ORDER
R.B. Misra, J.
1. Heard Mr. S. Dutta, learned Counsel for the applicant/appellant/petitioner and Mr. A. Ghosh, learned State counsel for the respondent.
2. The present criminal misc. case has been preferred under Section 482 of the Code of Criminal Procedure (for short “Cr.P.C.”) to recall/review the judgment dated 16.5.2005 passed by this Court in Criminal Revision Petition No. 18 of 1998, whereby Criminal Revision Petition was dismissed in absence of learned Counsel for the applicant/appellant, namely, Sri Hazi Mahamud Ali. The aforesaid Criminal Revision Petition was preferred Under Section 397 read with Section 409 of the Cr.P.C. against the judgment dated 17.3.1998 passed by the learned Sessions Judge, North Tripura, Kailashahar in Criminal Appeal No. 10(2) 1997 allowing the appeal partly by setting aside conviction and sentence dated 13.5.1997 under Section 498-A of the Indian Penal Code (for short “the IPC”) passed by the learned Judicial Magistrate, 1st Class, Kailashahar, North Tripura in Case No. G.R. 7 of 1995 whereby the learned Judicial Magistrate, 1st Class, Kailashahar, North Tripura convicted the petitioner/appellant along With one Smti. Harichunnessa (Begum) to suffer rigorous imprisonment for 2 (two) years. However, on appeal learned Sessions Judge convicted the petitioner to suffer regorous imprisonment for 6 (six) months under Section 324 of IPC acquiting other accused Smti. Harichunnessa (Begum).
3. Mr. S. Dutta, learned Counsel for the applicant/appellant has submitted that the impugned order dated 16.5.2005 was passed without the assistance of the accused or without assistance of the learned Counsel for the accused therefore, in view of the provision of Section 401 read with Section 482 of Cr.P.C. the order dated 16.5.2005 passed in Criminal Revision No. 18 of 1998 has to be recalled for the purpose of giving fresh hearing by providing opportunity of hearing and for reconsideration of the Criminal Revision Case No. 18 of 1998. For this purpose Mr. Dutta, has placed reliance on a judgment of Supreme Court In (1) Chakareshwar Nath Jain v. State of Uttar Pradesh when the High Court of Allahabad had adjournment all the cases of a particular advocate for particular period, however, hearing of revision application in which that advocate was appearing was taken in his absence on one day during adjourned period and was dismissed ex parte on merits. The Supreme Court while allowing the criminal appeal, reversed the decision of the Allahabad High Court with a direction to the High Court to hear the revision application In accordance with law, after giving opportunity to the appellant.
4. In reference to the decision of Rajasthan High Court Habu v. State of Rajasthan Mr. Dutta has submitted that the power and scope of recall and review under Section 482 of Cr.P.C. is very wide, moreso, when Section 401(2) of Cr.P.C. provides that no order under Section 482(2) Cr.P.C. shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by counsel in, h/s own defence, In these circumstances to secure ends of justice, the impugned order dated 16.5.2005 passed without hearing the accused or his counsel has to be recalled for the purpose of hearing afresh.
5. Mr. A. Ghosh, learned State counsel for the respondent, on the other hand, has placed reliance on the decisions of Bombay High Court in 1992 Cri LJ 1203 Suresh T. Kilachand v. Sampat Shripat Lambate 1994 Cri LJ 1633 (Supreme Court), Mpti Lal v. State of Madhya Pradesh, Karnataka High Court in 1998 Cri LJ 2484 The State v. Rajashekar Rao Slndya (2001) 1 SCC 169 : 2001 Cri LJ 128 Hari Singh Mann v. Harbhajan Singh Bajwa.
6. In order to analyze the present case it is necessary to refer Sections 362, 40 Land 482 of Cr.P.C. as under:
362. Court not to alter judgment. Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.
401. High Court’s powers of revision (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Sessions by Section 307, and, when the Judges composing the Court of Revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his ow defence.
(3) Nothig in this section shall be deemed to authorize a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code a appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under the Code a appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary In the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly.
482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
403. Opinion of Court to hear parties. Save as otherwise expressly provided by this Code, no party has any right to be heard either personally or by pleader before and Court exercising its powers of revision, but the Court may, if it thinks fit, when exercising such powers, hear any party either personally or by pleader.
