TMI Blog1986 (12) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... se decided on merits, can be re-called by the Court in its inherent powers under Section 482, Cr.P.C. 2. The petitioner, Habu, had filed a revision petition in this Court in the year 1978 challenging his conviction and sentence. This revision-petition was admitted on Oct. 25, 1978, and was ordered to be heard in due course on May 26, 1979. Thereafter it came up for hearing on Jan. 11, 1985 before Hon'ble Sharma, J. The accused petitioner who was on bail neither appeared in person npr his counsel was present and Hon'ble Sharma, J. after hearing the learned Public Prosecutor dismissed the revision-petition on merits. The petitioner thereafter moved an application on Mar. 14, 1986 under Section 482, CnP.C. wherein it was prayed by him that he had engaged a lawyer Shri Manak Chand Jain who did not inform him of the date of hearing and as such he himself also did not appear and made arguments on his behalf. It was a surprise to him when a warrant of arrest came and he was arrested, then he learnt that his revision petition has been dismissed. He wrote a letter to his counsel but failed to get any reply; hence he engaged another lawyer to find out the position and moved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Pradesh, AIR 1981 SC 1698 no jurisdiction vested in him to refer the matter to a larger Bench. It is further submitted that the reference is wholly uncalled for as he has arrived at further finding that the case of Dhanna v. State of Rajasthan, AIR 1963 Raj 104, is more or less similar to the present case. 5. His another objection about maintainability of the reference is that from the language of the question framed by learned Judge is such which does not include the absence of both, i.e., the appellant and his counsel, as the learned Judge has used the word 'or' in the question instead of 'and', therefore, the learned Judge contemplates a position where absence is of the appellant or his counsel which means absence of either of them or presence of only one of them and such a situation having not been the subject-matter of decision in Dhanna's or Jacob's case, the question framed cannot be answered in vacuum. He, therefore, submitted that because of these preliminary objections, point, referred to, need not be answered. 6. We have given our thoughtful consideration to the preliminary objections. In the instant case the accused who filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se listed earlier, and why it was not brought to the knowledge either of the Chief Justice or before us when we fixed the date and told the Deputy Registrar to list this case on July 21, 1986, that the accused is in jail. We expect from the registry that the record must disclose whether the accused is in jail or not, when it is placed before the Court. It must appear from the title cover. Thus in charge of stamp reporting must ensure that in the cause title as well as on the file cover it must be shown as to what is the position of the accused at the time when the case is presented. Had the Registry in this case taken proper care to see that there is mention that the accused is in jail or had the learned counsel brought the fact to the notice of Hon'ble Sharma, J., possibly the accused would have been benefited of being on interim bail during the pendency. The draft of the entire miscellaneous application only shows one line in para 7, that when the accused has been arrested, then he could know that his case has been dismissed. Besides this there is not a word in the entire record of the case as to since what date the accused is in jail, in which jail and on what date he had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court Rules which reads as under : Rule 59. Reference of a case to a larger Bench-- The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question or questions of law formulated by a Bench hearing a case. In the latter even the decision of such Bench on the questions so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question or questions and dispose of the case after deciding the remaining questions, if any, arising therein. 8. On a plain reading of the aforesaid rule it is obvious that this bench is called upon to determine only the question formulated by Hon'ble S. Sharma, J. We do not find any other rule in the High Court rules which gives power to Hon'ble the Chief Justice to constitute a Bench of two or more Judges for deciding a case or any question referred to. The argument of the learned counsel is that reference could not be made to this Bench as the learned Judge himself has agreed with one of the views taken by this Court and once he was in agreement the reference was incompetent. We are unable to accept this contention because despite the fact th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dently the Bench has to apply its mind to all the controversies, arising in the case including those earlier decided. The Court felt inclined to adopt the narrow view of the word 'case' in the rule and to hold that a larger Bench should decide the case as a whole including the controversy already decided by the single Judges. Reading' the rule coupled with the aforementioned two cases we are of the opinion that nothing prevents us from answering the question referred to us by the learned single Judge despite the facts that he has already agreed with one of the views. 