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Tika and ors. Vs. State of Uttar Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1975CriLJ337
AppellantTika and ors.
RespondentState of Uttar Pradesh
Excerpt:
- - c, that is to give effect to any order under the code or to prevent the abuse of the process of any court or otherwise to secure the ends of justice'.in other words, it was ruled that the inherent powers of the court could be exercised in exceptional circumstances in order to achieve one of the three purposes mentioned in section 561-a of the code of criminal procedure. in terms the provision might have a limited application but after the enforcement of the constitution such argument is clearly untenable. 'when life or death hangs in the balance, the very state which undertakes the prosecution of the prisoner, also provides him, if ,poor, with such legal assistance. fact, even under the scheme of the code of criminal procedure such right seems to extend to the hearing of appeals as.....m. n. shukla, j.1. this is an application under section 561-a of the code of criminal procedure with a prayer that this court may recall its judgment dated 25-5-1973 whereby it dismissed criminal appeal no. 2849 of 1970. this application' originally made before hon'ble mr, justice h. n. kapur who had decided the appeal, but he referred it to a larger bench for an authoritative pronouncement and it is in these circumstances that this case has come before us.2. the applicants were convicted by the temporary sessions judge, etah under sections 147, 304/149 and 323/149 i.p.c. by his order dated 17-12-1970 and they were sentenced to different terms of imprisonment. the applicants preferred the aforesaid appeal to the hon'ble court against their conviction and sentences and the memo of appeal.....
Judgment:
M. N. Shukla, J.

1. This is an application under Section 561-A of the Code of Criminal Procedure with a prayer that this Court may recall its judgment dated 25-5-1973 whereby it dismissed criminal Appeal No. 2849 of 1970. This application' originally made before Hon'ble Mr, Justice H. N. Kapur who had decided the appeal, but he referred it to a larger Bench for an authoritative pronouncement and it is in these circumstances that this case has come before us.

2. The applicants were convicted by the Temporary Sessions Judge, Etah under Sections 147, 304/149 and 323/149 I.P.C. by his order dated 17-12-1970 and they were sentenced to different terms of imprisonment. The applicants preferred the aforesaid appeal to the Hon'ble Court against their conviction and sentences and the memo of appeal was presented by Sri Sudhir Chandra Varma, Advocate. The applicants were granted bail at the time of the admission of the appeal but before the date of final hearing the applicants engaged Sri Rajesh Ji Varma. Advocate, and he filed his appearance slip on behalf of the applicants on 15-5-1973. The version of the applicants is that the appeal was listed for final hearing on 17-5-1973 for the first time before Hon'ble Mr. Justice H. N. Kapur but the name of Sri Rajesh Ji Viarma was not shown in the cause list owing to the mistake of the office of the High Court and only the name of Sri Sudhir Chandra Varma, Advocate, who had no instructions to argue the above appeal, was shown in the daily cause list. The same mistake was repeated on 18th May, 21st May, 22nd May, 23rd May. 24th May and 25th May, 1973 by the office of the High Court arid ultimately the appeal was dismissed on 25-5-73 by Hon'ble Mr. Justice H. N. Kapur. The result was that Sri Rajesh Ji Varma was unable to appear on behalf of the applicants and argue the appeal owing to a default of the office of the High Court. It has also been stated by Babu Ram. one of the applicants, in his affidavit filed in support of the application under Section 561-A of the Criminal Procedure Code that Sri Sudhir Chandra Varma had no instructions to appear on behalf of the applicants at the stage of final hearing, It is alleged that the mistake of the office of the High Court in printing the cause list resulted in great prejudice to the applicants who were sentenced to five years' rigorous imprisonment each, without any hearing being given to the counsel of their choice. In these circumstances it 'has been prayed that the order of this Court dismissing the appeal may be reviewed.