7. According to Mr. Dutta, learned Counsel for the applicant/appellant there is a distinction between review of record and power to be exercised under Sections 362 and 482 of Cr.P.C. and in view of the decision of Rajasthan High Court (Full Bench) in Habu AIR 1987 Raj 83 (supra) any exercise of inherent power under Section 482 to secure ends of justice and for furtherance of personal liberty and principle of audialteram partem, the limitation means under Section 362 of Cr.P.C. shall not come in the way and In absence of accused or his counsel found genuine and not for any extraneous reasons. The decision can be recorded for giving fresh hearing to the accused in exercise of power under Section 482 of Cr.P.C. For this purpose learned Counsel for the applicant/appellant has heavily placed reliance on paragraph Nos. 13, 14, 20, 21, 44 and 45 which are given below:
13. Shri S.C. Agarwal submitted that in an application under Section 482, Cr.P.C. this Court has ample powers to recall its judgment as recalling is not a bar under Section 362, Cr.P.C. He submits that the provisions of Section 482, Cr.P.C. are wide enough to meet any eventuality and if the Court is satisfied that injustice has been done to a person it can always recall its judgment in order to secure an ends of justice. It Is submitted that the ban imposed under Section 362, Cr.P.C. is about reviewing or altering the judgment, i.e. interfering with the findings which had been given in the judgment but when it is recalled it means complete abrogation as if there is no judgment at all and, therefore, this Court has to make a distinction between review, alter and re-call. He submits that it is mandatory to give an opportunity of hearing to an accused j person in the. Court and he should not be condemned unheard. He referred to proviso, (b) to Sub-section (1) of Section 384, Cr.P.C. and submitted that no appeal can be dismissed except after giving the appellant a reasonable opportunity of being heard and this means that the presence of the appellant or his counsel Is a condition precedent. He submits that if Section 362, Cr.P.C. is given a narrow connotation, then it will make the provisions of Section 384, Cr.P.C. redundant. He referred to a decision reported in T. Somu Naidu AIR 1924 Mad 640 : (1925) 26 Cri LJ 370 where the Court re-called the earlier judgment and directed the case to be heard afresh. This case came up on a reference made by learned single Judge and a similar question was raised as in the instant case. Their Lordships after considering the various authorities held as under:
that in exceptional circumstances the judgment has to be re-called since it is either void ab initio or is otherwise null and void. It was held that sound Judicial view is that reasonable opportunity for the accused to be heard is essential condition precedent to the exercise of Jurisdiction under Section 439, Cr.P.C. when the Court is considering the question of enhancing the punishment inflicted on him. The court further held that where the condition laid down by law as precedent and requisite to the bearing of a case are not observed the case has to be reheard and it does not amount to review or revising the order.
14. Reference was then made to Muhammad Sadiq v. The Crown AIR 1925 Lah 355 : (1925) 24 Cri LJ 1169 where the scope of Section 561 (A) of the then Cr.P.C. which correspond to Section 482, Cr.P.C. was considered. It was held that “where an appeal has been dismissed without the appellant or his pleader being given a reasonable opportunity of being heard in support of the same, the order refusing the appeal must be held to have been passed without Jurisdiction and the Court has inherent power to make an order that the appeal should be re-heard 3 after giving the opportunity of being heard in support of the same.” In this case their Lordships considered the various cases before coming to the conclusion that the Court has a power to re-hearing the case. Reference was then made to Emperor v. Shivadatt (1938) 111 Ind Cas 573 : AIR 1928 Oudh 402 : (1928) 29 Cri lJ 893 whether it has held as under:
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 Section 561-A of the Cr.P.C. 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 finds of justice.
20. Mr. Ravi Kasliwal referred to Deepak Thanwardas Balwani v. State of Maharashtra (1984) 1 Crimes 736 : 1985 Cri UJ 23 wherein it was held as under:
In its inherent powers as provided under Section 482, Cr.P.C. 1973, the High Court can review or revise its judgment if such a judgment is pronounced without giving an opportunity of being heard to a party who is entitled to a hearing and that party is not at fault. For the mistake of the Court, a party cannot suffer.” He also referred to Raj Narain v. The State , which is again a Full Bench decision and where the High Court’s power to revoke, review, re-call or alter its own earlier decision in a criminal revision and rehear the same came up for consideration. The question referred to the Full Bench was whether this Court has power to revoke, review, re-call or alter its earlier decision in a criminal revision and re-hear the same and if so in what circumstances. Their Lordships answered the question as under:
1. that this Court has power to revoke, review, re-call or alter its own earlier decision in a criminal revision and re-hear the same.
