A criminal revision cannot be dismissed for non-prosecution and must be decided on merits.

JUDGMENT :

Ravindra Maithani, J.

The present revision has already been decided on 13.02.2023. Now, a Recall Application No. 3508 of 2023 has been filed by the revisionist.

2. Heard learned counsel for the parties and perused the record.

3. Learned counsel for the revisionist would submit that on the date of hearing, learned counsel for the revisionist could not appear due to some personal reasons as he was to attend the cremation of his cousin. A litigant should not suffer due to any act or omission of his counsel, therefore, the order deserves to be recalled. It is also submitted that thematter may be heard and the order may be passed thereafter. Learned counsel would also submit that in the process of filing the recall application, there is seven days’ delay, which is bona fide.

4. Having heard, the Delay Condonation Application No. 3509 of 2023 is allowed. Delay in filing the recall application is condoned.

5. In support of his contention, learned counsel for the revisionist has placed reliance on the principle of law, as laid down by the Hon’ble Supreme Court, in the case of K.S. Panduranga vs. State of Karnataka, (2013) 3 SCC 721 and Christopher Raj Vs. K. Vijayakumar, (2019) 7 SCC 398.

6. In the case of K.S. Panduranga (supra), learned counsel has referred to paras 26 and 32 of the judgment, which are as hereunder:-

“26. Regard being had to the principles pertaining to binding precedent, there is no trace of doubt that the principle laid down in Mohd. Sukur Ali [(2011) 4 SCC 729 : (2011) 2 SCC (Cri) 481] by the learned Judges that the court should not decide a criminal case in the absence of the counsel of the accused as an accused in a criminal case should not suffer for the fault of his counsel and the court should, in such a situation, must appoint another counsel as amicus curiae to defend the accused and further if the counsel does not appear deliberately, even then the court should not decide the appeal on merit is not in accord with the pronouncement by the larger Bench in Bani Singh [(1996) 4 SCC 720 : 1996 SCC (Cri) 848 : AIR 1996 SC 2439]. It, in fact, is in direct conflict with the ratio laid down in Bani Singh [(1996) 4 SCC 720 : 1996 SCC (Cri) 848 : AIR 1996 SC 2439] . As far as the observation to the effect that the court should have appointed amicus curiae, is in a different realm. It is one thing to say that the court should have appointed an amicus curiae and it is another thing to say that the court cannot decide a criminal appeal in the absence of a counsel for the accused and that too even if he deliberately does not appear or shows a negligent attitude in putting his appearance to argue the matter. With great respect, we are disposed to think, had the decision in Bani Singh [(1996) 4 SCC 720 : 1996 SCC (Cri) 848 : AIR 1996 SC 2439] been brought to the notice of the learned Judges, the view would have been different.

32. In view of the aforesaid annunciation of law, it can safely be concluded that the dictum in Mohd. Sukur Ali [(2011) 4 SCC 729 : (2011) 2 SCC (Cri) 481] to the effect that the court cannot decide a criminal appeal in the absence of the counsel for the accused and that too if the counsel does not appear deliberately or shows negligence in appearing, being contrary to the ratio laid down by the larger Bench in Bani Singh [(1996) 4 SCC 720 : 1996 SCC (Cri) 848 : AIR 1996 SC 2439], is per incuriam. We may hasten to clarify that barring the said aspect, we do not intend to say anything on the said judgment as far as engagement of amicus curiae or the decision rendered regard being had to the obtaining factual matrix therein or the role of the Bar Association or the lawyers. Thus, the contention of the learned counsel for the appellant that the High Court should not have decided the appeal on its merits without the presence of the counsel does not deserve acceptance. That apart, it is noticeable that after the judgment was dictated in open court, the counsel appeared and he was allowed to put forth h