3. The application was strongly contested on behalf of the State, although no counter-affidavit was filed. Since the facts are more or less admitted and relate to matters on record of the High Court, the case must be decided on legal grounds and the applicants cannot succeed on the mere ground that facts were not controverted by means of a counter-affidavit. The application was resisted by Sri S. V. Goswami who appeared on behalf of the State and contended that the facts did not establish that the applicants were not defended by a counsel of their choice and the omission of the name of Sri Rajesh Ji Varma in the cause list at the time of the final hearing of the appeal did not contravene any provisions of law or the Rules of Court or the principles of natural justice. The appeal was actually argued by Sri Sudhir Chandra Varma, Advocate and the case was decided after hearing him. who was a counsel of the applicants' choice and merely because another counsel was also subsequently engaged, the Advocate who filed the appeal did not cease to be a counsel of the applicants' choice. Admittedly no instructions were given by the applicants to the office of the High Court that instructions had been withdrawn from Sri Sudhir Chandra Varma appearing in the case.

4. The question, therefore, arises as to whether there was an infringement of any provision of law or the legal rights of the applicants or of the general principles of natural justice so as to call for a review of the judgment tendered in the appeal. Sri Goswami raised a /preliminary objection that on those facts the application under Section 561-A of the Code of Criminal Procedure was not competent, that finality attached to the judgments of the High Court in criminal appeals and the only remedy available to the applicants, who in the present application assailed the judgment on merits on a number of points, was to apply for the grant of a certificate of fitness for appeal to the Supreme Court. We are unable to accept the broad proposition argued by the State counsel that even in appropriate cases where real prejudice has been caused to a litigant by a mistake of the Court or its office, the Court is powerless to give relief to a person by exercising its inherent powers. It is a maxim that an act of the Court should not cause prejudice to any party and should any prejudice toe really occasioned to a person, the Court's powers must be equal to its desire to rectify its own error. Sri Goswami drew our attention to Section 430 of the Code of Criminal Procedure which provides that judgment and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in Section 417 and Chapter XXXII. He placed reliance on U. J. S. Chopra v. State of Bombay which ruled that the principle of finality of criminal judgments applied equally to criminal appeals and criminal revisions. This Court, however, in its Full Bench judgment in Mahesh v. State, 1971 All LJ 668 : 1971 Cri LJ 1674 had occasion to notice the ratio of U. J. S. Chopra's case (supra) and, if we may say with respect, it rightly observed at page 675: At p. 1G18 of Cri LJ.

In the effect of Section 561-A. Cr, P. C. was not considered, but it was otherwise held that no review or revision could be entertained once a judgment had been pronounced by the High Court in the exercise of its appellate or revisional jurisdiction and that there was no provision in the Criminal Procedure Code which would enable even the High Court to review the same or to exercise revisional jurisdiction over the same.

In an earlier Full Bench decision of three Judges of this Court in Raj Narain v. State, 1959 All LJ 56 : 1959 Cri LJ 543 (FB) Mootham, Section 4 interpreted U. J. S. Chopra's case to mean that a criminal case could be reheard only if the Court made an order without jurisdiction or the judgment was a nullity and that the assumption that the ^provisions of the Code were subject to Section 561-A was unfounded. The five Judges Full Bench in 1971 All LJ 668 : 1971 Cri LJ 1674 (supra) did not endorse this interpretation. Mathur, J. (as he then was) speaking for the Court observed at page 683 : at p. 1685 of Cri LJ

However, to lay down as a general rule, that in no other circumstances, or in no other case, can the judgment of the High Court in an appeal or revision be altered, reviewed or revised in exercise of the inherent power shall itself be against the provisions of Section 561-A Cr.P.C. This section begins with the words 'Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court'.

The law laid down by the Full Bench in 1971 All LJ 668 : 1971 Cri LJ 1674 (FB) (supra) was 'that the provisions of the Code of Criminal Procedure do not limit or affect the inherent power of the High Court, a judgment or order passed or made by the High Court in a Criminal Appeal or Revision can be altered, that is, reviewed, revised or reconsidered when necessary for one of the purposes mentioned' an Section 561-A, Cr. P. C, that is to give effect to any order under the Code or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice'. In other words, it was ruled that the inherent powers of the Court could be exercised in exceptional circumstances in order to achieve one of the three purposes mentioned in Section 561-A of the Code of Criminal Procedure. This Court can, therefore, have no hesitation in reviewing the judgment in the criminal appeal if the applicants succeed in making out a case under one of the three .purposes envisaged by Section 561 -A of the Code of Criminal Procedure and the present application is maintainable.