2. that this can be done only in cases falling under one or the other of the three conditions mentioned in Section 561-A, namely,
(i) for the purpose of giving effect to any order passed under the Code of Criminal Procedure.
(ii) for the purpose of preventing abuse of the process of any Court,
(iii) for otherwise securing the ends of justice.
Reference answered accordingly.
In Makkapati Nageswara Sastri v. S.S. Satyanarayan their Lordships held that the view taken by the High Court that in a revision party was not entitled to be heard as of right and though the counsel did not appear due to non-appearance of his name in the cause-list yet decided the revision ex parte. Their Lordships held that the view taken by the High Court is manifestly contrary to audi, alteram partem rule of natural justice which was applicable to the proceedings before the High Court.
21. Mr. A.K. Bhandari submitted that there is a great difference between the word ‘review’ or ‘re-call’. He submitted that what is a bar under Section 352, Cr.P.C. is a review or alteration but not to the re-call. He referred to Chambers Dictionary and submitted that review means a re-consideration, a critical examination, to look back etc. while re-call means to call back, to revoke etc. which means that in one there is an examination of the judgment and then on viewing the same from a different angle it has to be reviewed. While in another it is not only abrading it but to revoke it as a whole as if everything is obliterated from the record. In one earlier judgment remains on record with correction of the errors while in another it completely goes out. Therefore, what is contemplated in Section 482, Cr.P.C. is re-calling the Judgment and not reviewing the same. In other words it is submitted that Section 362, Cr.P.C. bars the review or alteration but not the re-calling. He submits that in Swarth Mahto v. Dharmdeo . Their Lordships were conscious of the phraseology and have used the work ‘re-hearing’ and not ‘reviewing’. It is further submitted that in all other Courts except High Court the presence of an accused on each date of hearing is a condition precedent, while in the High Court it is not so except that according to Section 385, Cr.P.C. when the appellate Court does not dismiss the appeal summarily it has to cause notice of the time and place at which such appeal will be heard to be given to the appellant or his pleader and by the High Court Rules the notice of time and place is given through cause-list. He, therefore, submits that if either the name is wrongly printed or omitted to he printed or the description of the case is erroneous or for any other reason there is defect in the list, it is non-compliance of Section 385, Cr.P.C. and in case the appeal is heard in non-compliance of Section 385, Cr.P.C. then it is not hearing at all and it violates the principles of natural justice as well.
44. Keeping the well known principles of interpretation of statute in our mind we deem it proper to observe that while considering the scope of Section 482 Cr.P.C. we must remember that inherent powers which are always inherent in a Court are if (not) specifically provided by the legislature, all pervasive and comprehensive enough to arm the Court of advancing the cause of justice and to prevent the abuse of the process of the Court. It is a well known dictum that justice has not only to be done but it should also appear to have been done and, therefore, whenever a litigant comes before the Court it is essential that he must go haying full faith in his mind that the Court has done justice with his case. It is true that all cannot go satisfied with the decision of the Court but at least all must have the satisfaction that they have been heard by the Court. The litigant who comes from different corners of the State cannot be expected to be around the Court when his case is called for hearing unless he has a competent and vigilant lawyer who informs him of approximate date of hearing of a case or the litigant himself is vigilant enough to keep in tough with his case, but most of the people who are illiterate and come to the Court have to bank on the information they receive, the treatment they get and the advice which is tendered to them by their counsel. It can also not be expected that each and very litigant will have the lawyers of the same competence which the others can afford, but at the same time it is always expected from the learned Counsel that they would do their best in the best interest of their client. Equally is the responsibility of the Registry in being cautious about notifying the cases properly when they come up for hearing. What we mean to say is that a litigant is always helpless and is at the mercy of others, whoever makes a mistake ultimate sufferer is he. If the case is not properly shown in the daily cause-list i.e. either the number is wrong or the title is not properly given or the name of the counsel representing not shown the case will go unattended and if the lawyer misses the case despite the fact that it is properly shown or is busy elsewhere and is unable to attend the Court again sufferer is the litigant. It is for the Courts to see that the record is properly looked into with the assistance of the counsel before the case is finally decided. At the same time Court must ensure that the absence of the counsel is neither deliberate nor meant to avoid the Bench, nor the litigant or his counsel has tried to over reach the Courts.’ The Courts in such case must be hesitate in proceeding against such persons.
