R.B.Lal, J. - (1.) This is an application by Rajul and Saukhi Lai appellants in Criminal Appeal No. 2770 of 1977 for recalling the judgment and order dated 6-11-1981 passed by me in that appeal and for listing the said criminal appeal again for hearing in presence of their counsel Shri Kundan Singh.
(2.) Criminal appeal No. 2770 of 1977 Rajul and Anr. v. State Under Sections 392/397 IPC was listed for hearing on 6-11-1981. Names of Shri V. G. Katiyar and Shri Kundan Singh. Advocates were shown in the list as counsel for the appellants. Shri V. C. Katiyar did not appear to argue the appeal. An illness slip was filed on behalf of Shri Kundan Singh, but it was not accepted under the impression that the memo of appearance did not bear the signatures of Shri Kundan Singh, Advocate and he was not the counsel for the appellants. This impression was caused on account of the order dated 10-8-1981 passed by Hon'ble Mohd. Hamid Husain J. on the order sheet. On 10-8-1981, the appeal had come up before him for hearing and no one had appeared on behalf of the appellants to argue the appeal. Then he noticed that the memo of appearance did not bear the signature of Shri Kundan Singh. Since the appellants were awarded a sentence of R. I. for seven years by the trial Court, he considered it desirable, in the interest of justice, that a fresh notice be issued to the appellants to engage a counsel. On 6-11-1981 it was found that the appellants had been personally served with the notices issued in pursuance of the order dated 10-8-1981, but there was no fresh memo of appearance on behalf of the appellants after this service of notices on them. In these circumstances I perused the record of the lower court myself and decided the appeal by judgment and order dated 6-11-1981.
(3.) In the present application, Shri Kundan Singh, learned Counsel for the applicants-appellants has pointed out that he had filed a properly signed memo of appearance in the office on 14-12-1977, but it was not placed on the record, and therefore, it did not come to the notice of Hon. Mohd. Hamid Hussain J., and his Lordship passed the order dated 10-8-1981. He has further pointed out that after service of notices on the appellants, he had filed another memo of appearance in the office on 2-9-1981, but that memo was also not placed on the record by the office. His name was, therefore, rightly shown as counsel for the appellants in the cause list dated 6-11-1981. Shri V. C. Katiyar, Advocate had no instructions and had conveyed this to the Bench Secretary on 10-8-81 and it was for this reason that order was passed for issue of fresh notices to the appellants. The learned Counsel has further urged that if the filing of fresh memo of appearance had come to my notice, I would not have declined to accept his illness slip on 6-11-1981 and surely adjourned the hearing of the appeal for the day. His absence on 6-11-1981 was not deliberate and in the interest of justice, the order and judgment dated 6-11-81 should be recalled and he should be afforded an opportunity to argue the appeal.;