- (1.) THIS is an application under sec. 561-A of the Criminal Procedure Code for the re-hearing of a revision petition which has been dismissed by this Court on the 5th of August, 1953.
(2.) SIX persons, namely Jamal, Subhan, Gulam, Mst. Sakina, Mst. Halima and Mst. Jatoon were convicted by the Sub-Divisional Magistrate Ratangarh under sec. 5 of the Influx from Pakistan (Control) Act. (No. XXIII of 1949 ). Their appeal was dismissed by the Additional Sessions Judge, Churu, on 30th June, 1952. Thereupon they filed a revision petition in this Court. It came for hearing on the 5th August, 1953. The petitioners or their counsel were not present at that time. The Court, however, looked into the record of the courts below and dismissed the application on merits. The petitioners' counsel has now presented an application saying that on the afternoon of the 4th August, 1953, he came to know from the cause-list prepared in the office that this case would not be taken up for hearing as Single Bench would not be formed owing to the absence of a Judge from Jodhpur. He says that under the bona fide belief that the cause would not be taken up on the 5th August, 1953, and that it would be adjourned, he went to village Kuchera on a condolence visit. On his return to Jodhpur on the 6th August, he came to know from the office that another cause-list was prepared for hearing Single Bench cases in the late hours of the day after 5 P. M. and this case was included in that list. The case was thus heard ex parte on 5th August, 1953, and therefore, this Court should exercise its inherent powers and give a re-hearing to the revision petition. The learned Assistant Government Advocate opposes the application. He says that although the applicants' learned advocate has filed an affidavit in support of the application, that affidavit is very vague, for it does not mention as to who was the person whom he contacted in the office. It is further urged that the date of the cause-list shows that it was prepared as usual on the 4th August, 1953, and the applicants' learned advocate should not have left the place within making it sure that the case would be adjourned. According to him, the learned advocate had no good grounds to believe that his case would be adjourned. From the affidavit filed by the applicants' learned advocate I find that it is really very vague because it only says that he had come to know in the afternoon of 4th August, 1953, from the cause-list prepared in the office that this case would not be taken up for hearing as Single Bench would not be formed on account of the absence of a Judge from Jodhpur. He further says that on his return to Jodhpur, he came to know on the 6th August, 1953, that another cause-list was prepared in the late hours of the day. In the first instance, learned advocate has left it conveniently vague as to who was the person from whom he came to know that the case would not be taken up for hearing on the 5th or that the cause-list was prepared in the late hours of the 4th August. In the fort-nightly cause-list it was shown that his case would be taken up on the 5th August, 1953. The cause-list of the 5th August also shown that it was prepared on the 4th August, 1953. The applicants' learned advocate now says orally that he had seen a cause-list with a clerk of another advocate in the office. That clerk's name is also not disclosed. Even if it be a fact that learned counsel did see some cause-list with another advocate's clerk, he should not have led himself to think that no Single Bench would be formed on the 5th August, 1953 without enquiring from a responsible officer of the court. It is urged by the applicants' advocate that Dave J. had gone to Jaipur and, therefore, he thought that Single Bench may not be formed. It is true that Dave J. had gone to Jaipur but according to the previous programme he was to return to Jodhpur on the morning of the 5th and the causelist was also prepared according to the previous programme. No special instructions were issued on the 4th August, 1953. There were a number of cases fixed for the 5th August and no other advocate or party was misled. If the learned advocate misled himself in a wrong manner he himself is to blame. It may be pointed out that sometimes after the usual daily cause-list has been ready, a supplementary cause-list is prepared in late hours on special instructions of the Court, but no such supplementary cause-list for 5th August was prepared either. The applicant's learned advocate has next argued that even if this Court believes that there was carelessness on his part, the application should be reheard for the sake of justice. In support of his argument, he has referred to the