on which reliance was placed by the learned counsel appearing on either side.

42. Before adverting to the submissions advanced by the learned counsel for the parties, it would be apposite to refer to the bar imposed on the Court u/s 362 Cr.P.C. and the power vested with this Court u/s 482 Cr.P.C., relating to review of the judgment passed in the appeal.

43. The heading of Section 362 Cr.P.C. reads as “Court not to alter judgment”, which reads as under :-

“362. Court not to alter judgment - Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”

44. Section 482 deals with the inherent powers of the Court to prevent abuse of the process of the Court and to secure the ends of justice. For better appreciation, the provision is extracted as hereunder :-

“482. Saving of inherent powers of High Court - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.”

45. Keeping the above provisions of the Code in mind, this Court will now proceed to dissect the materials on record to ascertain whether the recall of the judgment passed by this Court would stand hit by Section 362 Cr.P.C. or whether the inherent power of the Court u/s 482 Cr.P.C. could be pressed into service in the facts and circumstances of the case.

46. From the above decisions relied on by the learned counsel for the complainant, the legal position that emerges is that this Court, once passes its judgment in appeal, it cannot reopen, alter or review the same under the guise of exercising its inherent power u/s 482 Cr.P.C.

47. However, in regard to the factual submission made on behalf of the petitioners/accused that the accused were not properly served with notice through Court and/or also privately, a perusal of the order dated 21.1.19 reveals that in para-14 of the said judgment, this Court has recorded that despite notice having been served and the receipt of which having been acknowledged, there is no representation on behalf of the respondents. However, on the submission of the learned counsel for the petitioners/accused that no notice was served on them, this Court embarked upon verification of the said fact and on perusal of the records, it was found that the accused were indeed not served notice through Court informing about the pendency of the appeals before this Court. There is no material in the Court records to show that the accused were served notice in the appeals. Even the private notice ordered by this Court was returned unserved. Once the accused were not put on notice about the pendency of the appeals before this Court, this Court has to take a call as to whether non-service of notice on the petitioners/accused in the appeal proceedings is detrimental to the judgment and whether the appeal could be disposed of on merits, which disposal, in the circumstances of the case was adverse to the interests of the accused.

48. Indisputably, when an accused is convicted for an offence, the minimum requirement in terms of principles of natural justice is that he/she must be heard and that requirement cannot be dispensed with under any circumstances, since such requirement is a constitutional sanction and mandate and also to be in consonance with the Criminal Rules of Practice. As held by the Supreme Court in Davinder Pal Singh Bhullar's case (supra), if a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such eventuality the judgment is manifestly contrary to the audi alteram partem rule of natural justice.

49. The avowed rudimentary principle of natural justice is that no one shall be condemned unheard and principles of audi alteram partem is part of our constitutional scheme and under no circumstances, such opportunity could be given a go-by or ignored. In this case, although this Court has passed a judgment on 21.1.2019 in the absence of the accused, however, has failed in its constitutional duty to ensure that the accused were present and in case of any evasion by the accused to appear either in person or through counsel, ought to have atleast appointed a lawyer as amicus curiae to assist the Court on behalf of the accused. This Court has not chosen the constitutional path of providing an opportunity to the accused in terms of Articles 21 and 22 of the Constitution of India and yet disposed of the appeals without hearing the accused by confirming the conviction and sentence passed by the trial court.

50. The decisions relied on by the learned counsel for the petitioners/accused in regard to the inherent power of this Court u/s 482 Cr.P.C. for recalling its order, devolve upon a single legal principle that the accused must be heard before any adverse order could be passed in the appeal. Such legal principle, as enunciated by the Hon'ble Supreme Court and other High Courts, are universal in its application and cannot be subjected to any selective application depending on the facts of every case. The ultimate aim of justice delivery system is to ensure that the accused must be given reasonable opportunity to defend themselves before any adverse orders could be passed against them. In this case, unfortunately, the accused were not heard at all before judgment was passed by this Court on 21.1.2019.

51. Moreover, as contended by the learned counsel for the petitioners/accused, while passing the judgment on 21.1.2019, the requirement as envisaged u/s 385 and 386 Cr.P.C. have not been followed. As held by the Supreme Court in Surya Baksh Singh's case (supra), Section 386 Cr.P.C. is of importance for the simple reason that it requires the appellate court to peruse the records and hear the appellant or his pleader if he appears and, thereafter, pass orders. In the case of an appeal from an order of acquittal, it may reverse the order and direct further inquiry to be carried out or commit the accused for retrial or a fresh trial. Even in the case of an appeal from an order of acquittal, the appellate court is competent to find him guilty and pass sentence according to law. This proviso clearly prescribes that the sentence shall not be enhanced unless the accused has had an opportunity of showing cause against such a proposal, thereby mandating that an accused must be present and must be heard if an order of acquittal is to be upturned and reversed. The above view has been re

