1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 255 of 2009 (APPA) In Criminal Appeal No. 149/2004. Hemraj s/o Chindhuji Hargude and another vs. State of Maharashtra, Through Police Station Officer, Police Station: Mohadi, Dist. Bhandara. . ----------------------------------------------------------------------------------- Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. CORAM : A.P.Lavande & Prasanna B.Varale,JJ DATE OF RESERVING : 12.11.2009 DATE OF PRONOUNCEMENT : 17.11.2009 Heard Mr. J.M. Gandhi, learned counsel for the applicants and Mr. T.A.Mirza, learned A.P.P. for the respondent. 2. By this application, the applicants who are the appellants in Criminal Appeal No. 149/2004 seek recall of the Judgment and order dated 9.11.2009. The said Judgment and order partly allowing the appeal was passed on 9.11.2009 in the absence of the counsel for the applicant after hearing Mr. T.A. Mirza, learned A.P.P. appearing on behalf of the State. 3. By Judgment and order dated 9.11.2009 2` Criminal Appeal No. 149/2004 was partly allowed. The conviction of appellant no. 1 for the offence punishable under Section 302 with the aid of Section 34 of the Indian Penal Code was set aside and his conviction for the offence punishable under Section 324 of the Indian Penal Code was maintained whereas the conviction of the appellant no. 2 for the offence punishable under Section 302 of the Indian Penal Code was maintained and his conviction under Section 324 with the aid of Section 34 of the Indian Penal Code was set aside. 4. It is the case of the applicants that they approached Advocate Mr. J.M. Gandhi who was to argue the appeal. According to the applicants Advocate Mr. J.M. Gandhi had filed appeal and the memorandum of appeal was signed by Advocate Mr. R.S. Akbani who at the time of filing of the appeal was associated with Advocate Mr. J.M. Gandhi but lateron he started his independent practice and as such was not associated with Advocate Mr. J.M. Gandhi. According to the applicants, since the name of Advocate Mr. J. M. Gandhi did not appear in the cause list of 9.11.2009 Advocate Mr. J.M. Gandhi did not appear in the court to argue the appeal and as such the appeal came to be disposed of without hearing Advocate Mr. J.M. Gandhi. It is, therefore, the case of the applicants that the Judgment and order dated 9.11.2009 deserves to be recalled in order to give an opportunity to Advocate Mr. J.M.Gandhi 3` to argue the appeal on behalf of the appellants. 5. Mr. Gandhi in support of the application placed reliance upon the Judgment of the Apex Court in G. Raj Mallaiah and another vs. State of Andhra Pradesh (1998 CRI. L.J., 3290) in which the Apex Court set aside the conviction of the appellant which was recorded by the High Court of Andhra Pradesh without hearing the counsel for the appellant. It was the case of the appellant in the said appeal that on account of mistake on the part of the Registry of High Court the name of the counsel appearing for the appellant in the appeal preferred by him was not shown in the cause list and consequently the counsel being not aware of the listing of the case before the court did not appear and consequently the appeal was disposed of. According to Mr. Gandhi, since his name did not appear in the cause list he did not appear and, therefore, the Judgment and order dated 9.11.2009 is liable to be recalled so as to give opportunity to him to argue the matter on behalf of the appellant. 6. Per contra, Mr. T.A. Mirza, learned A.P.P. submitted that once the Judgment is passed by this court this court has no jurisdiction to recall the Judgment and order. Mr. Mirza placed reliance upon the Judgment of the Apex Court in State of Kerala vs. M.M.Manikantan Nair (2001 CRI. L.J. 2346). 4` 7. We have considered the rival contentions and perused the record and Judgments relied upon. Perusal of the record clearly discloses that the Memo of appeal was signed by Advocate Mr. R.S.Akbani and Vakalatnama was signed only by Advocate Mr. R.S.Akbani. In this factual background no fault can be found with the Registry in not showing the name of Advocate Mr. J. M. Gandhi in the cause list. Therefore, the ratio laid down in the case of G. Raj Mallaiah (supra) relied upon by Mr. J. M. Gandhi is not applicable. Since the name of Advocate Mr. R. S. Akbani was appearing in the cause list as well as in the record of the appeal as the only advocate representing the appellants, we disposed of the appeal in the absence of Advocate Mr. R.S. Akbani after going through the records minutely with the assistance of learned A.P.P. in view of the ratio laid down by the Apex Court in three Judges Judgment in Bani Singh and others vs. State of U.P. (AIR 1996 Supreme Court, 2439). 8. In view of the above position, it is clear that the very basis on which the application has been filed by Advocate Mr. J.M.Gandhi is without any foundation. Therefore, the ratio laid down in the case of G.Raj Mallaiah (supra) would not help the applicants. Therefore, in our considered opinion no case has been made out by the applicants for recalling the Judgment and order dated 9.11.2009 passed in Criminal Appeal 5` No. 149/2004. 9. For the reasons aforesaid we find no merit in the application. Hence, the application is dismissed. JUDGE JUDGE patle