Ashok Kumar Avrol vs Union of India

Sudhir Kumar Saxena, J.—A Criminal Miscellaneous Application No. 92202 of 2011 has been moved for recalling the Order dated 29-7-2003 passed by Hon''ble Mr. Justice N.K. Mehrotra dismissing Criminal Miscellaneous Case No. 380 of 1994 in the absence of the counsel. Another Criminal Miscellaneous Application No. 108015 of 2011 has been filed for condoning the delay in moving the aforesaid application. I have heard Sri Amarjeet Rakhra, learned counsel for applicant and Sri Dipak Seth, learned counsel for respondents.

The facts in short are that Ashok Kumar Avrol and Chandra Prakash Khosla filed a petition u/s 482 Cr.P.C. (Criminal Misc. Case No. 380 of 1994) challenging the complaint and further proceedings of Case No. 676 of 1993, Union of India v. Ram Kumar Misra and Others, u/s 135 of the Customs Act, 1962, pending before the Special Chief Judicial Magistrate, Allahabad. The said petition was filed by Sri Virendra Bhatia, Advocate and interim order was also passed in the petition on 1-3-1995 whereby further proceedings pending before the Special Chief Judicial Magistrate, Allahabad were stayed. It appears that case was listed before Hon''ble Mr. Justice N.K. Mehrotra on 29-7-2003, who was pleased to pass the following order :-

Nobody present from the side of the petitioner. Heard the learned Addl. Govt. Advocate. I do not find it a fit case to exercise the inherent power u/s 482 Cr.P.C. It is not a case of the abuse, of the process of any court and no order making interference is required in the ends of justice.

The petition is dismissed.

Aforesaid order is sought to be recalled on the ground that due to inadvertence and oversight, previous counsel Sri Virendra Bhatia could not appear in the case nor any communication was received by the applicant-petitioner from Sri Virendra Bhatia. Sri Virendra Bhatia has died and it was only in May, 2011, the petitioner learnt about the death of Sri Virendra Bhatia and later on about the dismissal of the case. Learned counsel also referred to an order passed by Custom Commissioner (Appeals) wherein a finding has been given:-

...I find that in the follow up action nothing incriminating was found which could establish nexus between smuggled computer parts and the appellants No. (ii) & (iii). I find supports from the decision of Hon''ble CEGAT in the case of 1994 (72) ELT 886 , 1996 (83) ELT 175 wherein it has been held that "statement of co-accused without any independent corroboration cannot form the basis of formation of a charge of involvement in smuggling activities.

In another case of 2000 (117) ELT 56 , it has been held that "Penalty not be levied solely on the basis of evidence given by co-accused in absence of any corroborating evidence against him.

Ultimately, while allowing the appeal, the Commissioner ordered that appellants are not liable to pay any penalty. This order of Commissioner''s appeal has been confirmed by Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi vide order dated 8-5-2002.

Learned counsel for applicants submits that in the face of the order passed by Commissioner''s appeal and Appellate Tribunal, it would be futile to proceed with the complaint case and as such this Court should use its inherent power for preventing the injustice.

Learned counsel for Union of India has filed counter-affidavit and urged that this Court is not competent to recall the order passed on merits.

Sri Virendra Bhatia died in 2010 while the petition was dismissed seven years ago in the year 2003. There is no explanation as to why the petitioner did not contact his counsel during seven years. In the affidavit filed in support of application seeking condonation of delay he stated that deponent cannot ascertain as to why Sri Virendra Bhatia did not appear on the date, it could be due to inadvertence or oversight. Although it is stated in para 5 that Virendra Bhatia had telephone number of the deponent yet applicant did not receive any communication from him. It is not mentioned that as to why the petitioners could not contact Sri Virendra Bhatia during this period. Delay has not been satisfactorily explained. From bare reading of the order, it is evident that the Court has specifically observed that it is not a case of abuse of the process of any court and not a fit case for exercising inherent jurisdiction u/s 482 Cr.P.C. As such it cannot be said that Court has dismissed the case for non-prosecution. The Court has found that it was not a case of abuse of process of Court. This finding is on merits. As such, I am afraid it cannot be disturbed subsequently on a recall application.

The finding recorded by the Tribunal is not binding upon the criminal courts. As such it cannot be said that the order passed by the Appellate Tribunal has the effect of wiping out the prosecution.

In view of the above discussions, I am of the view that the order having been passed earlier on merits, this Court is not competent to recall the same. Consequently, both the applications are liable to be dismissed. It is ordered accordingly.