5. The applicants' counsel strongly contended that an accused person has a right to be defended by a pleader of his choice, the right of a party to engage a lawyer of his choice is a very valuable right and the Court should not lightly interfere with that right. As a broad proposition of law the contention advanced is unexceptionable. The right of a person accused of an offence or against Whom any proceedings are taken under the Code of Criminal Procedure to be defended by a pleader is a valuable right which was recognised by Section 340 of the Code of Criminal Procedure. Sri Goswami, however, submitted that the provisions of Section 340 of the Code of Criminal Procedure were applicable only to criminal trials and not to appeals. In terms the provision might have a limited application but after the enforcement of the Constitution such argument is clearly untenable. In our opinion Article 22 (1)' of the Constitution on its language makes that right .a constitutional right and unless there are compelling reasons Article 22 (1) should not be abridged by judicial construction. Many rights initially conferred by the Code of Criminal Procedure have been broadened and liberalised by the Constitution. What was implicit has been made explicit, what was vague has been particularised and many unlit corners have been illuminated by the blaze of the beneficent provisions of the Constitution. Article 22 (1) of the Constitution reads:

22 (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.

Thus, an accused is entitled to be defended by a legal practitioner of his choice. This may be described as 'the aid of skilled legal advice' which was emphasised by Madgavkar, J. in an eloquent passage in In re Llewelyn Evans as under:

If the end of justice is justice and the spirit of justice is fairness, then each side should have equal opportunity to prepare its own case, and to lay its evidence fully, freely and fairly, before the court, This necessarily involves preparation. Such preparation is far more effective from the point of view of justice, if it is made with the aid of skilled legal advice .... advice so valuable that in the gravest of criminal trials. 'When life or death hangs in the balance, the very State which undertakes the prosecution of the prisoner, also provides him, if ,poor, with such legal assistance.

6. We cannot accede to Sri Go-swami's contention that the word 'defended' in Article 22 refers only to criminal trials and is not applicable to criminal appeals and therefore in the instant case the applicants cannot invoke the provisions of Article 22 (1) of the Constitution. In. fact, even under the scheme of the Code of Criminal Procedure such right seems to extend to the hearing of appeals as well. The learned Government Advocate submitted that there was a marked distinction between the procedure applicable to trials and the one relating to appeals. At the trial the presence of the accused was necessary and under Section 353 of the Code of Criminal Procedure all evidence had to be recorded in the presence of the accused but under Section 423 of the Code of Criminal Procedure the appellate court could proceed in the absence of the appellant and this indirectly supports the inference that the duty of hearing the accused or his pleader is not cast on the appellate court but is confined to the trial stage. There is no substance in this contention. Apart from the fundamental right conferred by Article 22 (1) of the Constitution, even the scheme of the Code of Criminal Procedure cannot warrant such proposition. Chapter XXXI of the Code, comprised of Sections 404 to 431, deals with criminal appeals. An appeal is preferred under Section 419 of the Code. Section 421 provides that an appeal may be dismissed summarily even without calling for the record of the case but the proviso is very significant. It reads:

Provided that no appeal presented tinder Section 419 shall be dismissed unless the appellant or his pleader has had a reasonable opportunity of being heard in support of the same.

Where the appeal is not dismissed summarily and notice is given to the appellant about the final hearing of the appeal, Section 423 of the Code makes it obligatory on the court to hear 'the appellant or his pleader, if he appears'. It will be idle to contend that Article 22 (1) of the Constitution whittles down that right of the accused which he already enjoyed under the Code.

