The absence of a right of hearing for a respondent at the stage of grant of leave or special leave, and the discretion of the High Court to issue a warrant for arrest of the accused in an appeal from acquittal.

1. The submissions of the learned counsel for the parties have been heard. The facts of these three applications are more or less similar. Hence, for the sake of convenience, I am referring to the facts in Criminal Application No.1170 of 2008. The applicants are the accused in a complaint filed by the first respondent alleging commission of offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the said Act of 1881"). The learned Magistrate acquitted the applicants in this application. The first respondent filed Criminal Application no.2081 of 2008 in this Court invoking sub section 4 of section 378 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "the said Code of 1973"). The said application was heard on 28th July 2008. This Court granted leave and admitted the appeal. This Court directed that an action be taken under section 390 of the said Code of 1973. The prayer in this application is for recall of the said order dated 28th July 2008 and for a direction to place the application for leave for re-hearing. As the learned Judge who passed the order dated 28th July 2008 is not available at Mumbai, by administrative order dated 26th November 2008, these applications were ordered to be placed before the regular Court.

2. The learned counsel for the applicant submitted that a special leave under sub section 4 of section 378 of the said Code of 1973 cannot be granted without giving an opportunity of being heard to the accused. His submission is that grant of leave results in admission of the appeal against acquittal which is invariably followed by an action under section 390 of the said Code of 1973. He submitted that by grant of leave and admission of an appeal against acquittal, the rights of the accused are vitally affected and, therefore, it was necessary for this Court to have issued a notice to the applicants before granting the leave.

3. He submitted that the Apex Court has repeatedly held that when an authority takes an action by which rights of an individual are affected, the principles of natural justice will have to be read in the statutory provisions. He submitted that the Apex Court has now held that the principle of natural justice "audi alteram partem" apply even to the administrative orders having the civil consequences. He placed reliance on decisions of the Apex Court in the case of Canara Bank vs. V.K.Awasthy ([2005]6-SCC-321), Rajesh

Kumar and others vs. Dy.Cit and others ([2007]2-SCC-181 and the State of Maharashtra and others Vs. Jalgaon Municipal Council and others ([2003]9-SCC-731) on this aspect. He submitted that as the rule of "audi alteram partem" has to be read in the statute under which a quasi judicial authority or an administrative authority passes an order involving civil consequences, surely the said rule will have to be read in sub section 4 of section 378 of the said Code of 1973 while this Court exercises the power of grant of special leave. He submitted that section 378 itself makes a distinction between a leave which is granted in an appeal preferred by the State and a special leave which is required to be granted for preferring an appeal against the acquittal by a complainant in a private complaint.

4. He invited my attention to the provisions of section 473 of the said Code of 1973 which confers power on the Court to extend the period of limitation. He submitted that the Apex Court in the case of State of Maharashtra vs. Sharadchandra Vinayak Dongre and others ([1995]1-SCC-42) has held that the principles of audi alteram partem will have to be read in the said provision. He also placed reliance on the decision of the Apex Court in the case of Mangilal vs. State of M.P. ([2004]2-SCC-447).

5. Lastly he submitted that this Court could not have passed an order directing an action under section 390 of the said Code of 1973. He submitted that it is not mandatory in every case where special leave or leave has been granted under sect