45. Their Lordships of the Supreme Court in a case of Bhagwant Singh v. Commr. Of Police while giving interpretation to Section 173(2)(ii) Cr.P.C. have laid, great emphasis on the right of hearing and held as under:
In a case where the Magistrate to whom a report is forwarded under Sub-section (2) of Section 173 decides hot to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the in formant and provide him an opportunity to be heard at the time of consideration of the report.
What we intend to emphasize is that right of hearing is very important right of which no litigant should be deprived. Thus on the consideration of all the cases cited and on the two cases quoted by learned single Judge, we answer the reference as under:
(i) That the power of re-call is different than the power of altering or reviewing the judgment.
(ii) That powers under Section 482, Cr.P.C. can be and should be exercised by this Court for re-calling the judgment in case the hearing is not given to the accused and the case falls within one of the three conditions laid down under Section 482, Cr.P.C.
Reference answered accordingly.
8. On the other hand, it has been argued on behalf of Mr. A. Ghosh, learned Counsel for the State that though it is not a clerical or arithmetical error occasioned by an accidental slip or omission of the Court which are intended to be corrected in the impugned judgment dated 16.5.2005. Any error in the form of arithmetical or clerical apparent on the face of the record and depending for its discovery on argument or disputation could be corrected in view of the decision of the Supreme Court in Smt. Sooraj Devi v. Pyare Lal. According to Mr. Ghosh, once judgment has been pronounced, High Court has no jurisdiction to entertain application for grant of permission to compound the offence in view of the decision of the Supreme Court in 1990 Supp. SCC 63 Tanveer Aquil v. State of Madhya Pradesh. According to Mr. Ghosh inherent power of the Court under Section 482; cannot be exercised for doing that which is specially prohibited by the Code, such as, under Section 362 in view of decision of Supreme Court Smti. Sooraj Devi (supra). According to Mr. Ghosh in view of the clear provisions of Section 362, the High Court has no jurisdiction under Section 482, Cr.P.C. to alter the earlier judgment when it has been signed in view of the decision of Supreme Court in Moti Lal 1994 Cri LJ 1633 (supra) and in view of Hari Singh Mann 2001 Cri LJ 128 (supra). Section 362 prohibits the Court after it has signed the judgment or final order disposing, of a case from altering or reviewing the said judgment or order except to correct a clerical or arithmetical error. This prohibition is complete and no Criminal Court can review its own judgment or order after it is signed in view of the decision of Supreme Court in State v. M.M. Manikantan Nair , however, the bar of Section 362, Cr.P.C. does not debar the Supreme Court in considering the legality of the order in R. Sarala v. T.S. Velu .
9. According to Mr. Ghosh, learned State counsel for the respondent in Rajashekar Rao Sindya 1998 Cri LJ 2484 (supra) Karnataka High Court had an occasion to consider the case of High Court of Rajasthan (Full Bench) passed in Habu AIR 1987 Raj 83 (supra) and it was especially held that Court cannot recall the earlier order just because, parties or their counsel were not heard, moreso, when parties had alternative remedy of approaching Apex Court. When the case has been considered on merits with reference to materials on record, just because parties or their counsel were not heard, parties would not be prejudiced.
10. In Moti Lal 1994 Cri LJ 1633 (supra) the appellant charged under Section 304, Part I for inflicting grievous hurt resulting in death of victim was convicted whereas other co-accused were acquitted on the ground of inflicting such injury on the body of the deceased as which was not found to be sufficient in ordinary course to cause death and conviction of accused under Section 304, Part I was altered to one under Section 326 of IPC therefore, the Supreme Court had observed that High Court had no jurisdiction under Section 482 to alter its earlier judgment in view of Section 362 of Cr.P.C.
