N.G.Das, J. - (1.) This petition under section 482 of Cr. P. C. has been filed by the petitioner Shri Ram Nihara Pandit for setting aside the judgment and order dated 3.3.94 passed by this Court in Criminal Revision No. 46/1989. The only question which calls for consideration in this petition filed under section 482 of Cr. P.C. is that whether the High Court has jurisdiction to entertain an application for modification of the sentence after the judgment has been passed on merit.
(2.) Mr G.P. Bhowmik, the learned counsel appearing on behalf of the petitioner has strenuously contended that under the provision of section 482 of Cr.P.C. then: is scope for re-hearing the case, where it is not disputed that the judgment in question was passed without hearing the counsel for the petitioner. It is true that the judgment in question, was passed without hearing learned counsel for the petitioner. But a bare perusal of the records will make it abundantly clear that the learned counsel for the petitioner was not available when the case was taken up for hearing. So, there is a distinction between the contention that when the case was disposed of without hearing and the when the lawyer for the party was absent without assigning any reason. In the instant case it cannot be said that no opportunity to the counsel for the petitioner was given when the case was called on for hearing. The observation made in Para 2 of the judgment clearly shows that not only the learned counsel for the petitioner was absent at the time when the case was called on for hearing, but the court also sent for the learned counsel for the petitioner. But unfortunately he could not be traced out and when this fact was reported to the court the court took up the matter for its disposal on merit and on perusal of the judgment I find that the judgment was passed after appreciation of the facts. I am, therefore, of opinion that so far as this case is concerned it cannot be said that no opportunity was given to the petitioner or his counsel for hearing.
(3.) Mr. Bhowmik has however cited a decision of Kerala High Court in the case of Rajan Kumaran, petitioner Vs. Vijayan Achuthan and others, respondents, reported in 1970 Cri. L. J. 1547. On going through the judgment I am of the view that this judgment does not support the contention of Mr. Bhowmik. Under Para 3 of the judgment the learned Judge also quoted another decision rendered in the: case of the State Vs. Kujan Pillai AIR 1952 Travancore Cochin 210. In that case learned Judges held : "Practically all the High Courts in India are unanimous in their view that the High Court has no power to review or alter its judgment in a criminal case except in the case mentioned in S. 369 of the Criminal P.C. or where the court has acted without jurisdiction, or where it has decided the case without giving an opportunity to a party for being heard, and that S. 561 A does not confer on the High Court any such power ... In the case of absence of jurisdiction the case can be treated as one not valid in law and the passing of a fresh judgment cannot in strict sense be regarded as altering or reviewing a prior judgment. With regard to cases in which the parties were not given an opportunity for being heard it may be taken to be an implied condition of such judgment or order that it should be open to reconsideration at the instance of the party prejudicially affected. The power of the Court to reconsider the matter is implied in the very nature of an ex parte decision.";