N.K. Mehrotra, J. - (1.) THIS is an application under Section 482 of the Code of Criminal Procedure for restoration of the Criminal Appeal No. 44 of 1984 Maqbool alias Jhulan and Ors. v. State, to its original number.
(2.) THIS appeal was decided on 11.7.2003 on merit. It is the second time when this appeal was disposed of on merit. Again an application for restoration has been moved. It is alleged in this application that Appellant No. 1 Maqbool alias Jhulan died on 18.1.1992 after filing of the appeal. The main ground for recalling the order dated 11.7.2003 is that the learned Counsel for the Appellants Shri Z. Jilani, advocate was busy in Court No. 17 before the Full Bench dealing with the 'Babri Masjid and Ram Janam Bhumi' matter and the other counsel engaged by the Appellant was elevated to the Bench. It is stated that the appeal in question could be dismissed for non -prosecution. The appeal could not be attended by Shri Izhar Hussain Siddiqui, the Brief Holder of Shri Z. Jilani, advocate because he was out of station on that date. In these circumstances, nobody appeared from the side of the Appellant. The facts of this case are very material before passing any order on this application for restoration. These facts as noted in the judgment dated 11.7.2003 are as follows: This appeal was disposed of on merit on 19.3.1999 in the absence of the accused Appellants and the impugned judgment and order was modified from the punishment of imprisonment to the punishment of fine. The Appellants moved a Misc. Application No. 1454 of 1999 for recall of the order dated 19.3.1999. This application was moved on 16.6.1999. The application was allowed by this Court vide order dated 27.8.2002. Since, then the appeal was pending. It was listed for hearing. After the restoration of the appeal, it was listed on 10.9.2002, 24.9.2002, 22.10.2002, 18.11.2002, 10.2.2003, 14.5.2003 and 1.7.2003. On these dates, it was adjourned two times at the request of the learned Counsel for the Appellants. Lastly, it was listed on 1.7.2003. Then again Appellants became absent. Neither the counsel nor the Appellants were present to make any submission in support of the merit of the appeal. Further this appeal was decided after referring the following facts: Since the appeal is of the year 1984 and there was a sufficient notice to the Appellants counsel, it was considered proper in the interest of justice to dispose of the appeal on merit after following the decision of the Hon'ble Supreme Court in Bani Singh and Ors. v. State of U.P. : AIR 1996 SC 2439, wherein it was held by the Hon'ble Supreme Court that: It is the duty of the Appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385 and 386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the Appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the trial court. In this case, it was not found fit to grant indulgence after seeing the delaying tactics of the Appellants especially when once the appeal was decided and this Court took a lenient view to give another opportunity of hearing by recalling the judgment and order dated 19.3.1999.
(3.) THE learned Counsel for the Appellants has placed three arguments for recall of the order firstly ; the observation of the Hon'ble Supreme Court in Para 15 in Bani Singh and Ors. v. State of U. P. : AIR 1996 SC 2439, secondly ; earlier also the appeal was disposal of on merit but it was restored by this Court, and thirdly ; this Court can exercise the power under Section 482 of the Code of Criminal Procedure for recalling the judgment dated 11.7.2003.;