JUDGMENT K.N. Ojha, J.
1. Instant application has been moved to recall order dated 16.8.2000 whereby Criminal Revision No. 108 of 1997, Smt. Manju Singh v. Tara Chand and Anr. was dismissed on 16.8.2000.
2. Heard Sri Ashok Nath Tripathi, learned counsel for the applicant and Sri Arvind Srivastava, learned counsel for the opposite parties and have gone through the record.
3. The fact of the case is that Smt. Manju Singh lodged FIR against the opposite parses Tara Chand and his son Vijay Pal on 7.5.1993 at 9.15 P.M. at police station Kotwali Dehat, district Saharanpur, bearing Crime No. 212 of 1993 under Sections 323, 324, 504 I.P.C containing the fact that on 7.5.2003 at 7.00 P.M. in furtherance of common intention of both the Opposite parties, the O. P. No. 2 Vijay son of O. P. No. 1 Tara Chand caused injuries with knife on abdomen of her husband Dharam Sen and other injuries were also caused with intention to commit his murder. After the FIR was lodged medical examination of Dharam Sen was got done in Bhel Main Hospital, Ranpur, Hardwar on 7.5.93 at 7.30 P.M. and following injuries were found on his body:
1. Incised wound 6.0 cm x 1.0 cm x depth not probed on front upper part of abdomen 8.0 cm below the epigastric natch. Fresh bleeding present. Margins clean cut Referred for urgent surgical operation.
2. Abraded contusion 5.0 cm x 2.0 cm back of left fore arm 10.0 cm below the elbow joint.
3. Complaint of pain in right arm.
4. Injury No. 1 was kept under observation. Dharm Sen was admitted in Bhel Main Hospital, Ranipur, Hardwar, In surgical Ward on 8.5.1993 at 1.15 A.M. He was immediately operated and operative findings were as below:
1. Incised wound 2 long in the epigastric region place transversely.
2. On exploration the above mentioned would was found to be deep and the peritoneum was torn and greater omenturn coming through it.
3. No injury to abdominal viscera.
5. The patient remained admitted from 8.5.1993 to 19.5.1993 when he was discharged from the hospital.
6. After investigation charge sheet was submitted under Section 307, 323, 324, 504 I.P.C. and Criminal Case No. 2095 of 1993, State v. Tara Chand and Anr. was registered. The learned 1st ACJM, Saharanpur committed to the Court of Sessions on 9.4.1996 under Sections 307, 323, 504 I.P.C. At the tie the charge was being framed by the learned Additional Sessions Judge, it was submitted by the learned counsel for the opposite parties that case under Section 323, 324, 504 I.P.C. was made out and not under Section 307 I.P.C. After hearing the learned counsel for the parties the Vth Additional Sessions Judge, Saharanpur, allowed the prayer of the accused-opposite parties and discharged them from Section 307 I.P.C. and fixed it for framing charge under Sections 323, 324, 504 I.P.C. and or sending back the record to the Court of C.J.M., Saharanpur, for proceeding with the trial.
7. Aggrieved therefrom Criminal Revision No. 108 of 1997, Smt. Manju Singh v. Tara Chand and Anr. was filed. It was taken up for admission before this Court on 31.1.1997 and 22.1.1998 was fixed for admission. It could not be taken up and 18.2.1998 was fixed in the supplementary cause list. Ultimately it found place in the cause list of 16.8.2000. On 16.8.2000 list was revised. None appeared for the revisionist Manju Singh. This Court passed the order as below:
"Hon'ble B.K. Rathi, J.
List has been revised. None is present for the revisionist. Sri H.N. Sharma is present the opposite party.
I have perused the order, I do not find any illegality in the order. The revision has not been admitted.
It is dismissed.
Dt/- 16.8.2000 (Initial of the Judge)"
8. It is submitted by the learned counsel for the opposite party that. once the revision has been dismissed there is no provision to restore it. Besides it this case was not only dismissed in default but it was considered on merit 2nd this Court found no illegality in the impugned order. Thus the case has been decided on merit and it is not mere dismissal order in default. Therefore, the order of dismissal dated 16.8.2000 cannot be recalled.
