Farooq Sultan Shaikh Vs The State of Maharashtra

J.G. Chitre. J.

1. All of them have been heard at length.

2. Shri Ansari has submitted this application on behalf of one Farooq Sultan Shaikh who happens to be charged for committing an offence punishable under provisions of Section 392, 397 of IPC. His bail application bearing application No. 1219 of 2001 was before the Court for hearing on 29.5.2001. It was withdrawn with permission of this Court. Thereafter another bail application was filed which was withdrawn on 11.1.2002, which was bearing No. 2834 of 2001. Again permission was sought to have the liberty to file the bail application again because at that time the counsel appearing for the applicant submitted that relevant documents including bail orders granted to other co-accused were not annexed to bail application. Thereafter another bail application bearing No. 486 of 2002 was filed. Urgent circulation was sought on 7.2.2002 for taking the hearing of the said bail application on 13.2.2002. It was granted and the bail application came up for admission. The concerned police officer was deputed to remain present in the Court for clarification of antecedents of the said applicant-accused on 11.2.2002. The bail application could not reach for hearing from 13.2.2002 to 25.2.2002. On 4.3.2002, the counsel for the applicant sought the circulation for moving the bail application before another Judge. On 7.3.2002, the office placed the bail application before the Hon''ble Shri Justice R.K. Batta who dismissed the bail application for default. On 13.3.2002, Criminal Application bearing No. 992/2002 was filed for restoration circulation. The application was permitted to be taken up for hearing on 18.3.2002. On 18.3.2002, the said criminal application was allowed by setting aside the dismissal order. Criminal Application No. 486 of 2002 was directed to be kept on Board on 28.3.2002. From 28.3.2002 to 3.5.2002, the applicant says that the bail application could not come for hearing even after mentioning on account of overload of work. On 3.5.2002, urgent circulation was sought by mentioning before the Vacation Judge on 10.5.2002. Circulation was granted and the bail application came for hearing on 10.5.2002. On that date arguments were advanced on behalf the applicant in that application but it seems that the Court wanted to know the criminal antecedents of the applicant and the Addl. Public Prosecutor (Shri Konde Deshmukh who then was having the seisin over the brief) sought adjournment for getting necessary information about the criminal antecedents of the applicant. Thus, the application was stayed on for hearing to 14.5.2002. On 14.5.2002, Shri Ansari, counsel for the applicant, submitted that he waited till 4.45 p.m. and when he was in verandah he had a talk with Shri Konde Deshmukh, the Addl. Public Prosecutor who was handling the said brief on behalf of the prosecution and according to Shri Ansari Shri Konde Deshmukh told him that the application would be heard after vacation. Shri Ansari, Advocate, submitted that on account of that he did not remain present on 15.5.2002 when the said application was taken on Board for hearing as the remaining Board was taken for hearing on the next date by the Vacation Judge (present Judge who is deciding this application). On 15.5.2002 this Court after perusing the case diary dismissed the bail application on merit. Being aggrieved by that, now this application has been submitted with a prayer to restore it in the interest of justice by exercising inherent powers by recalling the said order of dismissal of the bail application on merit.

3. Shri Ansari, Counsel appearing for the applicant, placed reliance on the judgment of Rajasthan High Court Full Bench in the matter of Habu Vs. State of Rajasthan, wherein the Full Bench of Rajasthan High Court held that there are distinct difference between High Courts power to recall its order than the power of altering or reviewing the judgment. The powers u/s 482 of Cr.P.C. 1973 (hereinafter referred to as "Code" for convenience) can be and should be exercised by the High Court for recalling the judgment in case the hearing is not given to the accused and the case falls within one of the three conditions laid down u/s 482. He also placed reliance on the judgment of the Supreme Court in the matter of Chakareshwar Nath Jain Vs. State of Uttar Pradesh, (2) wherein the Supreme Court held that:-

"It appears from para 7 of the petition for Special Leave which has not been controverted on behalf of the respondent, that the learned Chief Justice of the Allahabad High Court had adjourned the cases in which Mr. S.N. Aggarwal was appearing as advocate for the period 29th May, 1978 to 9th July, 1978 and, therefore, he was under the impression that his cases would not be taken up for hearing on any day during this period. Unfortunately, due to some oversight the revision application of the appellant in which Mr. S.N. Aggarwal was appearing as advocate was taken up for hearing on 29th May, 1978 and despite the absence of Mr. S.N. Aggarwal, it was heard ex parte and dismissed on merits. It is obvious that the revision application should not have been taken up for hearing on 29th May, 1978 when the learned Chief Justice had adjourned the cases of Mr. S.N. Aggarwal and had directed that they should not be placed for hearing during the period 29th May, 1978 to 9th July, 1978. The order disposing of the revision application of the appellant ex parte must, therefore, be set aside and the revision applicant must be remanded to the High Court for disposal according to law."