7. Really speaking an appeal is only a continuation of the trial and it is clear from some observations made by the Supreme Court in certain cases that a broad interpretation should be given to the language of Article 22 of the Constitution. In Jumman v. State of Punjab it was held that a criminal appeal was a continuation of the trial of the accused and the entire case was before the High Court. It was pointed out that while in a civil appeal under Order 41 of the Code of Civil Procedure an appellate court bad only to decide whether the decision arrived at by the court of the first instance was correct or not on facts and law, while disposing of a criminal appeal under Section 423, Cr.P.C. the High Court 'had to satisfy itself as to whether a case beyond reasonable doubt had been made out against the accused. In fact, the proceedings before the High Court are a reappraisal and reassessment of the entire facts and law in order that the High Court should be satisfied on the materials about the guilt or innocence of the accused persons. It is the duty of the High Court to consider the proceedings in all their aspects and come to an independent conclusion of its own. Therefore, there seems to be no reason why the protection granted to an accused to be defended by a legal (practitioner of his choice should be confined to the trial stage and not embrace the hearing of the appeal. The safeguard in Article 22 (1) of the Constitution must extend to the appellate court as well. An accused person has a right to be defended by a legal practitioner of his choice not only at the trial but at the hearing of the appeal by the Court, We find no reason to give a restricted interpretation to Article 22 (1) of the Constitution. In State of Madhya Pradesh v. Shobharam the Supreme Court held by the majority (Bachawat, Shelat and Hidayatullah, JJ. concurring, Sarkar Section 4 and Mudholkar, J. dissenting) as follows:

We find no warrant for giving a restricted interpretation to the second part of the Clause (Article 22 (1)) by reference to Article 21 and for saying that the right to be defended by counsel is limited to a trial in which the arrested person is in jeopardy of being sentenced to death or to a term of imprisonment.

8. The rule incorporated in Section 423 of the Code of Criminal Procedure is really founded on a principle of natural justice. It is an embodiment of the legal maxim 'Audi alteram partem' i.e. no man shall be condemned unheard. This maxim derives its origin from the Senecan saying

Whoever may have decided anything, the other side remaining unheard, granted that his decision may have been just, will not have been just himself.

Pohpi 13 All 171. 175.

The essential requirements of the term natural justice are:

(1) The Tribunal should be impartial have no personal interest in the controversy.

(2) It should give ia full and fair opportunity to every party of being heard.

(3) It should act in good faith.

(4) It should not do anything contrary to the essence of justice.

9. Finally the very important rule of natural justice is that justice not only be done but should be seen to be done. See S. T. Co. Ltd. v. Appellate Authority AIR 1956 Nag 235. An order prejudicial to a party and passed in violation of the (principles of natural justice can be treated as void or non est. It is a nullity. See A. V. Venkateshwaran v. R. S. Wadhwani . 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 a nullity.

10. The real question which (presents itself for determination in this case is whether the appeal of the present applicants was disposed of by the High Court without hearing the pleader of the applicants' choice or whether there was any violation of any rule of law or principles of natural justice. In our opinion on the facts of this case the answer must be in the negative. All the requirements of law were fully complied with before the appeal was heard. Section 422, Cr.P.C. enjoins that the appellate court shall cause a notice to be given to the appellant or his (pleader of the time and place at which such appeal will be heard. This section does not speak of the notice 'being served on the accused'. It states that notice is to be given to him or his pleader. So where the accused appears through his Advocate no question of service of notice on the accused1 himself arises. See Mohd. Dastagir v. State of Madras AIR 1960 SC 756 : 1960 Cri LJ 1159. The record of the case shows that the applicants' counsel Sri Sudhir Chandra Varma through whom the memo of appeal had1 been presented had full notice of the date of hearing of the appeal. The order sheet maintained in the criminal appeal reveals that on 17-5-1973 the appeal was listed in the cause list for 'hearing but it was adjourned on account of the illness slip of the counsel Sri Sudhir Chandra Varma. Similar adjournment was made for the same reason on 1S-5-1973 when the case again appeared in the cause list for hearing. On 21-5-1973 the case was passed over presumably at the request and mention on behalf of Sri Sudhir Chandra Varma. On 22-5-1973 again it was passed over on account of the illness slip of Sri Varma. On 23-5-1973 it was again adjourned. On 24-5-1973 the hearing of the appeal commenced, Sri Sudhir Chandra Varma appeared for the applicants and was heard and the case remained part-heard. On 25-5-1973 the appeal was heard again and after hearing Sri Varma it was dismissed on merits. On these facts it cannot be said that notice of the hearing of the appeal in terms of Section 422 of the Code of Criminal Procedure was not given to the applicants or their (pleader. The same principle is embodied in Chapter XVIII, Rule 22 of the Rules of Court framed by the High Court, Allahabad The said rule provides:

22. Notice in different classes of cases shall, unless otherwise ordered, be issued as indicated below, namely-

(1) Appeal - Where an appeal has not been dismissed summarily notice of the time and place at which such appeal will be heard shall be given to....