10. The another objection is that there is no controversy between Shaukin Singh's case (AIR 1981 SC 1698) and Dhanna's case (AIR 1963 Raj 104) and, therefore, the reference is incompetent. We will consider this argument while considering the merits of the reference as the question whether there is any controversy or there is difference of opinion can only be answered after we go through both the cases and in light of the arguments advanced before us by various learned counsel. Regarding another objection about the maintainability of the reference for using the word 'o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 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 oppor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed only on very narrow grounds. Hence a judgment which has been orally dictated in open Court can be completely changed before it is signed and sealed provided notice is given to all parties concerned and they are heard before the change is made . In our opinion this judgment has no bearing on the facts of this case as the point involved therein was absolutely different. The Court was only considering whether a judgment which has been delivered in open Court but not signed can be changed. Hence as mentioned above this case is neither applicable on facts nor on law. Reference was then made to Swarth Mahto v. Dharmdeo Narain Singh, AIR 1972 SC 1300 which is a case of improper publication of the cause-list where neither the name of the respondent nor his advocates were properly mentioned. In this case in Patna High Court when an appeal against acquittal came up for hearing after 2 1/2 years after issuance of notice neither the name of the accused-respondent nor his advocate appeared in the cause-list and the State appeal was allowed ex parte. Their Lordships of the Supreme Court held that when the names of the accused-respondent and his advocate did not appear in the causeli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uct the appeal. Their Lordships will humbly advise His Majesty accordingly . 18. Reference then was made to Ganesharam v. State of Raj. where at the time of disposal of the main case provisions of the Probation of Offenders Act were not brought to the notice of the Court and the same were brought to the notice by way of an application under Section 561-A Cr.P.C. His Lordship Hon'bte Tyagi held as under : S. 561-A Cr.P.C. envisages three circumstances in which the Court can exercise that power, namely, when it is necessary (1) for securing the ends of justice, (2) for preventing abuse of the process of Court, and (3) to give effect to any order under this Code. It is now well settled that this section doesn't confer any power on the High Court. It only saves such inherent power which the Court possessed before the Cr.P.C. was enacted. If such a power is so included it can be exercised for the purposes mentioned in the Section and it would be a matter for determination by the Court in each individual case whether the circumstance obtaining in that case makes out that purpose and makes inherent on the Court to exercise such a power to achieve the ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling 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, AIR 1981 SC 1156 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 362, Cr.P.C. is a review or alteration but not the re-call. He referred to Chambers Dictionary and submitted that review means a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are specifically prohibited by the Court. 23. Mr. Bapna submitted that Section 482, Cr.P.C. does not confer any new jurisdiction on the High Court. It is inherent on the Court and whenever this Court feels that injustice has been done it has to invoke that jurisdiction which is inherent in every Court. He places' reliance on Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiraial, AIR 1962 SC 527 wherein their Lordships of the Supreme Court in reference to Section 151, C.P.C. held that the inherent power has not been conferred upon the Court. It is a power inherent in the Court by virtue of its duty to do justice between the parties before it. It is then submitted that Section 482, Cr.P.C. only makes this power inherent. Further it is always the duty of the Court to do justice between the parties and in doing so nothing can come as an impediment. It is submitted that when there is an anxiety to do justice Section 362, Cr.P.C. would not operate as a bar because that only prohibits altering or reviewing judgments, neither the correction has to be done nor the judgment has to be dressed. Section 362, Cr.P.C. will only be a bar when there will be some fault finding in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts that up to 1978 this view was generally acceptable only in the property matters and an individual's liberty was not put at the same pedestal but that was the capitalistic way of looking at things. Now after 1978 the Courts have given new dimensions to Article 21 of the Constitution and right from Hussainara, Khatoon's case (AIR 1979 SC 1360) till date their Lordships of the Supreme Court by series of decisions have opened new vistas and it is in the same sequence that this Court must take a view that Section 482, Cr.P.C. is wide enough to give effect to the spirit of principles of natural justice. It is submitted that there is no inherent prohibition and even if there is one in Section 362, Cr.P.C. the same must be held to be violative to the principles of natural justice and Article 41 of the Constitution. It is submitted that this Court should not take a view that right of hearing of an appeal is completely taken away. In support of his aforesaid contentions he placed reliance on the following observations in Central Inland Water Transport Corporation Ltd. v. Brojo Nath Ganguly (and another Civil Appeal), (1986) 3 SCC 156 : (AIR 1986 SC 1571) wherein it has been held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d parties from the beginning any order made without hearing the party affected if the injury is to a constitutionally guaranteed right. In other cases, the order in violation of natural justice is void in the limited sense of being liable to be avoided by Court with retroactive force. In the present case, a fundamental right of the petitioner has been encroached upon by the police commissioner without due hearing. So the Court quashed it not killed it then but performed the formal