1 Kalia vs. State of Rajasthan S.B.Cri. Misc. Petition No.89/2009 in SB Cri. Appeal No.621/1980 Date of Order : 28.01.2009 HON'BLE MR. MANAK MOHTA, J. Mr.Ram Rakh Vyas for the petitioner/s. Mr.O.P.Rathi , Public Prosecutor. The instant misc. petition is filed by the accused petitioner under section 482 Cr.P.C. with reference to judgment dated 31.08.1995 passed by this court in SB Cri Appeal No.621/1980. Notice of this petition was given to the learned Public Prosecutor. Record of this case was perused. During the course of arguments, it was submitted by the learned counsel that S.B.Cri. Regular Appeal No.621/1980 against the judgment of conviction and sentence dated 30.09.1980 passed by the Additional Sessions Judge, Raisinghnagar in Sessions Case No.11/1980 under sections 307 and 324 IPC sentencing him to imprisonment for 40 2 months and a fine of Rs.50/- was pending for hearing in due course. For the first time, it was listed on 22.08.1995. On that day none appeared on behalf of accused appellant but the learned Judge on that day heard arguments of learned Public Prosecutor and reserved the judgment. On 31.08.1995 judgment was pronounced. It was submitted that accused was on bail. He was not aware of the date of hearing and inadvertently counsel could not appear. It was urged that when the appeal was being heard on merit, accused should have been called and in his absence appeal should not have been decided. Learned counsel for the applicant further submitted that it is well settled position of law that criminal appeals are not decided exparte. The court of appeal can appoint amicus curiae for the accused applicant, if it is found that accused is not represented by counsel. It was urged that, in this way, the accused appellant has been deprived from his valuable right of hearing. Therefore, it was prayed that the impugned judgment passed in his absence, be set aside and the appeal be restored to its original number and the accused may be afforded proper 3 opportunity to place his submissions. Learned counsel submitted that in compliance of the impugned judgment, at present the accused is behind the bars. In fact , without hearing him on merit, his appeal has been wrongly disposed of. A prayer was made to allow this petition to recall the said order and to take back on record the decided appeal No. 621/1980 dated 31.08.1980. I have also heard learned public prosecutor . Keeping in mind the contentions raised by the learned counsel for the petitioner I have perused the documents available on record. It seems that the accused applicant filed an appeal against the judgment passed in sessions case No.11/1980 by which he was convicted under section 307 and 324 IPC and was sentenced to imprisonment for forty months R.I. and a fine of Rs.50/- . He had challenged the correctness and validity of the impugned judgment in said appeal. From the perusal of the record, it further reveals that for the first time on 22.08.1995, case came up for hearing . On 4 that day, none appeared on behalf of accused. Therefore, arguments of Public Prosecutor were heard and judgment was reserved. On that day, neither his counsel appeared nor any efforts were made for securing his appearance. Considering the over all facts, proper opportunity of hearing has not been afforded to accused appellant. Further when none was appearing on behalf of accused , either counsel should have been informed or any amicus curiae should have been appointed, so that he may plead the case of the accused applicant. Otherwise it is found that he has been deprived from hearing . It is settled proposition of law that one cannot be condemned without hearing. Thus, that was a violation of the principles of natural justice. The above conclusion finds support from the observation made in the case of Tika vs. State of U.P. [ 1975 Cr.L.J. 337] , wherein the Division Bench of Allahabad High Court has observed that if an appeal is disposed of without hearing the appellant's counsel, it amounts to gross violation of natural justice and the court has inherent power to recall such orders. The observation is quoted as under :- 5 “Where a criminal appeal has been disposed of without hearing the appellant's counsel “if he appears” it is gross violation of natural justice and the Court has certainly inherent jurisdiction to recall such order and treat it as nullity.” Thus, considering the facts of the case, in the interest of justice, I feel it proper to recall the said judgment dated 31.08.1995 passed in Cri.Appeal No.621/1980, in absence of accused applicant and think it proper to fix it for regular hearing. The order dated 31.08.1995 is recalled. The appeal be registered at its original number. The misc. petition filed in this respect is allowed, and is disposed of accordingly. (MANAK MOHTA), J. l.george