11. In Hart Singh Mann 2001 Cri LJ 128 (supra) the Supreme Court has held that High Court has no jurisdiction to alter or review its own judgment or order once judgment has been pronounced by the High Court either In exercise of its appellate or revisional or original criminal jurisdiction except in correcting any clerical or arithmetical error. Once a matter is finally disposed of, the Court, in the absence of a specific statutory provision, the Court becomes functus officio in respect of that matter and any alteration, recall or review in such earlier judgment shall be abuse of process of law/ Court. For convenience para 9 of Hart Singh Mann 2001 Cri LJ 128 (supra) is quoted below:
There is no provision in the Code of Criminal Procedure authorizing the High Court to review its judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction. Such a power cannot be exercised with the aid or under the cloak of Section 482 of the Code. This Court in the State of Orissa v. Ram Chander Agarwala , held (SCC p. 315 para 20)
20. Before concluding we will very briefly refer to cases of this Court cited by counsel on both sides. Talab Haji Hussain relates to the power of the High Court to cancel bail. The High Court took the view that under Section 561 -A of the Code, it had inherent power to cancel the bail, and finding that on the material produced before the Court it would not be safe to permit the appellant to be at large cancelled the bail, distinguishing the decision in Lal Jairam Das v. King-Emperor AIR 1945 PC 94 : (1945) 46 Cri LJ 662 and stated that the Privy Council was not called upon to consider the question about the inherent power of the High Court to cancel bail under Section 561A. In Sankatha Singh v. State of U.P. this Court held that Section 369 read with Section 424 of the Code of Criminal Procedure specifically prohibits the altering or reviewing of its order by a Court. The accused applied before a succeeding Sessions Judge for re-hearing of an appeal. The learned Judge was of the view that the appellate Court had no power to review or restore an appeal which has been disposed of. The Supreme Court agreed with the view that the appellate Court had no power to review or restore an appeal. This Court, expressing its opinion that the Sessions Court had no power to review or restore an appeal observed that a judgment, which does not comply with the requirements of Section 367 of the Code, may be liable to be set aside by a superior Court but will not give the appellate Court any power to set it aside itself and re-hear the appeal observing that Section 369 read with Section 424 of the Code makes it clear that the appellate Court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error. Reliance was placed on a decision of this Court in Supdt. and Remembrancer of Legal Affairs, W.B. v. Mohan Singh , by Mr. Patel, learned Counsel for the respondent wherein it was held that rejection of a prior application for quashing is no bar for the High Court entertaining a subsequent application as quashing does not amount to review or revision. This decision instead of supporting the respondent clearly lays down, following Chopra case U.J.S. Chopra v. State of Bombay that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Criminal Procedure Code which would enable the High Court to review the same or to exercise revisional jurisdiction. This Court entertained the application for quashing the proceedings on the ground that a subsequent application to quash would not amount to review or revise an order made by the Court. The decision clearly lays down that a judgment of the High Court on appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal Procedure Code. The provisions of Section 561-A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code.
12. The application for recalling the order passed on merits exercising jurisdiction of the revisional powers by this Court, amounts to review of the order prohibited under Section 362 of the Code of Criminal Procedure. In exercise of its revisional jurisdiction as contemplated under Sections 401 & 403 of the Cr.P.C. The Court may decide the cases even in the absence of the petitioner or his counsel while deciding such cases, this Court would give regard to the facts and circumstances placed before the Court below, the grounds of revision and the law that is applicable on such circumstances, it virtually amounts to canceling or abrogating the well reasoned order passed by this Court after giving due regard to facts and circumstances. There is no statutory provision for recalling the order passed on merits by the same Court unless the said Order is annulled by a Superior Court. This obviously means there should be a finality for judicial Orders and this is so reflected under Section 403 of the Code. In view of the specific prohibition contained in Section 362, Cr.P.C. on the principles of natural justice also it is not possible for the Court either to recall the order or give re-hearing to the parties. Having regard to the provisions of Section 403, Cr.P.C. a party having no such right of being heard either personally or by a pleader in revision, It cannot be said the High Court, having called for the records, had committed any error by proceeding to the judgment in the absence of the applicant or his counsel.
13. I have considered the submissions of learned Counsel for the parties. I find that though the learned Counsel for the applicant/appellant was not present on 16.5.2005, the Impugned judgment was passed on merits after hearing the learned State counsel and after perusing and considering the materials on record. In view of the provisions of Section 362 of Cr.P.C. the said order cannot be recalled or reviewed in exercise of the power conferred under Section 482 of Cr.P.C.
14. In view of the observations made above, present Criminal Misc. Case is dismissed.