V.S.DAVE, J. - (1.) IT is painful to decide an application for recalling the judgment delivered by a senior brother Judge and for that the proper course would have been to refer the matter to the Larger Bench and I expressed the same to the learned Counsel for the parties when the matter came up for hearing, but as the case is largely covered by the various decisions of their Lordships of the Supreme Court and a Full Bench decision of this court I have been pursuaded to decide it sitting in Single Bench. The shprt question involved in this case is as to whether notice to amicus curiae appointed by the court in the court during the course of hearing is a Sufficient notice to the accused and whether such an appointment is an idle formality, i.e. to say whether without giving notice to the accused either by the court or by the learned Counsel who has appeared as amicus curiae and without affording opportunity to the learned Counsel for constituting file and arguing the case, the same should be decided much less the sentence should be enhanced?
(2.) THIS case has a chequered history. The accused petitioner, Chhaja, filed an appeal through Shri I.C. Maloo and Shri R K. Thanvi Advocates on May 24, 1976 at Jodhpur against his conviction and sentence passed by Addl. Sessions Judge No. 2, Alwar. He was convicted for offence under Section 326 IPC and sentenced to two years' rigorous imprisonment and a fine of Rs. 500/ -. In deafult of payment of fine he was further to undergo three months' rigorous imprisonment. This appeal was admitted on May 25, 1976 and order regarding suspension of sentence was also passed. At that time there was unified High Court in Rajasthan at Jodhpur and there was no Bench at Jaipur. The accused was directed to appear personally on July 12, 1976 but on that day he did not appear and therefore, Hon'ble DP. Gupta, J., as he then was, started proceedings Under/Section 446 Cr. PC. The accused in fact has sent a telegram to his counsel that his father expired and, therefore, he was unable to attend the date and asked for postponement, but this telegram was delivered one day late. Learned Counsel therefore, filed an application on the next day and, therefore, the learned Judge directed the proceedings to be dropped vide order, dated November 10, 1976 on which date the accused was also present in the court as is evident from the order sheet of that day. The learned Judge ordered that the appeal by listed for hearing in DUE COURSE.On 31 -1 -77 a Bench of the High Court was established under the orders of the President of India at Jaipur and the cases arising from the Eastern Districts of Rajasthan mentioned in the notification were transferred for hearing at Jaipur Bench. At that time certain lawyers shifted their offices to Jaipur, while most of them remained at Jodhpur and the learned Counsel for the accused petitioner Shri Maloo and Shri Thanvi stayed back at Jodhpur. Notice of transfer of the case from Jodhpur to Jaipur Bench was, it appears, not served upon the accused -petitioner, since there is neither mention in the order -sheet nor copy of the notice is in the file. The appeal was listed before me on May 24, 1985, but it did not reach. Similarly it was listed again on November 8, 1985, before my brother P.C. Jain, J. where also it could not reach and for the first time it came up for hearing before my brother Hon'ble CM. Lodha, J. as he then was, on January 2, 1986. On this date since no one appeared for the accused he appointed Shri Sajjan Singh an amicus curiae and heard him on the same day. During the course of hearing it appears that learned Public Prosecutor orally asked for enhancing the sentence as according to him the sentence passed in the circumstance was grossly inadequate. Thereafter learned Judge observed as under: Since there is no appeal from State, it would be in interest of justice first to give notice to accused's advocate amicus curiae, why the sentence should not be enhanced, if the appeal is dismissed. Mr. Sajjan Singh is allowed time to prepare the case against the notice for enchancement of sentence. Put up on 6 -1 -1986 as prayed. On 6 -1 -1986 the learned Judge dismissed the appeal filed by the accused -appellant and excercising the powers suo moto revised the sentence awarded by the trial court, and it was enhanced, from two years to seven year's rigorous imprisonment and fine was increased from Rs 500/ -to Rs. 1,000/ -. The Hon'ble Lodha, J. after enhancing the sentence passed several remarks about the theory of punishment. It was also observed at, t,he end of the order that the certified copy of this judgment and order -sheet should only be given to the appellant or his counsel or his representative when a certificate from the authority concened is produced that the appellant has surrendered in jail. On 16 -8 -1986 the accused -petitioner filed an application in, this court under Section 482, Cr.PC praying for re -calling of the judgment, dated 6 -1 -1986 and re -hearing the case. The case was registered on defective side and was placed before Hon'ble Lodha, J. who observed that the case should not have been listed before a certificate is given to the effect that the accused is in jail. He also called for the explanation of the clerk concerned. It took quite some time for getting information from jail about surrender of the accused and when the case came up again before him he directed the petitioner to be summoned from jail. The case thereafter was listed before him for several times but was adjourned from time to time till Hon'ble Lodha, J. was elevated as Chief Justice and thereafter orders were passed on March 11, 1988 that the matter be listed before the regular Bench and it came up for hearing before me on April 4, 1988. On this day since the lawyers were on strike none appeared on behalf of the accused petitioner and I recorded the following order: In this miscellaneous petition the petitioner has submitted that the appeal was filed by him at Jodhpur and notice of its being transferred to Jaipur Bench was not given to him. He has further sumbitted that this court appointed amicus curiae and enhanced the sentence. The amicus curiae had neither sought instructions from him nor had the material to argue the case. Thus, his grievance is that sentence has been enhanced without due and proper notice. Since the appeal is very old, it would be in the interest of justice if this miscellaneous petition is decided at admission stage. Let notices be issued to the Public Prosecutor returnable within three weeks. The accused was in jail since June, 1987 and he had made prayer for recalling of the judgment so I thought it proper to direct his release on bail, it is there after that now this case has come up for hearing before me.
(3.) I have beard the learned Counsel for the parties.;