obsequies of the order which had died at birth. The legal result is that the accused was never guilty of flouting an order which never legally existed. Reliance has been placed on the following observations of their Lordships in Suk Das v. Union Territory of Arunachal Pradesh, AIR 1986 SC 991. It is submitted that this judgment is a landmark and extends the horizons of Article 21 of the Constitution of India and has an important bearing in deciding this reference. Then reference has been made to A. K. Roy v. Union of India, AIR 1982 SC 710 wherein it has been held as under : If the detaining authority or the Government takes the aid of a legal practitioner or a legal adviser b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the Magistrate seeks to review the matter. The power of review lacks sanction of any of the provisions of Criminal P.C. Therefore, I am unable to agree with the decision of the Patna High Court. 25. Mr. Ajeet Bhandari placed reliance on Rafiq v. Munshilal, AIR 1981 SC 1400 wherein it has been held as under : Where an appeal filed by the appellant was disposed of in absence of his counsel, so also his application for recall of order of dismissal was rejected by the High Court, the Supreme Court in appeal set aside both the orders of dismissal on ground that a party who as per the present adversary legal system, has selected his advocate, briefed him and paid his fee can remain supremely confident that his lawyer will look after his interest and such a innocent party who has done everything in his power and expected of him, should not suffer for the inaction, deliberate omission or misdemeanour of his counsel . It is submitted that though this was the civil case but the principle laid down therein shall also be applicable in criminal cases. 26. Mr. A. K. Gupta submits that Section 304, Cr. P.C. and Article 39A of the Constitution where right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oupled with that of many other cases, like that of Sunil Batra v. Delhi Administration : 1980 Cri LJ 1099 : (AIR 1980 SC 1579), and yet another case of Hussainara Khatoon reported in AIR 1979 SC 1360, we have no hesitation in holding that detention of a person even by due process of law has to be reasonable, fair and just and if it is not so, it will amount to violation of Article 21 of the Constitution of India. Reasonable expeditious trial is warranted by the provisions of Cr. P.C. and in case this is not done and an approver is detained for a period which is longer than what can be considered to be reasonable in the circumstances of each case, the Court has always power to declare his detention either illegal or enlarge him to bail while exercising its inherent powers. Section 482, Cr. P.C. gives wide power to this Court in three circumstances. Firstly, where the jurisdiction is invoked to give effect to an order of the Court. Secondly if there is an abuse of the process of the Court and thirdly in 'order to. secure the ends of justice. There may be occasions where a case of approver may fall within latter two categories. For example in a case where there are large number of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in case there are circumstances to suggest that his detention had been so much prolonged, which would otherwise outlive the period of sentence, if convicted his detention can be declared to be illegal, as violative of Article 21 of the Constitution. Relying on Ranchod Mathur Wasawa v. State of Gujarat, (1974) 3 SCC 581: (AIR 1974 SC 1143) it is submitted that adequate opportunity and facility should be provided to the counsel for an accused to prepare the case. He relied on the following passage of the judgment : Indigence should never be a ground for denying fair trial or equal justice. Therefore, particular attention should be paid to appoint competent advocates, equal to handling the complex cases -- not patronising gestures to raw entrants to the Bar. Sufficient time and complete papers should also be made available, so that the Advocate chosen may serve the cause of justice with all the ability at his command. In all these cases there should be a sensitive approach made by the Court to see that the accused feels confident that his counsel chosen by the Court has had adequate time and material to defend him properly . Reliance was placed on a Full B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision would be a nullity because in law the order of the trial Court will be deemed to be non-existent and it would necessarily follow that there was no order which the appellate Court or the revisional Court would confirm or set aside. Consequently, it shall be open to the appellate Court or the revisional Court, as the case may be, to proceed to rehear the case as if the order already passed by it did not exist, Section 369, Cr. P.C. would not stand in its way . Reliance has also been placed on Deepak Thanwardas Balwani v. State of Maharashtra 1985 Cri LJ 23 (Bom) wherein it has been held as under : In its inherent powers as provided in Section 482, 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 . 28. Mr. Dalip Singh laid emphasis on the right recognised for providing in engaging a lawyer and hearing them. He relied on the observations of their Lordships of the Supreme Court in State of Madhya Pradesh v. Shobharam, AIR 1966 SC 1910 wherein it has been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure ends of justice -- Fact that a similar application for quashing the proceedings on a former occasion was rejected by the High Court on the ground that questions involved were purely questions of fact which were for the Court of fact to decide, is no bar to the quashing of the proceedings at the later stage -- Such quashing will not amount to revision or review of the High Court's earlier order --Order under Section 561-A should be passed in view of the circumstances existing at the time when the order is passed. 