(i) the appellant or his Advocate, or, where the State is the appellant, to the Government Advocate, and

(ii) Where the State is not the appellant, to the Government Advocate, and, where the State is the appellant, to the respondent as also to the court appealed from.

According to a well-established practice of the High Court the Rules of Court have dispensed with the general practice of issuing notice under Section 422 of the Code of Criminal Procedure to individual counsel and notice is given to the pleaders of the appellant by publishing a cause list in which the names of the parties and the names of the counsel representing the parties are printed. Rule 5. Chapter VI of the Rules of Court says:

5. Subject to the directions of the Chief Justice, the Registrar shall cause to be (published from time to time a list of all cases ready end likely to be put up for hearing.

Rule 6 reads:

6. The Registrar shall, subject to such directions as the Chief Justice may give from time to time, cause to be prepared a Cause List for each day on which the Court sits containing lists of cases which may be heard by the different Benches of the Court. The list shall also state the hour at which and' the room in which each Bench shall sit.

Rule 9 runs as under:

9. If on the day fixed for the hearing of any case or other matter, it appears that the requisite notices have been duly served such case or other matter may be disposed of by the Court on that day. But if it is not deposed of on that day no further notice of the date of hearing other than an entry in the Cause List of the day on which it is to be heard, shall be necessary.

11. Thus sufficient notice of the hearing of appeal ,as required by law was given to the applicants' pleader.

12. The next ,point which has been urged on behalf of the applicants was that Sri Sudhir Chandra Varma was not a legal ,practitioner of their choice as envisaged by Article 22 (1) of the Constitution. This contention is untenable. What as guaranteed to an accused person under the constitution is 'a legal practitioner of his choice'. It is not the purpose of the guarantee that a litigant must secure _ galaxy of legal talents and should any one of that veritable team be omitted from appearance, Article 22 (1) is infringed. The plurality of pleaders engaged1 by a litigant does not imply exclusion of any of them, and unless disengaged or instructions withdrawn from him. each one of such pleaders should be deemed to be a pleader of his choice and competent to represent him. Therefore, it is the duty of a litigant who has engaged a number of Lawyers, if he desires his case to be .argued or conducted by any one of them .particularly, to take suitable steps to apprise the Court of his exclusive choice. If he fails to do so the Court is under no obligation to give notice of the hearing of the case to each one of his pleaders. Notice to any one of them is a notice to pleader of his choice. It is true that even while retaining his pleaders it is open to a litigant either personally or through one of his pleaders to inform the Court as to the particular counsel by whom he would like to have his case argued or conducted. Normally the senior counsel has the right of pre-audience as provided under Section 23 (5) (ii) of the Advocates Act but on instructions of the client or otherwise his counsel can inter se agree upon a different choice. Where, however, the litigant has failed to take any such action the Court is absolved of the duty of giving notice of the case to every one of his numerous counsel. As for the Court its duty is fully discharged when it has given notice to any of such counsel who has not forfeited the right to represent his client or whose disability or disengagement has not been communicated to the Court. A contrary .procedure will make the proceedings in Court uncertain and erratic and dependent upon the whim and fancies of a fickle-minded or ill-advised client. The admitted facts of the case are that the applicants did not take any step towards informing the office of the High Court or the Court at the time of the hearing of the appeal that they had withdrawn instructions from Sri Sudhir Chandra Varma and had given instructions exclusively to Sri Rajesh Ji yarma to argue the appeal on their be- half. In these circumstances we cannot resist the conclusion that there was in fact no denial of the proper and effective representation of the accused by a pleader of their choice. The mere filing of the appearance slip by Sri Rajesh Ji Varma. Advocate subsequently did not make him exclusively the pleader of the applicants' choice or oust the previous counsel, Sri Sudhir Chandra Varma. If this were not so, it would be impossible for the Court to ascertain who is the pleader of the choice of the applicants. Once a pleader files the memo of .appeal his power to act on behalf of his client continues until terminated. In fact, it was held in a Full Bench decision of this Court in Ali Mohd1. v. An Advocate that even if a counsel had no instructions in the sense that he had not received his fee it was his duty to assist the Court and act for his client. Mootham, Section 4 speaking for the Court observed in that case as follows:

