Vijay Singh vs State of U.P.

Pradeep Kant, J.—This is an application for recall of my order dated 3.8.07, by means of which, on the application of the complainant, hearing of the criminal appeal has been expedited.

An objection has been raised by Sri Kunwar Mridul Rakesh, Senior Advocate, saying that the application itself is not maintainable, as it is prerogative of Hon''ble the Chief Justice or the Senior Judge, as the case may be, to expedite the hearing of any case including criminal appeal and no party can say that the appeal be not heard at an early date.

Sri Salman Khursheed, learned Senior Advocate, who pressed the application for recall, submitted that the order has been obtained without giving a copy of the application for early listing to the applicantappellant and that no reasons could be shown as to why an appeal of the year 2003 has been expedited when very old appeals of the previous years are pending for hearing.

To oppose the said application for recall, time was taken by the other side but they did not file any objection but made oral submission at the time of consideration of the application.

The grievance of the applicant that he was not given any copy of the expedite application though is not of much relevance as he himself has filed a copy of the application alongwith the application for recall and has also made an effort to meet the allegations made therein. Even otherwise on this count, no prejudice can be said to have been caused, as the applicant has been given full opportunity to put his version in case he feels aggrieved by the order of early listing or in other words, the grounds on which he opposes the early hearing of the appeal.

Chapter V Rule 9 of the Allahabad High Court Rules, 1952 says that subject to any general or special order of the Chief Justice, Senior Judges at Allahabad and Lucknow shall, in the absence of the Chief Justice, exercise jurisdiction at their respective places in connection with the arrangement of Benches, listing of cases and other like matters.

In exercise of the power aforesaid, the Senior Judge of this Court has exclusive prerogative for listing of the case of any nature whatsoever.

In view of the averments made in the application for recall, opportunity has duly been given to the applicant to put his case that in what manner the discretion exercised by the Senior Judge in expediting the hearing of an appeal, has caused any prejudice to him or any of his rights have been infringed.

The learned counsel could not satisfy that under which Rule or provision, an application for expeditious disposal of an appeal can be opposed, nor could he establish any prejudice having been caused to the applicantappellant with the order expediting the hearing of the appeal. The plea that in the presence of older appeals, this appeal could not have been ordered to be expedited, if accepted, would mean that in an order of expeditious disposal, recording of reasons is a must and despite the fact that the Senior Judge is satisfied that the case should be directed to be listed for early disposal, it cannot be done unless the application is judicially scrutinised. This is not the intention of the Rules.

The argument that the older criminal appeals are pending for considerably long period and, therefore, there cannot be any justification for expediting the hearing of the appeal, besides being wholly irrelevant, also misses the fact that in case the litigants of other criminal appeals do not come forward for getting their appeal expedited and wait for their turn, it cannot be said that the person, who moves an application for early hearing, should be denied the prayer made, only for the sake that other litigants have not come forward for getting their appeals/cases expedited.

It also remains to be explained that how a litigant to a case can take any exception, if his case is directed to be listed at an early date. No party to a litigation can insist that his case should not be heard at an early date and should be allowed to remain pending for being decided on its turn or at a later date.

Also, a person who has been convicted and sentenced by the court below, if has been enlarged on bail in appeal by the High Court, or a person, who has to his advantage an interim order of stay in any case, cannot be allowed to raise any objection against hearing of the appeal at an early date because of lurking fear of the appeal or the case being dismissed. The fate of the appeal or the case, may be the writ petition, depends upon hearing of the matter finally, for which no exception can be taken.

So far the allegations and counter allegations, which have been made in the affidavit filed with the application for expeditious disposal as well as in the application for recall are concerned, suffice it would be to mention that they do not constitute any part of the record of criminal appeal and would have no bearing in the matter, when the appeal is heard on merits.

In my opinion, the prerogative of the Senior Judge in ordering for listing of the case out of turn or expeditiously, cannot be fettered with any such requirement that unless all the appeals or cases filed before the particular case or appeals are decided or reasons are recorded for passing an order of expeditious disposal, the order of expeditious hearing of the case would be bad.

It is the satisfaction of the Senior Judge to pass an order of expeditious hearing, which satisfaction is reflected by the mere fact that on consideration of the prayer, an order for expeditious disposal is passed or is refused. To reiterate, no party to any litigation can take any exception if the orders for early disposal of his case is passed by the Senior Judge.

By the order of expeditious hearing, no prejudice is caused to any of the parties. No ground is made out to recall the order or to reject the application for early hearing.

The application for recall, thus, has no force, which is hereby rejected.