Placing reliance on these two judgments Shri Ansari submitted that the order of dismissal of the bail application passed on merit be recalled and this application be heard on merit again. As an imputation has been made against Shri Konde Deshmukh, the Additional Public Prosecutor, he was also heard along with Shri Gadkari on two points for affording him the opportunity of putting his say on the allegation made by Shri Ansari against him and to know the exact situation prevalent on that date, at that time for understanding the submissions advanced by Shri Ansari. Shri Konde Deshmukh clearly stated that he did not tell anything to Mr. Ansari leave aside the information that the said bail application would be heard after vacation. On the contrary, Shri Konde Deshmukh submitted that it was none of his business to say that way and he did not have an authority to say that way also. He further submitted that it was the duty of Shri Ansari to get the information from authenticated person about the hearing of the bail application.

4. Shri Gadkari, Additional Public Prosecutor, appearing for the State, submitted that the said bail application has been decided on merit after Court perusing the case diary. Therefore, it is not a case for recalling the said order and restoring it for hearing as it has been prayed by Shri Ansari. He submitted that facts in Chakareshwar Nath''s case (supra) are totally different from the fats of the present case. He further submitted that the facts of Habu''s case (supra) are totally different from the facts of the present case and, therefore, the petitioner cannot take the advantage of the observations made by the Supreme Court in Chakareshwar Nath''s case and Habu''s case. He submitted that this application be dismissed.

5. Obviously as quoted above, the Supreme Court was dealing with a different set of fats in Chakareshwar Nath''s case. There the Chief Justice of Uttar Pradesh High Court had given specific direction to the office for not listing the cases in which Advocate S.N. Aggarwal was appealing. But inspite of that the office had listed the case of Adv. S.N. Aggarwal for hearing (and, therefore, it seems to have been heard and decided). Such mistakes do happen on account of the haste and bustle of work and extra pressure of the work load under which the office staff and even Judges are working at present. The fats and circumstances of the present case are totally different from the facts and circumstances of Chakareshwar Nath''s case.

6. In Habu''s case, the Full Bench of Rajasthan High Court dealt with the topic at length. In the interest of justice it is necessary to quote some portions of the said judgment dealing with the aspect which has been argued before this Court. In that case, the Full Bench of Rajasthan High Court observed:-

"In all democratic societies right of hearing has been given utmost importance, rather laws have been enacted from time to time for providing legal aid to the persons who are unable to afford the lawyers. The 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 High 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.

"While considering the scope of right of hearing due consideration has to be given to Section 304, Cr.P.C., Articles 21 and 39-A of the Constitution. Section 482, Cr.P.C., will have to be considered in the light of the aforesaid provisions. In all civilized and democratic societies right of hearing has been considered to be one of the most fundamental of the fundamental rights flowing from principles of natural justice and principles enshrined in well known maxim audi alteram par tem."

"The power of re-call is different than the power of altering or reviewing the judgment, and powers u/s 482, can be and should be exercised by the High 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 u/s 482."

"Inherent powers are pervasive and comprehensive enough to arm the Court for 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 having 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 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 get and the advice which is tendered to them by their counsel. It can also not be expected that each and every litigant will have the lawyers of the same competence which the other can afford, but at the same time it is always expected from the 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. 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 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 overreach the Courts. The Courts in such case must not hesitate in proceeding against such persons."