9. Learned counsel for the applicant has cited many rulings and it is submitted that the revision was decided: in absence of the revisionist. Opportunity of hearing was not given. The learned counsel for the revisionist could not appear because the office of the learned counsel for the revisionist could not mark the case in the cause list of 16.8.2000: and the revisionist should not suffer due to mistake of the office the learned counsel for the revisionist.
10. A perusal of the record shows that in this case knife injuries are said to have been caused in the abdomen of Dharam Sen. What was required by the learned Additional Sessions was to consider the gravity, nature and the seat of the injuries, nature of the weapon, intention of the accused and other circumstances of the case to ascertain as to whether the injury no. 1 amount only to simple injury caused sharp edged weapon and was lying within the ambit of Section 324 I.P.C. or it amounted to section 307 I.P.C. The learned Additional Sessions Judge was of the opinion that it was a' simple injury and therefore direction was made to frame charge under Section 324 I.P.C. only. What was required in the case was that after hearing the learned counsel for both the parties the revision was to be dismissed or allowed by making some prima-facie observation about the injury no. 1. For such observation the order must be speaking one, which is intelligible to a person reading, the order as in what circumstances the Court has taken the view that the order passed by the learned Additional Sessions Judge does not suffer from any invalidity but in instant case while passing order dated 16.8.2000 this Court has simply written that there is no illegality in the order. If the learned counsel for the applicant would have got opportunity, cement would have been advanced to show as how, the injury No. 1 falls within the ambit of injury dangerous to life and hence charge under Section 307 I.P.C. was made out. There is no observation on this point in the order dated 16.8.2000, which is subject matter of consideration for being recalled. Thus the perusal of order dated 16.8.2000 shows that the learned counsel for the applicant could not advance, argument because he was not informed by his office that the case was listed for admission. While disposing of the revision even though it was written by this Court that ho illegality was found in the impugned order passed by the learned Additional Sessions Judge discharging: the accused from Section 307 I.P.C. There was no observation about injury No. 1. Thus it is to be considered as to whether the law permits to recall such order and whether the decision dated 16.8.2000, as mentioned above, is decision of the revision on merit or it cannot be said that the revision has been decided on me, it and if so whether it would be in the interest of justice that the revisionist should be allowed to advance argument and the order dated 16.8.2000 be set aside or not
11. A Full Bench of Allahabad High Court has laid down in AIR 1959 Allahabad 315, Raj Narain v. State of U.P. the High Court has power to review, recall or alter its own decision in criminal revision and rehear the same. But this can be done only under one of the following three conditions:
1. For the purposes of giving effect to any order passed under the Code of Criminal Procedure,
2. For the purposes of preventing 3buse of the process of any Court.
3. For otherwise securing ends of justice.
12. In AIR 1981 SC 1156, M.N. Shastri v. S.S. Satyanarayan, it has been held by Hon'ble the Apex court that if the High Court accepts the reference mare by Additional Sessions Judge without hearing the other party, the order is not legal and it should be recalled because it is manifestly contrary to the audi-alteram-partem rule of natural justice.
13. In AIR 1982 SC 1175 Shyam Sunder v. State of Rajasthan, it was laid down by Hon'ble the Apex Court that though reasons were given for dismissing the appeal but if the appeal is decided when appellant was not represented by his learned counsel the decision may be set aside as the possibility of the Court being pursued in case the learned counsel for the appellant would have advanced the argument cannot be excluded.
14. It was laid down by Full Bench of Hon'ble high Court of Rajasthan in AIR 1987 Rajasthan 83, Habu v. State of Rajasthan that power of recall is different than the power of altering or reviewing the judgment. In all democratic societies right of hearing has been given utmost importance and it cannot be taken away. The sound judicial view could 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 exparte and if it has been decided exparte and valid reasons have been shown that there had been failure of justice, the inherent power of the High Court should be exercised. This of course is not to be meant for giving long rope to those person, who either intend to delay the course of justice to avoid the case from being heard by a particular Bench. The litigant is at the mercy of others including the office of the learned counsel. If a case goes unattended and if lawyer misses the case being busy elsewhere and is unable to attend the Court, the sufferer is litigant and thus the Court is under a duty to ascertain that the case is decided on merit.
