V.S. DAVE, J.—This Larger Bench has been constituted by the orders of the Chief Justice, dated July 3, 1986 to answer a question referred to Larger Bench by our brother Honble G.K. Sharma J. vide his order of reference dated may 28, 1986 wherin he has framed the following question :

"Whether the judgment given in absence of the appellant or his counsel but the case decided on merits, can be re-called by the court in its inherent powers under S. 482 Cr.P.C. "

2. The petitioner, Habu, had filed a revision petition in this court in the year 1978 challenging his conviction and sentence. This revision petition was admitted on October 25, 1978 and was ordered to be heard in due course on may 26, 1979. Thereafter it came up for hearing on January 11, 1985 before Honble Sharma J. The accused petitioner who was on bail neither appeared in person nor his counsel was persent and Honble Sharma J. after hearing the learned Public Prosecutor dismissed the revision-petition on merits. The petitioner thereafter moved an application on March 14, 1986 under S. 482 Cr.P.C. wherein it was prayed by him that he had engaged a lawyer Shri Manak Chand Jain who did not inform him of the date of hearing and as such he himself also did not appear and made arguments on his behalf. It was a surprise to him when a warrant of arrest came and he was arrested, then he earned that his revision petition has been dismissed. He wrote a letter to his counsel but failed to get any reply; hence he engaged another lawyer to find out the position and moved this application after more then a year of the passing of the judgment. This application was heard by Honble Sharma J. who passed the order of reference. He stated in his judgment, "the case of Dhanna and others decided by Honble Bhargava J. (C.B.) has been referred by Honble G.M. Lodha J. and he has tried to distinguish it. This case is identical to the present case and I perfectly agree with the principle laid down by Honble Bhargava J. but Honble Lodha J. (G. M.) in Jacobs case had different view, not agreeing with the views of Honble Bhargava J. in. case of Dhanna and another Vs. State.

3. Before the reference came up for hearing we thought it proper to issue a general notice inviting assistance of learned members of the Bar to assist us as interveners because in our opinion the matter was of general interest and importance. Several counsel whose names have been mentioned above intervened and addressed us.

4. Shri Satish Chandra who was counsel in C. Jacobs case decided by Honble Lodha G.M. J. to which reference has been made by Honble Sharma J. in his order of reference, raised preliminary objections and submitted that the order of reference itself is bad and there is no necessity to answer the question referred to the Full Bench. His submission is that Honble G.K. Sharma J. in his order of reference has already agreed with the principle laid down by Honble Bhargava J. and has further held that "in the present case the revision petition was, no doubt, disposed of with the assistance of the learned Public Prosecutor, but keeping in view that more assistance would have been given by the learned counsel for the petitioner also. I am of the opinion that in view of Shaukin Singhs case the petition under Sec. 482 Cr.P.C. can be accepted" Thus, when he has already arrived at a conclusion and has agreed with the view taken by Honble Bhargava J. and also has arrived at a finding in view of the decision of their Lordships of the Supreme Court in Shaukin Singhs case there could not have been any reference as there is a definite expression of opinion. He submits that once a court arrives at a conclusion that the petition under S. 482 Cr.P.C. can be accepted in view of decision in Shaukin Singh Vs. State of Uttar Pradesh, (1) no jurisdiction vested in him to refer the matter to a larger Bench, It is further submitted that the reference is wholly uncalled for as he has arrived at further finding that the case of Dhanna Vs. State

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