Now the law I take to be clear. An Advocate who accepts instructions to act for a client is bound to do so even if he has not received his fee, wholly or in part, unless the client terminates the contract or the latter contains a provision that the Advocate is under no obligation to act unless his fee (or a stated part of it) is first paid to him; and where it is not in dispute that the Advocate was engaged by the client, the burden of proving that special provision lies on the Advocate.

It is apparent that the applicants neither informed their previous counsel Sri Sudhir Chandra Varma nor the Court that his engagement had been terminated or that he had no instructions to argue the appeal. On the other hand, the record of the case indicates that Sri Sudhir Chandra Varma acted throughout in the belief that he had instructions on behalf of his clients. He actually obtained adjournments on a number of dates and finally argued the appeal. He did not report 'no instructions' at any stage. If the office of the High Court by inadvertence omitted to print the name in the cause list of a counsel engaged later but printed the name of the pleader who filed the appeal, from whom instructions were never withdrawn and who was never disengaged nor was it ever communicated to the office of the Court that instructions had been withdrawn from him, no provision in the Rules of Court was contravened, nor could in our opinion that be said to involve an infringement of the relevant provisions of the Code of Criminal Procedure, either literally or in spirit. If the name of any of the several counsel engaged by an appellant appears in the cause list, and he is not a counsel who had been formally disengaged or otherwise instructions withdrawn from him and that fact communicated to the office or the Court, it will be deemed to be sufficient notice to the appellant or his pleader within the meaning of Section 422 of the Code of Criminal Procedure. If such counsel appears and1 is heard, the provisions of Section 423 Code of Criminal Procedure are fully complied with. This also satisfies the requirements of Article 22 (1) of the Constitution because, as we have already observed, such counsel will be deemed in law to be a [pleader of his choice and the accused person will be deemed to be 'defended by a legal practitioner of his choice'. This does not involve breach of any of the principles of natural justice to which we have already adverted. This is also in conformity with Rule 22 of Chapter XVIII of the Rules of Court which requires notice of the hearing of the appeal to be given to 'the appellant or his Advocate'. It is a salutary practice to print the names of all the pleaders in the cause list of the day but the omission to mention the name of any or some of them would not be in violation of any principle of law or natural justice. So long as the name of any one of the pleaders representing the appellant appears in the cause list the requirements of law are fulfilled.

13. Sri Rajesh Ji Varma relied on an unreported decision of the Supreme Court in Jagannath Singh v. Dr. Ram Naresh Singh which arose out of two criminal appeals decided by the Allahabad High Court. The facts of that case are entirely different from the one before us. In that case the appellants had been convicted by the High Court for contempt of court without hearing their counsel. The appellants were represented by only one counsel and his name was wrongly printed in the cause list with the result that he missed the case and did not appear to argue the same. In these circumstances Hidaya-tuillah, Section 4 expressed the opinion:

The omission to mention the case correctly in the cause lists was a mistake of the court itself end some indulgence was. therefore, to be shown to the party who had been misled by this erroneous entry.

Consequently, the case was remitted to the High Court for being dealt with in accordance with law. In the instant case the name of the applicants' counsel who had filed the memo of appeal was mentioned in the cause list. He actually argued the appeal and was heard.

