- (1.) THE revisionist-applicant Badloo was convicted under Section 326 of I. P. C. and sentenced to a period of two years R. I. by the Judicial Magistrate, Lucknow. His appeal (Crl. Appeal No. 104/82) was also dismissed on 4-11-82 by the learned Sessions Judge, Lucknow. He preferred a Criminal Revision No. 612 of 1982 against the judg ment dated 4-11-82, but it was also dis missed by this Court on 25-9-97 without hearing the revisionist or his counsel. His counsel Sri Arun Sinha moved application (Crl. Misc. Case No. 2277/98) for recalling the said order dated 25-9-97 on the ground that he could not appear on 25-9-97 due to his illness and illness slip was sent when this recall application came before the Court on 8-12-98 for orders, his junior Sri Gautam appeared and told the Court that Sri Sinha was unable to appear due to his illness. This Court, however, rejected the recall application.
(2.) SRI Arun Sinha has now moved this second recall application (Crl. Misc. Case No. 2746 of 1998) under Section 482 of the Code of Criminal Procedure for setting aside dismissal order dated 25- 9-97. Al legations have been supported by affidavit of one Ram Gopal, the brother of the revisionist. The ground is that the counsel SRI Arun Sinha could not appear and make submissions in support of the revision, due to his illness. There is no counter- affidavit to controvert the factum of illness of SRI Arun Sinha. What the learned counsel for the State argues is that since the order of dis missal dated 26-9-97 is on merits and since the first restoration application has also been rejected on 8-12-98, so it is not open to this Court to review or reconsider its order dated 26-9-97. According to him, Section 362 of the Code of Criminal Proce dure prohibits the Court from reviewing the final orders passed in proceedings under the Code. He has cited the cases of Srikant Srivastava v. State of U. P, reported in Crimes V-1985 (1) Page 924 and Parasuram Patel and another v. State of Orissa, (1994) 4 SCC 665: 1995 (1) JIG 560 (SC ). On the other hand, learned counsel for the applicant Badloo has argued that his application is for recalling the order dated 25-9-97, which was passed without hearing him or the revisionist and not for reviewing or reconsidering the said order on merits. His argument is that recall is wholly different to the review. Learned counsel argues that Section 362 of the Cr. P. C. does not prohibit recall of such orders, with a view to secure ends of justice. He submits that this Court has ample powers under Section 482 of the Code, to recall such ex parte orders. He places reliance on a Full Bench decision of Rajasthan High Court, rendered in Habu v. State of Rajas than, AIR 1987 Rajasthan 83.
(3.) IT is a fact that order dated 25-9-97, by which the revision was dismissed by this Court, was passed in absence of the revisionist and his counsel. In other words, revision was dismissed without hearing the revisionist or his counsel. IT is also not in dispute that first restoration application was also dismissed in absence of the senior counsel. On both the dates Sri Arun Sinha, learned counsel for the revisionist- applicant was ill. The question is as to whether this Court has powers under Sec tion 482 of Cr. P. C. to recall the order dated 25-9-97 so as to afford an opportunity of hearing to the revisionist or his counsel. Srikant Srivastava's case (supra) cited by the learned counsel for the State does not help him at all. In that case the Magistrate had consigned the record of the criminal case because none for the prosecution responded. The first restoration applica tion was also rejected. The second restora tion application was moved. The point was raised before the Court that second res toration application did not lie. This Court repelled the contention and took the view and said: "in the instant case, by order dated 27th November, 1980 the Magistrate only dismissed the restoration application as nobody appeared on behalf of the prosecution. IT cannot be called a judgment or final order disposing of the case. In the circumstances the principles of Section 362 of Cr. P. C. would not be applicable in the instant case. If an application for restoration is dismissed in default, in my opinion, it is always open to a party to move another application for restoration, as I do not find any such prohibition in the Criminal Procedure Code. " This Court did not rule in the said case that second application for restora tion did not lie for recalling the order of the nature, passed by the learned Magistrate in that case. The view taken was that an order, not falling within the definition of judgment or final order dis posing of the case, could be recalled, even if first application for recall had already been dismissed. In Parsuram Patel's case (supra), cited by the learned counsel for the State, the question involved was not as to whether an order passed in absence of the revisionist or appellant, could be recalled under inherent powers of this Court. What the Hon'ble Apex Court said was that an appeal could be disposed of on merits, even in absence of the appellant or his counsel. So I think this case does not help the learned counsel for the State so as to say that the order dated 25-9-97 passed in absence of the revisionist and his counsel, cannot be recalled under Section 482 of the Code.;