N. K. Mehrotra, J. - (1.) THIS is an application for recall of the order dated 27.5.1999 passed by this Court.
(2.) HEARD the learned counsel for the applicant and the learned Additional Government Advocate. It appears that the Criminal Revision No. 202 of 1984 was filed against the judgment and order dated 5.4.1984, passed by the Vth Additional Sessions Judge, Hardoi, convicting and sentencing the revisionist to undergo a sentence of eight months R.I. and a fine of Rs. 1,000 by confirming the judgment and order of the Judicial Magistrate, Sadar, district Hardoi. This revision was dismissed by order dated 27.5.1999 by Hon'ble Naseemuddin, J., who has now retired. Therefore, this application for recall has been listed for hearing before this Bench. The application for recall has been moved on 2.7.2003. It is accompanied by an affidavit. In para 2 of the affidavit, it is stated that the revision has been dismissed in default. This fact is incorrect. The revision was dismissed after discussing the merits of the case. No doubt, the revisionist was not heard. The grounds for recalling the order are alleged in paras 3 and 4 of the affidavit. The alleged ground is that on 27.5.1999 Shri A. R. Masoodi, advocate engaged by the revisionist sent an illness slip to the Bench Secretary making a request to adjourn the case but some how the illness slip could not be placed before the Hon'ble Court. These two paragraphs have been verified on the basis of personal knowledge. This version is not correct because the revisionist was not present in the Court and he cannot have personal knowledge. Shri A. R. Masoodi has not come forward to file the affidavit or to represent this revisionist and submit before this Court that his illness slip was not presented before this Court at the time of hearing. In para 5 of the affidavit it has been stated that the applicant revisionist came to know about the dismissal of the revision on 22.6.2003 when the police personnel reached the house of the deponent with warrant issued by the Chief Judicial Magistrate, Hardoi. It is shocking that the C.J.M. executed the order of this Court dated 27.5.1999 after a period of more than four years. These state of things cannot be tolerable by this Court. It is another shocking event that the police of the area is in collusion with the revisionist by giving him a liberty to remain enlarge by avoiding the orders of this Court for which the S.S.P., Hardoi, will take suitable action against the police of that particular area.
(3.) THIS application for recall has been filed on 2.7.2003. It is gross misuse of the judicial process. There can be no end for moving the application for recall even after a decade if, such applications are allowed. Now, I come to the point as to whether this application for recall is legally maintainable or not. The learned counsel for the applicant has referred the judgment of this Court in Badloo v. State, 1990 (3) ACrR 2727 (LB). This judgment has been discussed in Criminal Misc. Application No. 5626 of 2002 and other connected applications arising out of Criminal Revision No. 27 of 1993 decided on 1st April, 2000 and I have already given a judgment that this judgment is not conclusive. The facts of the case in which this order was passed in Badloo v. State (supra), are not similar to the facts of this case. The Hon'ble single Judge in Badloo v. State (supra), relied on two Full Bench decisions of Rajasthan High Court and Allahabad High Court in Habu v. State of Rajasthan, AIR 1987 Raj 83 and Raj Narain v. State, AIR 1989 All 315 and Makkapati Nageshwara Shastri v. S. S. Satya Narain, AIR 1981 SC 1156 and held that it would be unfair to punish the revisionist for the illness of his counsel and justice demands that the ex parte order dated 25.9.1997 should be recalled and the revisionist should be given an opportunity of hearing in revision. In Badloo v. State (supra), the revision was dismissed in default and first restoration application was also dismissed in default and the absence of the counsel was explained which facts are not available here.;