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iterated by the Hon'ble Supreme Court time and again and judgments on the said ratio relied on by the learned counsel for the petitioners/accused have held that such requirement is mandatory and need to be followed by the Courts while dealing with disposal of the appeals. Therefore , on this ground alone, the judgment dated 21.1.2019, passed by this Court in C.A. Nos.590 and 592 of 2018 is liable to be recalled as the statutory requirement was not adhered to. 52. Further, in regard to the vehement contention on behalf of the complainant about the impermissibility of altering or reviewing the judgment of this Court u/s 362 Cr.P.C., the decisions relied on by the learned counsel for the complainant does not in any way further the case of the complainant and the same would not have application to the issues that are placed before this Court for consideration. The issue that is placed for consideration before this Court is not the accused seeking any alteration or review of the judgment passed by this Court, but what the petitioners/accused are seeking is only recall of the judgment in view of the admitted fact that they were not heard by this Court when the conviction and sentence passed by the trial court against them was confirmed. Principles of natural justice warrant hearing of the accused before passing any adverse orders against them. The Hon'ble Supreme Court as well as the other High Courts have clearly held, without leaving any doubt, that recall of the judgment for the reason that the accused were not heard and on the ground that the requirements of Section 385 and 386 Cr.P.C. were not followed would not amount to altering or reviewing of the judgment u/s 362 Cr.P.C. 53. Further, the decision in Simrikhia's case (supra), relied on by the learned counsel for the complainant, in fact, goes to the aid of the petitioners/accused, rather than to the complainant. In the said decision, the Hon'ble Supreme Court has categorically held that in case of change in the circumstances of the case, it would be in order for the High Court to exercise its inherent powers and pass appropriate orders to secure the ends of justice or to prevent the abuse of the process of the court. In the case on hand, the fact that though no notice was served on the petitioners/accused, yet this Court had gone ahead and convicted and sentenced the accused without hearing them, on a wrong premise, thereby giving a go-by to the principles of natural justice. 54. Further, as laid down by the Hon'ble Supreme Court in Sooraj Devi's case (supra), a clerical or arithmetical error is an error occasioned by an accidental slip or omission of the court. In the case on hand, the clerical slip, that occasioned is the inadvertent observation of this Court in recording that notice has been served on the petitioners/accused, but they have not chosen to appear, when in fact no notice had been served on the petitioners/accused, as is evident from the records. 55. Therefore, in the above facts and circumstances, this Court is of the view that the contention on the part of the complainant in its entirety, which was premised on the embargo embodied u/s 362 Cr.P.C. is without any legal basis. Such contention on the part of the complainant amounts to misreading of the petition filed by the petitioners herein/accused for recall of the judgment of this Court as if the accused are attempting to seek the indulgence of this Court for altering or reviewing of the judgment passed by this Court. 56. Even otherwise, the inherent power vested in this Court u/s 482 Cr.P.C. cannot suffer from any limitation by any other provisions under the same statute as such inherent power must have broad application under the constitutionally guided justice delivery system. The invocation of power u/s 482 Cr.P.C. is not only for securing the ends of justice, but also to prevent miscarriage of justice. When the Court is confronted with a plea that the accused were wronged by the judgment of this Court as they were not heard before the disposal of the appeals, the Court cannot take refugee u/s 362 Cr.P.C., when more so the said stand of the petitioners/accused is borne out by records, as that would amount to limiting its own power in rendering justice to litigants. This is particularly so when the accused are sentenced by convicting them, where the standards of requirement are to be followed strictly and mandatorily without slightest departure from the statutory or constitutional requirement as envisaged under the Code of Criminal Procedure as well as under the Constitution of India. 57. The ultimate aim of this Court is to secure the ends of justice and in case the Court finds that the order has been passed without following the principles of natural justice, affecting the life and liberty of the citizens of this country, the Court has to live up to the expectation of its citizens than to shield itself by holding on to its judgment as if the judgment was so infallible even in the face of mandatory and procedural violation and constitutional infraction. Only then, the majesty of the Court and the prestige of the justice delivery system would stand enhanced in the eyes of the litigants. 58. This Court, therefore, accepts the plea of the petitioners/accused not only in the face of the various decisions and Criminal Rules of Practice relied on by the learned counsel for the petitioners/accused, but also in the light of the documents, which strengthens the stand of the petitioners/accused in the light of the ratio laid down in the very many decisions relied on by the petitioners/accused. On the other hand, the decisions relied on by the learned counsel for the complainant, though deal with the bar and the restriction imposed on the Court u/s 362 Cr.P.C., however, in the light of the plea, as established above, such decisions may not have much relevance to the point in issue placed for consideration before this Court. The scope of Section 362 Cr.P.C., is not a matter of dispute, but as held by the Full Bench of the Rajasthan High Court in Habu's case (supra), non-grant of hearing to the accused when the case falls within one of the three conditions laid down u/s 482 Cr.P.C. would vest the Court with power to recall the said judgment u/s 482 Cr.P.C. 59. In view of the narrative above, this Court is of the considered view that the judgment passed by this Court in C.A. Nos.590 and 592 of 2018 dated 21.01.2019 deserves to be recalled. Accordingly, the objections raised by the Registry are rejected and these criminal miscellaneous petitions, at the behest of the petitioners, are held maintainable. Consequently, the judgment dated 21.1.2019, passed by this Court in C.A. Nos.590 and 592 of 2018 stand recalled and the criminal appeals are restored back to file. 60. Registry is directed to number the criminal miscellaneous petitions and issue order copy to the respective parties quoting the number assigned to the criminal miscellaneous petitions. Further, Registry is directed to list the criminal appeals before the appropriate Court in the usual course.
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