( 1 ) THIS is an application moved on behalf of Smt. Pratibha Saxena for recalling the order dated 6/4/2006 passed by me in Criminal Misc. Restoration Application no. 55171 of 2006 and the order dated 17/2/2006 passed in Crl. Misc. Recall application No. 155441 of 2005 and the order dated 27/7/2005 passed in Crl. Misc. Transfer application No. 165 of 2005, Hari prakash Saxena v. Smt. Pratibha Saxena.

( 2 ) THE facts relevant for disposal of the present application are that Hari Prakash saxena had filed Transfer Application No. 165 of 2005 in this Court for transfer of Misc. Case No. 840 of 2003 and Misc. Case No. 1025 of 2003 arising out of case No. 1050 of 1998, Pratibha Saxena v. Hari Prakash saxena pending in the Court of Chief judicial Magistrate, Shahjahanpur to any Court outside Shahjahanpur.

( 3 ) SINCE none was present for Smt. Pratibha Saxena on the date of hearing of this application, it was allowed by me ex parte vide order dated 27-7-2005 and the aforesaid cases were ordered to be transferred to the Court of the Chief Judicial magistrate, Bareilly. Aggrieved with the above ex parte order Smt. Pratibha Saxena filed an application for recall of the above order which was registered as Crl. Misc. Recall Application No. 155441 of 2005. This application was dismissed in default of the applicant on 17-2-2006. Then the applicant moved another application for recall which was registered as Crl. Misc. Recall Application no. 55171 of 2006. This application was rejected after hearing both the parties on the ground that no proper affidavit was filed in support of the application vide order dated 6-4-2006. Thereafter the applicant moved the present application filing proper affidavit in support of the application. However, the application was contested by the opposite party on the ground that there was no provision for recall of the order passed in a transfer application.

( 4 ) BOTH the parties were heard at length by me on the above point and they cited several rulings before me in support of their contentions. I now proceed to deal with all those rulings.

( 5 ) THE learned counsel for the applicant cited before me a ruling of this Court in mohammad Mian v. State of U. P. 1981 A cr R 292. This was a case of criminal appeal filed by the accused against his conviction order. Since none appeared on behalf of the appellant on the date fixed for its hearing, the appeal was taken up and decided without hearing any one for the appellant. Thereafter an application was moved for recalling the above order. That application was allowed by the Court. It may be mentioned that there is no controversy on this point that a criminal appeal filed against conviction order cannot be decided without hearing either the appellant in person or his counsel. An order passed in a criminal appeal without hearing the appellant is bad in law and such an order was liable to be set aside. It was rightly set aside in the above case.

( 6 ) THE learned counsel for the applicant also cited before me a Full Bench ruling of rajasthan High Court in habu v. State of rajasthan AIR 1987 Rajasthan 83. This was a case of revision which had been filed by the accused against his conviction order and on the date fixed for its hearing, since neither revisionist nor his counsel was present, the revision was dismissed on merits. Thereafter when the accused was arrested after disposal of the revision, he moved an application for setting aside the above order and that application was allowed. It may be mentioned that a criminal revision filed by the accused against conviction order cannot be heard and decided without hearing the revisionist or his counsel. As such the order passed in this case also without hearing the revisionist and his counsel was bad in law and it was rightly set aside.

( 7 ) IT may be mentioned that in the cases of criminal appeals and revisions against conviction order the Court has got no jurisdiction to decide appeals or revisions without hearing the coun

Click Here to Read the rest of this document