1. Applicant Bashir Ahmad, While working as clerk in the office of Assistant Commissioner, Tehsil Samba was trapped and caught red handed while accepting the money as illegal gratification. The investigations culminating in sending up accused for trial on charge under section 5(2) read 5(1) (d) of the prevention of Corruption Act 2006. The trial ended in conviction and sentence of the accused for one year and fine of Rs. 200/- under section 5(2) read with 5(1) (d) prevention of Corruption Act 2006. Accused filed an acquittal appeal on 30-12-1977 in the High Court. For failure of appearance and prosecution by petitioner or/ and his counsel the appeal was dismissed on merits and the order of conviction and sentence maintained. This happened on 4/4/2001.

2. Accused/appellant has moved this motion for recalling the judgment and order dated 4/4/2001. The question raised here is whether in the facts and circumstances of the case, the judgment and order of dismissal of Appeal dated 4/42001 can be reviewed, so as to be held as an error apparent on face of record/correcting clerical error or by resorting to inherent powers under section 561-A Cr.P.C to allow rehaearing of appeal.

3. The counsel for the accused, review petitioner submits that the accused aplicant was never informed of hearing date(s) after this criminal acquittal apeal was transferred to Srinagar Wing of the High Court, notwithstanding his act of engaging Mr ZA Shah as his counsel to prosecute the Appeal. The accused™s appellant™s failure to appear made court to issue warrants against him and without waiting further for service of warrants, the case was taken for hearing and disposed of. As he was out of station in connection with his business, therefore he did not know any thing even about issuance of warrants against him on previous dates. The accused appellant could not appear before the Court althrough, as he was away in connection with his business and had no knowledge about the proceedings and dates. The appeal has been decided at the back of the petitioner and without any notice to him. He has not been given an opportunity of being heard. The matter could not have been disposed of in absence of the appellant or his counsel, having regard to the dictum of law laid down by the Apex court. It was obligatory upon the court to appoint a counsel at State expenses to argue the matter on behalf of the appellant accused. The impugned order does not show that the record has been perused and the case has been decided on merits, as the appeal could not have been disposed of in default and in any case without spelling the reasons and discussing merits of the case.

4. The counsel for respondents State Mr M.H Attar, AAG submits that as the accused appellant failed to appear in the case for very long priod spreading over two decade and his failure to address/argue before the court despite repeated opportunities to accused-appellant, the matter was heard. The appellant- accused by his own admission was represented by Mr. Z.A Shah, a senior Advocate, who even did not appear to take up his case at the last moment. The matter could not have been made to linger on any further. The appeal record including record of the trial court has been thoroughly examined and perused by court, as would even appear from the judgment. The possible defence put forth in the memo of appeal has been dealt with analysed and discussed on merits. The evidence has been analysed, evaluated discussed and re-appreciated. The entire case is given look and considered. The appeal has been dismissed on merits. Therefore, it cannot be said that the case has been disposed of in routine for default or for just non-appearance of petitioner/ appellant. The appellate court in exercise of powers under section 423 Cr.P.C upon hearing respondent State upheld the conviction and sentence. No review is competent against such decision of appellate Court. Under the garb of re-admittance of appeal, further hearing cannot be given u

Click Here to Read the rest of this document