15. In 1989 Cri. L J. 2382, Girdhari Lal and Ors. v. Pratap Rai Mehta and Anr. it has been laid down by Hon'ble High Court of Karnataka that there is vital arid significant difference between the words "alter", "review" and "recall". Section 362 puts a complete bar, for altering or reviewing of a judgment or final order on merits and the only power given to the Court is that it can correct a clerical or arithmetical error. The said section does not impose any prohibition for recalling an order and if such order is recalled it would result in complete abrogation as if there was no judgment or final order at all.
16. In 1992 (27) ACC 129, Raghuvira and Ors. v. State of U.P. it has been held by this Court that if revision is dismissed in default of the learned counsel Section 362 of Cr.P.C. creates no bar to alter the order and revision can be restored. It was held that the term "judgment" has not been defined in the Criminal Procedure Code and a judgment means expression of opinion of the Court after due consideration of the entire material on record. If there is no application of mind and there is sufficient ground due to which argument could not be advanced the order dismissing the revision may be recalled.
17. In 2000 Cri. L.J. 3051, Shabihul Hasan Jafari v. Zarin Fatma and Anr. it was laid down by this Court that when the case was dismissed in default it can be restored for adjudication on merit by this Court.
18. In 2004(48) ACC 116, Smt. Kusum Devi v. Ram Chandra Maurya, it has been laid down by this Court that if revision is dismissed in default and none appeared for the revisionist due to the reasons beyond the control of the revisionist, restoration application should be allowed and the revision should be restored. While laying this law this Court relied on 1985(22) ACC 447 (SC) Smt. Savitri v. Govind Singh and 1974 (11) ACC 380 (SC) Sri Bhagwan Dutt v. Smt. Kamla Devi.
19. The learned counsel for the respondent has placed reliance on 1985 Cri. L J. 62, Smt. Akhtari Begum v. Ahad Husain and Ors., wherein it has been laid down by this Court that the Court has no power to set aside exparte order.
20. In 1992 Cri. L J. 2015, State of Maharashtra v. S.P. Lalvani, it has been laid down by Hon'ble High Court of Bombay that if a litigant does not appear for any reason inspite of notice of the proceeding he cannot contend that he has been deprived of his right of being heard because the responsibility of the Court is to see that opportunity of being heard is afforded to him and not to chase the litigant and ensure that he remains present on hearing.
21. In instant case the order sheet does not show that the revisionist remained avoiding to proceed with the case. The case listed in the cause list could not be noticed and the order was passed. In view of the observation made by the Hon'ble Apex Court in aforementioned rulings the law laid down in these rulings cannot be relied on that even interest of justice requires still the power of this Court are fettered in recalling the case and deciding the same on merit.
22. In instant case the record does not show that the applicant-revisionist. was avoiding to proceed with the case. The ground] as deposed in the affidavit is also sufficient that the office of the learned counsel could not notice the case that it was listed on 16.8.2000 and the revision was dismissed.
23. Thus the ground for non-appearance of the revisionist or her learned counsel to proceed with the case at the time of revision is sufficient and even though it is written in order dated 16.8.2000 that there was no illegality in the impugned order but the order is not speaking one. It does not disclose as how the incised wound caused in the abdomen due to which the victim remained in hospital from 7.5.1993 to 19.5.1993, is an injury within the meaning of Section 324 and it does not fall within the ambit of Section 307 I.P.C.
24. Therefore, interest of justice requires that the revisionist should be allowed opportunity of argument and the order be recalled.
25. The order dated 16.8.2000 passed by this Court dismissing the revision is recalled. The revision No. 108 of 1997, Smt. Manju Singh v. Tara Chand and another is restored to its original number. List the case in the 1st week of May 2005 for admission. In the meanwhile the proceedings of the Criminal Case pending in the court below will remain stayed till the next date of listing.