A reference has been made by Rajasthan High Court Full Bench to the judgment of the Supreme Court in Swarth Mahto and Another Vs. Dharmdeo Narain Singh, where the facts were that there was improper publication of the cause list, viz., cause list mentioning the appeal number but not he names of the respondent and his advocates results in not posting the respondent''s advocate with notice of hearing. When an advocate examines the cause list he is generally not guided by the number of the case but his name appearing against the case. The Supreme Court further held in that matter that where an appeal against acquittal came up for hearing nearly after 2 1/2 years after issuance of notice to the accused and the cause list of the date of hearing contained only appeal number but not the name of the accused-respondent and his advocate resulting in conviction of the accused without hearing his counsel it could not be said that the accused was given reasonable opportunity of hearing. Hence, an application by him for rehearing of the appeal in his presence deserves to be allowed. Carrying further this view expressed by the Supreme Court in Swarth Mahto''s case (supra), the Full Bench of Rajasthan High Court considered in what conditions the powers u/s 482 of the Code should be exercised by the High Court. A mention has been made to Articles 21 and 22 of the Constitution of India as well as to Article 39A of our Constitution. Articles 21 and 22 guarantees fundamental rights to a citizen in respect of the criminal trials and conviction and his right to defend himself. Article 21 deals with right to live and Article 22 deals with the right of the accused to get defended by an advocate of his choice. Article 39A of our Constitution makes it obligatory to provide a legal aid to the accused who is unable to engaged a lawyer for his defence at the cost of the State. Therefore, as a natural corollary, the accused is entitled to be heard before any order is passed against him. But that does not give a licence or a free right to a litigant or his advocate to absent himself as per his convenience either for some other oblique purpose or for avoiding a Bench. There is inherent duty on such litigant or the lawyer to get himself informed about the date and time when his lis is likely to be heard by the Court. A litigant nor the lawyer has right to recall the course of the business to be transacted in the Court in view of the cause list or daily board. He has to remain present in the Court whenever his matter is reasonably likely to be taken for hearing. In this context, the allegation made by Shri Ansari against Shri Konde Deshmukh has to be viewed and this Court would be expressing its opinion about it later on after considering the powers put forth by provisions of Section 362 of the Code. Section 362 of the Code provides that "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 deposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." While dealing with this provision of law, two categories will have to be marked (1) the category of the judgments which are dictated may be in open Court but not signed and second the judgments which may be dictated in open court and are signed after correcting typing or clerical mistakes. In some courts judgments are reserved. In some courts judgments are dictated in open court. The judgments cannot be said to attain the finality unless they are checked, typing mistakes or clerical mistakes are corrected and thereafter signed as endorsement of finality to it. In between, the Court should adopt open-mindedness for getting assistance of the advocates of both the sides because its human to (SIC) and none can say to be perfect in his act or in his life style. Broad minded approach is the indicator of civilised society and democratic approach which has been upheld by all societies of this generation, this century and the decade. On many occasions it so happens that in the course of dictation the lawyers do not find it proper to obstruct the flow of the dictation and they choose to keep silent till the judgment is dictated completely. Thereafter they in a proper, polite, well mannered way point out the things remained to be considered or point out the mistakes in context with the facts and circumstances of the case. As the experience tells and the practice prevalent, such mistakes are corrected there and there only. But even then some mistakes do occur in the dictated judgment when the steno types them. The broad mindedness should permit the Advocates to make a submission in respect of factual aspects and other aspects also, but, before the judgment is signed. Because a person is susceptible to error of forgetfulness or is susceptible to the error of loss of memory temporarily. He may or may not remember a thing to be mentioned at that time only but may remember it a day after or two days thereafter. It could not be democratic, proper to shut the doors for such corrections because after all the Courts are meant for doing the justice and the justice has to be done to the fullest sense and in its real spirit. Justice is not only to be done but it is shown to have been done and the litigants as well as advocates should also have the right of participation in the process because the litigants are the soul of the litigation and the advocates are officers of the Court. The total efforts put by all of them conjointly achieves the last goal of administration of justice in its true spirit and fullest sense.

7. Therefore, seriously it has to be seen as to what extent Section 362 of the Code gives power to the Court to alter the judgment. Once the judgment is signed and has attained the finality it should not. Law puts a bar on it. But before that it can be done legitimately even by remaining in four corners of Section 362 of the Code. It is pertinent to note that the beginning sentence of Section 362 of the Code Starts with "Save as otherwise provided by this Code" and Section 482 comes into picture. Section 482 provides that "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." Section 482 of the Code even chronologically comes after Section 362 which indirectly allows to interfere with. After enacting Section 482 of the Code, the Legislature thought it fit in its wisdom to enact Section 482 of the Code which gives a wider range of the power to the High Court and that is inherently bestowed on the High Court and that is meant for the purpose of achieving the ends of justice.