following three cases, namely, Mathuradas vs. Emperor (1) ( (1927) 99 Indian Cases, 1039.), Emperor vs. Shivdat (2) ( (1929) 111 I. C. , 573) and Chandrika vs. Rex (3) (A. I. R, 1949 All. , 176. ). In the first case of Mathuradas vs. Emperor (l) it appears that conviction of the accused was changed by the court from secs. 408 to 403 I. P. C. but the sentence which was passed by the lower court u/s. 408 was maintained. The accused presented an application under sec. 561a Cr. P. C. for reconsideration of the sentence. It was opposed by the Asstt. Legal Remembrancer but the Court observed that "the object of enacting sec. 561-A was to enable the High Court, when the ends of justice require, to make such orders as might be necessary and it is in no way limited or governed by sec. 369 of the Criminal Procedure : Code. " In that case a sentence of two years' rigorous imprisonment and a fine of Rs. 200/- was imposed under sec. 408 I. P. C. and the same was first maintained u/s. 403 I. P. C. The court, however, felt that this was the maximum sentence prescribed for offence under sec. 403 and therefore while altering the conviction from one under sec. 408 to that under sec. 403 I. P. C. it should not have maintained the same sentence because the court below would not have passed the maximum sentence allowable by that section under the circumstances of that case. It was in those extra-ordinary circumstances that the court exercised its inherent powers under sec. 561a Cr. P. C. to correct its own order. This case has no bearing on the facts and circumstances of the present case. In the next case of Emperor vs. Shivdat (2) (A. I. R. 1949 All. , 176.) it was no doubt held that: - "where owing to counsel's carelessness in not appearing in the court at the time when a case is called on for hearing, his client's case goes unrepresented and an ex parte order is passed, the High Court has jurisdiction under sec. 561a of the Criminal Procedure Code to entertain an application to re-hear the matter, if, in its discretion, it considers it necessary to do so in order to secure the ends of justice. " Reliance in this case was placed on the previous case of Mathuradas vs. Emperor (1) ( (1928) 111 I. C. , 573.) referred above. The matter had gone to the High Court on a reference by the Sessions Judge and the Court in the particular circumstances considered it proper to give it a rehearing in the presence of the counsel for the accused. The observation of the Court made above should be taken to be applicable in the particular circumstances of that case. I do not think that the learned Judge meant to lay down a broad proposition that in every case which is decided ex parte on account of counsel's carelessness, the Court must exercise its inherent powers under sec. 561a Cr. P. C. In the last case of Chandrika vs. Rex (3), the appeal was heard by the Court on a date earlier than the one fixed for hearing and since the appellant had opportunity of being heard, the application under sec. 561-A was allowed because it was considered that there was an abuse of the process of the court. In the present case, the revision application was heard on the date which was fixed for its hearing once in the fortnightly cause-list and next in the daily cause-list. This case, therefore, does not help the applicants. To my mind it would be putting a premium on carelessness whether it be that of the petitioners of the of their counsel, if the extra-ordinary powers given to the Court u/s 561-A Cr. P. C. are utilised for condoning their negligence. Sec. 561-A Jays down that nothing in this Code shall be deemed to limit or affect the inherent power of the High Court (i) to make such orders as may be necessary to give effect to any order under this Code, or (ii) to prevent abuse of the process of any Court, or (iii) otherwise to secure the ends of justice. In the present case, there is no question of making any orders for giving effect to a previous order of this court, nor is there any question of preventing an abuse of the process of any court. The applicants advocate wants to bring this case under the last clause, i. e. , he wants re-hearing for securing the ends of justice. It has not, however, been pointed out in the application as to what injustice has been caused to the petitioners owing to the absence of their counsel. It may be mentioned that the petitioners were unsuccessful in the first appeal. In the present revision petition also the record of the court below was perused and the revision application was decided after giving due consideration to the applicants' objections. Under the circumstances, there is no good ground for allowing the present application. It is, therefore, dismissed. . ;