The main legal point established in the judgment is that an order passed on merits after hearing both parties cannot be recalled under Section 362 Cr.P.C.

Heard learned counsel for the applicant, learned A.G.A. and perused the record.

2. This application for recall of order dated 1.2.2002 has been moved with the prayer to condone the delay and set-aside the order dated 1.2.2002. The delay is condoned.

3. The grounds taken in the application are that the applicant has engaged Sri M.P. Singh, Advocate, who had filed this Revision No.814 of 1986 on 27.5.1986, pursuant to which the applicant was released on bail on 28.5.1986. Later on Sri M.P. Singh was elevated to the Bench so Sri Shashi Nandan, Advocate filed his Parcha on 9.11.1987. The lower court record was summoned but the same was not received. Sri Ashok Kumar Srivastava was never engaged by the applicant, who had argued the said case and Sri Shashi Nandan or Sri Ashok Kumar Srivastava never intimated about the hearing of the case and ultimately when the execution warrant was issued on 26.6.2003, then the applicant came to know about dismissal of the said revision for the first time and came at Allahabad on 1.7.2003 and engaged Sri R.P. Tripathi, Advocate to file present recall application. Although other grounds have also been taken regarding merits of order dated 1.2.2002 and various amendments to the Uttar Pradesh Foodgrains Dealers' (Licensing and Restriction on Hoarding) Order, 1976 have been narrated so as to justify that the applicant has not committed any offence. It has also been mentioned in para 14 of the application that impugned order dated 1.2.2002 is ex-parte without giving any opportunity to the revisionist.

4. Learned A.G.A. has defended the impugned order and has submitted that the said order has been passed by this Court on merits after hearing both the parties.

5. The main question for consideration is whether this impugned order dated 1.2.2002 is ex-parte without giving any opportunity to the revisionist and whether the applicant has engaged Sri Shashi Nandan, Advocate or not. Another question for consideration is whether Sri Shashi Nandan authorised Sri Ashok Kumar Srivastava, Advocate as brief holder to argue the case or not.

6. The Criminal Revision No.814 of 1986 "Hari Prakash Vs. State of U.P." was decided by Hon'ble Mr. Justice U.S. Tripathi by order dated 1.2.2002. In the said judgment which is detailed and is running in five pages, it has been specifically mentioned that Sri Ashok Kumar Srivastava holding brief of Sri Shashi Nandan, learned counsel for the applicant has been heard. The Hon'ble Judge has also considered the points raised by learned counsel for the revisionist and has given decision on them. The said order dated 1.2.2002 is an order on merits passed after hearing both the parties and every aspect has been considered in detail, therefore, the said order cannot be said to be ex-parte order.

7. Upon the Recall Application dated 2.7.2003, the Hon'ble Judge, who decided the revision on merits, passed the following order on 11.7.2003:-

"As per assertion in para 10 of the accompanying affidavit, the applicant has not engaged Mr. Shashi Nandan as well as Sri Ashok Kumar as brief holder of Sri Shashi Nandan as his counsel and they had no right to argue the case on behalf of applicant. Let notices be issued to Sri Shashi Nandan and Sri Ashok Kumar along with copy of the affidavit to file reply under what authority they had argued the revision on behalf of the applicant. Steps be taken within three days."

8. Pursuant to this order, Sri Shashi Nandan, Advocate along with his junior Sri Ashok Kumar Srivastava appeared on 25.7.2003 and Sri Shashi Nandan, learned Senior Advocate stated that he was engaged in the case on behalf of the applicant and he has authorised his junior Sri Ashok Kumar Srivastava to argue this case. Learned counsel for the applicant was given time to show the Rule of the Court on the point whether an Advocate duly engaged by applicant is not authorised to hand over brief to his brief holder but no such Rule was shown. Part-VI-Chapter XXIV of the Allahabad High