8. Therefore, if the Court feels and if the Court is satisfied and if the Court is convinced that it is necessary to change the judgment for achieving the ends of justice, this Court feels that there is no bar of Section 362 of the Code to do necessary exercise for achieving the ends of justice. But the Court should be fully satisfied and convinced that it is necessary to do so for the purpose of achieving the ends of justice and not otherwise and here comes the doctrine of recalling the order. Alter or changing the judgment is totally different from recalling the judgment and order. Recalling the order comes under the full sweep of provisions of Section 482 and inherent powers of the High Court. If Court finds it that it is necessary to do so in the interest of justice, Court should not hesitate for doing it because the justice is to be done for that poor person who has been described in Habu''s case as "poor sufferer for the mistakes of others except him". The human experience tells that number of litigants are not aware of the courts atmosphere. They get baffled by seeing the big building of courts, number of advocates wearing black coats and gowns moving around them. They get frightened by getting the barrage of questions asked to them when they stand in the witness box. They are required to move from pillar to post for making the enquiries and the plight of the litigants becomes pathetic in view of the piling number of proceedings, petitions, cases and appeals. Where from such poor person should get the information about the date and time of his lis being heard. As pointed out in Habu''s case by the Full Bench of the Rajasthan High Court, if he happens to be fortunate of getting a lawyer who is careful enough to inform him well in time of the date and probable time of the hearing of his matter, he gets himself able to be presented before the Court and gets the opportunity of being heard either personally or through a lawyer. Otherwise, the Rajasthan High Court has quoted what happens to be the plight of such litigants.

9. It leads to further pondering whether in every matter the Court should restore the orders passed by recalling the order and restoring the matter to the same status which it was having before it was dismissed either for default or on merit? Whether the lawyers do not have any responsibility of their own to remain present at proper time when the matter is likely to be taken up for hearing by the Court? Whether they should not inform to the litigant the date and time of hearing of the respective lis? When the Court is satisfied and convinced that the litigant and lawyer or either of them has absented for oblique motive for avoiding the Bench, Court should not hesitate in refusing the prayer of such recalling the order, recalling of the judgment whether passed on merit or without considering the merit. Because such nasty practice has to be curbed and has to be curbed with hammer hand, otherwise, if the Court feels, is satisfied, is convinced that for achieving the ends of justice it is necessary to recall the said order or judgment, it should do it for achieving the ends of justice.

10. After adverting its attention to the points raised by the counsel appearing for both the sides, this Court comes to the facts of the present case and the circumstances of the present case and the material which this Court needs to consider for the purpose of deciding this application. Shri Ansari expressed his regrets about making the allegation against Shri Konde Deshmukh. That is his fair mindedness. He submitted that he withdraws those allegations. But already damage has been done. Shri Konde Deshmukh has been hurt in the mind. Of course, he has forgotten that on the spot. But as it is a matter of record, this Court is called on to say something on that.

11. On 14.5.2002 after 4.45 p.m. it was the duty of Mr. Ansari, Advocate, to ask the Sheristedar - Reader or Associate of the Court as to when his application was likely to be taken up for hearing. He should have waited and should have asked him whether the same board was likely to be continued on the next day. Mr. Konde Deshmukh has absolutely no reason to express any opinion about that. In fact it was wrong to ask him. Shri Ansari, Advocate, has clarified later on that it was a casual talk. Be that as it may. But that cannot be a ground for restoring the said application or recalling that order which shows by itself that the said application has been decided on merit. It is to be noted that when a Judge is doing the work as a Vacation Judge he does it on behalf of High Court for the larger interest of the society for giving a solace to hapless litigant. He is almost burdened by the applications, petitions, appeals, criminal and civil writ petitions and what not. Everybody is in hurry to get the hearing of his matter and to get atleast the authenticated copy of the order. Judges are also human beings. They are likely to commit mistakes. They cannot afford to write detail orders while deciding all the matters in Vacation. The order should indicate whether judicial mind has been applied or not. In the present case, the order itself shown that the Judge had perused the case diary and thereafter passed the order. Therefore, by itself, it cannot be said that this is a fit case where the said order should be recalled. Furthermore, it is to be noted that in this case no injustice would be caused to the present applicant because every accused is entitled to move an application for bail whenever he finds that he has a good case. He is entitled to prefer a bail application whenever there is a change in the circumstances. He should not wait for liberty to be granted by the Court. He should make out a case for hearing of the bail application on changed circumstances or on other grounds. This Court does not think that any court would disallow such a litigant or his lawyer to make the submissions in such events.

12. As Shri Ansari is insisting, this Court/makes it clear that the applicant is at liberty to move fresh bail application for bail and is at liberty to cite as many judgments as he finds necessary to cite but of course they should be relevant. The Courts are not expected to consider irrelevant judgments or judgments cited in wrong context.

13. Thus, this Court comes to a conclusion that in a fit case the Court should recall the order or the judgment even passed on merit if it is necessary to do so for achieving the ends of justice. But the satisfaction should be of the Court and Court should be convinced about it. This Court is fully supported by the judgment of the Rajasthan High Court Full Bench on this point.

14. Thus, so far as this application is concerned, it stands dismissed. If the applicant files the bail application again, it be not placed before this Bench because this Bench has already expressed its opinion about the entitlement of the applicant to get the bail, keeping in view the rules of self-imposed restraints.