YAMIN, J. - (1.) THIS is a third criminal misc. petition u/s. 482 Cr. P. C. and has been filed under the following circumstances:-
(2.) S. B. Cr. Appeal No. 543/1983 was heard by Hon'ble Mr. Justice M. A. A. Khan as he then was on 24. 7. 1997. None was present on behalf of appellants. Learned Public Prosecutor was heard. Judgment was pronounced on 17. 10. 1997 and the conviction of the appellant was altered from 364 to 365 IPC but since he and his brother Ram Chandra were granted anticipatory bail and had not remained in custody, the sentence awarded to them by the learned Sessions Judge was maintained while other persons was reduced to the period already undergone. The order-sheets of the appeal show that nobody put appearance on behalf of accused petitioner when the case was listed for hearing. Learned counsel for the petitioner Smt. Naina Saraf submitted that the appeal was decided without hearing the accused petitioners and there were so many points which could have been argued before the learned Appellate Judge and that the Hon'ble Supreme Court in case of Rishi Nandan Pandit & Ors. vs. State of Bihar (1) has held that proper course for the appellate court in case of absence of appellant's counsel in criminal appeal, it was advisable for the High Court to appoint an amicus curiae. Her main thrust has been that the accused petitioner should be given an opportunity to be heard. She also cited the decision in case of Habu vs. The State of Rajasthan (2), a judgment of Division Bench of this Court, in which the substantial question was whether the judgment given in absence of the appellant or his counsel but the case decided on merits can be recalled by the Court in its inherent powers U/s. 482 Cr. P. C. In this judgment, it was held that the power of recall is different from power of altering or reviewing judgment and that can be exercised for recalling the judgment in case hearing is not given to an accused when the case falls within one of the three conditions laid down U/s. 482 Cr. P. C. The ratio decidendi in this case is that it is not in every case that the judgment may be recalled. Such a situation arose before the Hon'ble Supreme Court in case of Bani Singh & Ors. vs. State of U. P. (3), in which it was held that the Appellate Court was not obliged to adjourn the matter if the appellant or his counsel are absent. It can very well dispose of the appeal after perusal of the record and judgment of the trial court. But if the appellant is in jail and his counsel is not present, the court should adjourn the case to facilitate the appearance of the appellant and in an appropriate case, the court can appoint a lawyer at State expense to assist it. On the other hand, learned Public Prosecutor submitted that the petitioner had filed two petitions U/s. 482 Cr. P. C. before the learned Judge who had decided them on merits and there is nothing new in this petition. Mrs. Naina Saraf replied that the first petition U/s. 482 Cr. P. C. was dismissed because the counsel was not present and that there is definite change in the circumstances in the sense that now the accused petitioner is undergoing sentence and hence the application should be allowed. She cited the decision in case of Dr. Padam Kumar Jain, RHJS vs. State of Rajasthan (4) and submitted that third petition was not barred. So far first petition is concerned, I find that the argument of Smt. Naina Saraf is not correct as Mr. P. K. Sharma on behalf of Mr. B. M. Singh was present who had sought an adjournment which was not granted. The petition was dismissed on 22. 1. 99 after hearing the counsel in S. B. Cr. Misc. Petition No. 1079/98 by the Judge who had decided the appeal. The second petition u/s. 482 Cr. P. C. bearing No. 947/99 was also decided on merits after hearing both the parties on 2. 11. 99 as this successive application was filed without any change in the facts of the case and without showing any injustice being caused to the applicant. This second petition was filed by Ram Prasad and Ram Chander both. Now this third petition u/s. 482 Cr. P. C. has been filed only by Ram Prasad and it has been submitted by Smt. Naina Saraf that there is a change in the circumstances because the accused petitioner is undergoing sentence and has already undergone for more than a year. She submitted that a great injustice has been done to the petitioner as the co-accused persons have been sentenced to the period already undergone while the sentence of the petitioner has been maintained. She submitted that it was necessary in the facts and circumstances of this case that the petitioner may be given a chance to be heard as some points were material in the case. After having considered the arguments of both the parties, I am not inclined to grant this petition U/s. 482 Cr. P. C. as no injustice appears to have been caused to the accused petitioner. The learned Judge who had decided the appeal has since retired, this third-petition u/s. 482 Cr. P. C. is liable to be dismissed because there was no abuse of the process of court or it is not otherwise necessary to interfere in order to secure the ends of justice as it appears that the full justice has already been done.
(3.) CONSEQUENTLY, there is no force in this petition and it is hereby dismissed. .;