14. Sri Rajesh Ji Varma also referred to Swarth Mahto v. Dharmdeo but the facts of that case were also entirely different from those of the case in hand. In that case the cause list of the day of hearing contained only the number of the appeal which was directed against acquittal but not the names of the accused ,and Ms Advocate with the result that the accused respondent was convicted without hearing his counsel. On these facts it was held that the respondent's Advocate could not be said to be posted with the notice of hearing and it was held that the application for rehearing of the appeal deserved to be allowed. It may also be noticed that in that case the Supreme Court had been approached through special leave and no question of the exercise of powers under Section 561-A of the Code of Criminal Procedure arose. Moreover, on facts the present case is entirely dissimilar. Here the names of the applicants, the name of their counsel who filed the appeal, the number of the appeal and its full particulars were printed in the cause list on the day of hearing. Therefore, the applicants cannot derive any assistance from that ruling.

15. We are unable to accept the applicants' contention that the defence of accused appellant starts only when notice under Section 422, Cr, P. C, is issued to his pleader and all the prior proceedings, namely, filing of the appeal and securing a bail for the appellants are not part of the defence of the appellant. It was contended that the occasion for allowing the accused person to be defended by a pleader of his choice arose only at the time of final Shearing i.e. after notice under Section 422, Code of Criminal Procedure. In our opinion the defence is qua charge and it commences right from the moment the memo of appeal is filed through a pleader, because by the filing of the appeal the judgment of the trial court 'is put in jeopardy and the matter becomes subjudice. We have already pointed out that a criminal appeal1 presented under Section 419, Cr.P.C. cannot be even summarily dismissed; under Section 421 of the Code unless the appellant or his pleader has had a reasonable opportunity of toeing heard in support of the same. Therefore, it is not right to contend that the defence starts only when the case is posted for final hearing after notice to the appellant or has pleader under Section 422. Cr.P.C.

16. There is no force in the argument raised on behalf of the applicants that when an appellant subsequently engages & more senior or eminent counsel who has a right of pre-audience under Section 23 (5) (ii) of the Advocates Act, the appellant is entitled to be defended by him alone or that he alone should be heard on his behalf and, therefore, it is mandatory to give notice to him. Section 23 of the Advocates Act merely determines the rights of advocates 'inter se' to the pre-audience of the court on the basis of seniority. That 'is a matter to be settled among Advocates themselves and in case of a dispute seniority shall confer the right of pre-audience but the section does not impose any bar on a junior Advocate in the matter of conducting the case when no other Advocate is present on behalf of the client.

17. We are also not satisfied; that this is a fit case for invoking the inherent powers of the High Court. We have held that in a suitable case a judgment tendered in a criminal appeal can be reviewed and relief granted under Section 561-A Cr.P.C. but that is a power to be exercised only in exceptional circumstances and as held in the Full Bench case of Mahesh v. State, 1971 All LJ 668 : 1971 Cri LJ 1674 (supra) where the 'basic foundation of the judgment is removed and only for one of the three purposes, namely to give effect to any order passed under the Code of Criminal Procedure, or to prevent the abuse of the process of any Court or otherwise to secure the ends of justice. On the facts of the case in hand it is not possible to hold that any of these three grounds has been established. There was no abuse of the process of the Court, no violation of law or the principles of natural justice. As was observed by Chaturvedi, J. in :

Generally, it may be stated1 that powers under Section 561-A to rehear a case can only be exercised where the facts of the case are shocking to the conscience.' It is the conscience of the Court which matters and not the cynical reaction of a disgruntled litigant obsessed by the righteousness of his own cause. As was held in 1971 All LJ 668 - 1971 Cri LJ 1674 (supra) the Court could interfere with and' set aside its judgment or order when its conscience was shocked and' not that of the litigant. To borrow the phraseology of Beg, J..

An unsuccessful litigant is apt to mistake the shock of his failure for a genuine shock to his conscience and to wrongly .assume that the conscience of everybody will be or should be equally shocked by it.

18. In our opinion, therefore, there is no justification for holding that an order should be recalled invariably in cases in which the name of another counsel has not been printed in the cause list. We are also of the view that on the facts of this case the judgment of Hon'ble Mr. Justice H. N. Kapur in Criminal Appeal No. 2849 of 1970 was perfectly valid and no ground has 'been made out by the ap- plicants for recalling the same in the exercise of the inherent powers of the Court.

19. This application made under Section 561-A of the Code of Criminal Procedure has no merits and is accordingly dismissed.


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