Judgement

PALEKAR, J.:- This is an appeal by special leave. The appellants who were accused Nos. 1 and 3 respectively were acquitted by the learned Munsif Magistrate 1st Class, Aurangabad on March 19, 1966. The case against them had been started on a compliant filed by the respondent for an offence under S. 420 of the Indian Penal Code. Aggrieved by the acquittal, the respondent filed an appeal under S. 417 (3) of the Code of Criminal Procedure and the same was registered as Criminal Appeal No. 52 of 1966 in the Patna High Court. The order-sheet shows that notice was issued to the appellants on July 5, 1966. In pursuance of the notice, the appellants appeared in the case on July 28, 1966 through Shri Kedar Nath Verma, Advocate. By some mistake, neither the name of the appellants nor of their advocate Shri Kedar Nath Verma appeared in the cause list, and the case was heard in their absence on December 16 and 17, 1968. The appeal was allowed and the appellants were convicted of the offence under Section 420 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two months and to pay a fine of Rupees 500/- each. The appellants came to know of this order subsequently. On January 7, 1969 an application was made to the Court for rehearing the appeal, in the presence of the appellants. That application was dismissed on January 24, 1969, the Court holding that no opportunity had been denied to the appellants of being heard.

2. The only question before us is whether a reasonable opportunity had been given to the appellants of being heard before the order of acquittal was converted into one of conviction. The appellants have also challenged their conviction but, on the view we are taking on the above question, we do not think that we should enter into the merits of the case.

3. As already stated, notice was issued to the appellants on July 5, 1966. The case came on for hearing on December 4, 1968. The cause list for that date no doubt shows that Criminal Appeal No. 52 of 1966 was on the board; but neither the names of the appellants nor of their advocate, was mentioned in the cause list. On that day, the case was not heard. It came on board on December 11, 1968, but an order was made that it will not be taken up for hearing during that week. Then, it came on board on December 16, 1968. But the same mistake of not showing in the cause list either the name of the appellants or of their advocate was repeated. The learned Judge heard the appeal on that day and the next day and delivered judgment immediately convicting the appellants.

4. It is clear from the record that the appellants or their advocate was not heard. Though Criminal Appeal No. 52 of 1966 was duly shown in the cause list on December 16, 1968, the cause list had failed to show either the name of the appellants or their advocate. When an advocate examines the cause list he is generally not guided by the number of the case but by his name appearing against the case. Therefore when Shri Kedar Nath Verma or his clerk examined the cause list, they must not have noticed that the case is on board either on December 4, 1968 or December 16, 1968. In a case of this type which had been filed in Court in 1966 and came up for hearing two and half years later, it will be wrong to post the advocate with notice when the cause list is improperly published. If the name of the advocate who appears in the case is not shown, there would be good reason to think that he had no notice of the case being posted for hearing. Therefore when an application is later made by the parties who were not heard, it would be an exercise of sound discretion if an opportunity is given to the party who is not heard.

5. The appellants came to know from rumours in the village, apparently traceable to the respondent, that the case had been heard and they had been convicted. So on January 7, 1969, they approached the Court by an application complaining that the case was heard in their absence. They allege