- (1.) THIS is an application under Section 561-A of the Code of Criminal procedure with a prayer that this Court may recall its judgment dated 25-5-1973 whereby it dismissed criminal Appeal No. 2849 of 1970. This application' originally made before Hon'ble Mr, Justice H. N. Kapur who had decided the appeal, but he referred it to a larger Bench for an authoritative pronouncement and it is in these circumstances that this case has come before us.
(2.) THE applicants were convicted by the Temporary Sessions Judge, etah under Sections 147, 304/149 and 323/149 I. P. C. by his order dated 17-12-1970 and they were sentenced to different terms of imprisonment. The applicants preferred the aforesaid appeal to the hon'ble Court against their conviction and sentences and the memo of appeal was presented by Sri Sudhir Chandra Varma, Advocate. The applicants were granted bail at the time of the admission of the appeal but before the date of final hearing the applicants engaged Sri Rajesh ji Varma. Advocate, and he filed his appearance slip on behalf of the applicants on 15-5-1973. The version of the applicants is that the appeal was listed for final hearing on 17-5-1973 for the first time before Hon'ble Mr. Justice H. N. Kapur but the name of Sri Rajesh Ji viarma was not shown in the cause list owing to the mistake of the office of the High Court and only the name of Sri Sudhir Chandra varma, Advocate, who had no instructions to argue the above appeal, was shown in the daily cause list. The same mistake was repeated on 18th May, 21st May, 22nd May, 23rd May. 24th May and 25th May, 1973 by the office of the High Court arid ultimately the appeal was dismissed on 25-5-73 by Hon'ble Mr. Justice H. N. Kapur. The result was that Sri Rajesh Ji Varma was unable to appear on behalf of the applicants and argue the appeal owing to a default of the office of the high Court. It has also been stated by Babu Ram. one of the applicants, in his affidavit filed in support of the application under section 561-A of the Criminal Procedure Code that Sri Sudhir Chandra varma had no instructions to appear on behalf of the applicants at the stage of final hearing, It is alleged that the mistake of the office of the high Court in printing the cause list resulted in great prejudice to the applicants who were sentenced to five years' rigorous imprisonment each, without any hearing being given to the counsel of their choice. In these circumstances it 'has been prayed that the order of this Court dismissing the appeal may be reviewed.
(3.) THE application was strongly contested on behalf of the State, although no counter-affidavit was filed. Since the facts are more or less admitted and relate to matters on record of the High Court, the case must be decided on legal grounds and the applicants cannot succeed on the mere ground that facts were not controverted by means of a counter-affidavit. The application was resisted by Sri S. V. Goswami who appeared on behalf of the State and contended that the facts did not establish that the applicants were not defended by a counsel of their choice and the omission of the name of Sri Rajesh Ji varma in the cause list at the time of the final hearing of the appeal did not contravene any provisions of law or the Rules of Court or the principles of natural justice. The appeal was actually argued by Sri sudhir Chandra Varma, Advocate and the case was decided after hearing him. who was a counsel of the applicants' choice and merely because another counsel was also subsequently engaged, the advocate who filed the appeal did not cease to be a counsel of the applicants' choice. Admittedly no instructions were given by the applicants to the office of the High Court that instructions had been withdrawn from Sri Sudhir Chandra Varma appearing in the case.;