31. Mr. M.I. Khan Additional Advocate General submitted that this question is of much wider importance and should be referred to a still larger Bench. He submits that one of us has already taken view in Noortaki's case { 1986 Cri LJ 1488) (Raj) (supra), that even when there is specific prohibition under same provision in exceptional cases inherent powers of the Court can be invoked, he submits that Noortaki's case requires reconsideration and it has to be considered whether scope of Article 21 of the Constitution can be extended to that extent. He submits that according to Article 21 of the Constitution there are only two riders that no person shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... binding nature on the petitioner. He also relied on S. Kuppuswami Rao v. The King AIR 1949 FCI to substantiate that the term 'judgment' indicates the judicial decision given on the merits of the dispute before the Court and in criminal case the expression 'judgment' or 'final order' cannot cover a preliminary or interlocutory order made on a preliminary objection. On the strength of this case it is submitted that if the judgment is final order then there is a bar for reviewing or altering the same. Mr. Khan also submitted that when a reference has been made to this Bench it should only answer the question referred to and the scope is limited. He refers to Eknath Shankarrao Mukkawar v. State of Maharashtra and submits that the reference made is competent. 32. Mr. Mohammad Rafiq submitted that power to re-call must be derived only from some specific provisions in the Code and there being none the Code cannot enlarge the scope which otherwise has been restricted by the negative provisions of Section 362 Cr. P.C. He submitted that the inherent power regarding review or alteration of the judgment in Section 482 Cr. P.C. has been deleted by virtue of Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : (Interpreation) involves for more than picking out dictionary definitions of words or expressions used. Consideration of the context saying that a verbal expression is plain or unambiguous, we mean little more than that we are convinced that virtually anyone competent to understand it, and desiring fairly and impartially to ascertain its signification, would attribute to the expression in its context a meaning such as the one we derive, rather than any other; and would consider any different meaning, by comparison, strained, or farfetched, or unusual, or unlikely. He also referred to Addl. District Magistrate, Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207 and submitted that while interpreting the provisions and considering the observations of a High Judicial Authority like the Supreme Court greatest possible care must be taken to relate the observations of a Judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him, unless he makes it clear that he intended his remarks : to have a wider ambit. His Lordship Hon'ble Mr. Justice Bhagwati in the aforesaid cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment passed by them disposing the criminal appeals. He also relied on Chandrabali v. State (All) wherein also it was held that Section 482 Cr. P.C. is not applicable in which it has been held as under : We may also point out that in the Full Bench case of Raj Narain ( AIR 1959 All 315) (supra) it was observed in the majority judgment that Section 561-A, did not authorise this Court to rehear a case where the applicant or appellant was not heard due to some fault of his or his counsel Thus the applicant cannot get any assistance even from the majority judgment in Raj Narain's case (supra) which on this point has not been overruled by their Lordships of the Supreme Court. Thus the applicant in the case on hand will not be entitled to claim rehearing even if we were to hold that the applicant could invoke inherent jurisdiction of this Court reserved under Section 482 Cr. P.C. . He then relied on Har Bilas v. Ram Niwas Bansal (All). The Court held that Section 362 Cr. P.C. is a bar. But in this case we may observe that the name of the counsel was printed in the cause-list and there was no adjournment slip also nor any mention was made and it was an applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the language of the Act, there is little difficulty in giving effect to it. But where such intent is covert and couched in language which is imperfect, imprecise and deficient or is ambiguous or enigmatic and external aids to interpretation are few, scant and indeterminate, the Court may, despite application of all its experience, ingenuity and ratiocination, find itself in a position no better than that of a person solving a cross word puzzle with a few given hints and hunches. In such a situation a mere reference to the High Court of a question of opinion may not afford an adequate solution. Only legislative amendment may furnish an efficacious and speedy remedy. He also referred Rule 64 of the Rajasthan High Court Rules and said that for the purpose of review there are specific rules which have to be observed. 33. Mr. S. P. Tyagi submitted that once the judgment is given and signed it has become final for the Court which has delivered and there is no provision of law which empowers the Court to alter or change the same by way of review, recall, reconsideration or rehearing. In other words he submits that the Court is functus officio and whatever may be th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Sankatha Singh's case (AIR 1962 SC 1208) (supra). Their Lordships have held that the appellate Court had no power to review or restore an appeal which has been disposed of under Sections 424 and 369 Cr. P.C. (old). Similar was the view taken in State of Orissa v. Ram Chandra, (AIR 1979 SC 87) (supra). Sankatha Singh's case has been referred to in Sooraj Devi's case (AIR 1981 SC 736) (supra) wherein also their Lordships have held that inherent powers cannot be invoked when there is a complete bar. Scope of Section 482 Cr. P.C. was then considered by their Lordships in Manohar Nathu Sao Samarth v. Marot Rao, (AIR 1979 SC 1084) (supra). Thus on one side as mentioned above the principles which have been laid down by their Lordships of the Supreme Court can be summarised as under :-- 1. That the powers to deal with the case must flow from the statute, 2. That the powers given under Section 362 Cr. P.C. (S. 369 Cr. P.C. old) given to the Court for reviewing or altering is limited only for correcting an arithmetical or clerical error and specifically prohibits Courts from touching the judgment by taking away the powers altering or reviewing the judgment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice Lodha while deciding C. Jacobs case has taken note of all these factors before he directed re-hearing of the appeals. He has in extent discussed the judgment of the Supreme Court particularly in Sankatha Singh (AIR 1962 SC 1208) and Swarth Mathew's cases (AIR 1972 SC 1300) (supra) and had then arrived at a conclusion. He has also dealt with Dhanna's case (AIR 1963 Raj 104) (supra) and in fact we do not find any anomaly in decisions in Dhanna's and C. Jacobs 1986 Raj LR 506 cases which would have otherwise called for this reference. Hon'ble Mr. Justice Bhargava C. B. in Dhanna's case has discussed various authorities which have been cited before us also and then has categorically held the inherent powers under Section 561-A should be exercised very sparingly and only when the facts of the case justify the tests laid down in the section itself. They do not authorise the Court to re-direct a case where the appellants or his counsel was not heard on account of their own fault. I am, therefore, not satisfied that the absence of the learned counsel at the time the appeal was called for hearing was due to insufficient cause and the ends of justice require that a r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the accused an appeal cannot stand. Their Lordships had gone to the extent of holding that even when an adjournment had been sought and refused the accused has to be re-heard because right of hearing cannot be taken away. Their Lordships of the Supreme Court have also advanced this very principle where it was held in couple of cases that if a lawyer does not appear it behoves the Court to appoint an amicus curiae. The same view has been taken in other cases also which have been referred to by the learned counsel above and we are firmly of the opinion that right of hearing cannot be taken away and the sound judicial view would be that reasonable opportunity of being heard must be provided to the accused. Thus, once an appeal or revision is admitted for hearing it should not normally be decided ex parte and if it has been decided ex parte and valid reasons have been shown that there had been failure of justice, inherent powers of this Court should be exercised. This of course, has not to be meant for giving long rope to those persons who either intend to delay the course of justice or to avoid the case from being heard by a particular Bench. Mr. M. I. Khan has cited a passage from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of a lawyer that the Constitution-makers were not satisfied with the rights created by the successive Codes of Criminal Procedure. The Constitution-makers introduced it in the Fundamental Rights chapter so that no tyrannical regime could curtail or destroy it. Article 22 declares that no accused shall be denied the right to consult and to be defended by a legal practitioner of his choice. .....The newly added Article 39A mandates that the legal system shall provide free legal aid to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. In another issue of the same magazine Soli Sorabjee an eminent lawyer wrote an Article 'Our Expanding Liberties wherein he wrote asunder :-- At present it is Article 21 which is the fountainhead of the freedom and liberties of the people of India. Yet, it is only ten years ago that the Supreme Court in its disastrous judgment in ADM Jabalpur AIR 1976 SC 1207 held that on account of the suspension of Article 21 during the operation of the proclamation of Emergency the writ of habeas corpus was not available even in the case of an order of detention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 39;s case (AIR 1963 Raj 104) did not consider the aforesaid aspect but st.ill after considering the various cases particularly Keshav Lal v. Gaveria, AIR 1952 Raj 50, Sri Ram v. Emperor AIR 1945 All 106, Chandrika v. Rex, AIR 1949 All 176, Ram Ballabh v. State, Mohan Singh v. Emperor, AIR 1944 Pat 209 and Bhagwandas v. The State AIR 1954 M B 10 and also considering his own judgment in Criminal Revision Petition No. 138/62 coupled with Rules 79 and 80 of the Rajasthan High Court Rules, did come to the conclusion that re-hearing of a revision or an appeal can be ordered if the conditions laid down in Section 561-A Cr. P. C. (S. 482 Cr. P.C now) are fulfilled but gave a caution that this power should be sparingly used and the test laid down in the section must be satisfied. Hon'ble Mr. Justice Lodha in C. Jacob's case 1986 Raj LR 506 has not only given due weight to the observations made by Hon'ble Bhargava, J. but has gone further and laid more emphasis on this right of re-hearing. He has only distinguished the same on facts. Hon'ble Justice Bhargava, J. had, on the merits of the case found that it was not clear from the application that the learned counsel was actual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt lawyer who informs him of approximate date of hearing of a case or the litigant himself is vigilant enough to keep in touch 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 gel 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 the 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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