Allahabad High Court Judgement

Allahabad High Court Judgement

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JUDGEMENT HEADLINE : Order Dismissing Crl. Revision For Default Or Non-prosecution As Well The Order Deciding The Revision On Merit In Absence Of Any Party Can Be Recalled
JUDGEMENT TITLE : Mithaee Lal Vs. State Of U.P. & Others On 12/09/2008 By Allahabad High Court
CASE NO : CRIMINAL REVISION NO. 4693 OF 2006
CORAM : Hon'ble Vijay Kumar Verma,J.

HIGH COURT OF JUDICATURE AT ALLAHABAD

A.F.R.
Court No. 13

Criminal Misc. Restoration/Recall Application No. 166376 Of 2007

in

(Criminal Revision No. 4693 Of 2006)

Mithaee Lal.................... Applicant/revisionist.

Versus

State Of U.P. And Others................ Opposite Parties


Hon'ble Vijay Kumar Verma, J.

"Whether Criminal Revision Can Be Dismissed In Default Or Non-prosecution And Whether Such Order Can Be Recalled" Are Two Cardinal Questions That Fall For Consideration In This Restoration Application, By Means Of Which, The Order Dated 30.03.2007 Passed In Criminal Revision No. 4693 Of 2006 Mithaee Lal Vs. State Of U.P. And Others Is Sought To Be Recalled.

2.From The Record, It Transpires That Criminal Revision Referred To Above Was Listed On 30.03.2007. When The Case Was Called Out, The Counsel Of The Revisionist Was Not Present Even In The Revised List. Hence, Hon'ble Vinod Prasad, J. Passed The Following Order:-
"List Is Revised. Even In The Revised List, Learned Counsel For The Revisionist Is Not Present.
This Revision Is Dismissed For Non Prosecution.
Interim Order Dated 24.08.2006 Stands Vacated."

3.Prayer To Recall Above Mentioned Order Has Been Made In This Restoration/recall Application, Which Is Accompanied By The Affidavit Of Revisionist. No Counter Affidavit Has Been Filed By The Opposite Parties Although Their Counsel Are Present Today.
4.Heard Argument Of Sri Shekhar Srivastava, Learned Counsel For The Applicant-revisionist, Sri Dashrath Lal, Learned Counsel For Opposite Parties No. 2 And 3 And Learned A.G.A. For The State.
5.It Is Contended By Learned Counsel For The Applicant-revisionist That There Is No Provision In The Code Of Criminal Procedure(in Short, 'the Cr.P.C.) To Dismiss The Revision In Default Or For Non Prosecution And Since The Revision In Present Case Was Dismissed For Non-prosecution, Hence The Order Dated 30.03.2007 Passed In Criminal Revision 4693 Of 2006, Being Illegal, Should Be Recalled By This Court In Exercise Of Inherent Powers Under Section 482 Cr.P.C.
6.On The Contrary, It Was Vehemently Contended By Learned Counsel For The Opposite Parties That There Is No Provision In Cr.P.C. Analogous To Order 9 Rules 4, 9 Or 13 And Order 41 Rule 19 C.P.C. And Hence, The Order Dated 30.03.2007 Passed By Another Bench Of This Court In Criminal Revision No. 4693 Of 2006 Cannot Be Recalled, As There Is No Provision In Cr.P.C. To Recall Such Orders.
7.Having Given My Thoughtful Consideration To The Rival Submissions Made By The Learned Counsel For The Parties, I Find Force In The Aforesaid Submission Of The Learned Counsel For The Applicant-revisionist That Criminal Revision Cannot Be Dismissed In Default Or For Non-prosecution. It Is Settled Law That Criminal Revision Has To Be Decided On Merit, Even If The Counsel Of The Parties Are Not Present To Make Their Submissions. Reference In This Regard May Be Made To The Case Of Madan Lal Kapoor Vs. Rajiv Thapar And Others 2007 (59) ACC 788 (SC), In Which The Hon'ble Apex Court Has Held That Criminal Revision Cannot Be Dismissed In Default Or For Non-prosecution And It Has To Be Decided On Merit. It Is Also Held By The Hon'ble Apex Court That Criminal Appeal Also Cannot Be Dismissed In Default. Therefore, In View Of This Specific Law Laid Down By The Hon'ble Apex Court, The Order Dated 30.03.2007, Whereby Criminal Revision No. 4693 Of 2006 Was Dismissed For Non-prosecution, Is Not In Accordance With Law.
8.Now The Question Remains Whether The Order Dismissing Criminal Revision For Default Or Non-prosecution Can Be Recalled. In My Considered Opinion, Such Order Can Certainly Be Recalled By The Court In Exercise Of Inherent Powers, Which Are Vested In All Courts Whether Civil Or Criminal. In This Regard, I May Refer The Case Of Bishambhar Dayal Vs. State Of Shaghir Ahmad 1958 ALJ 389, In Which Criminal Revision Was Dismissed In Default By The Sessions Judge. That Order Was Subsequently Recalled On The Application Of The Revisionist. The Order Of Recalling Was Challenged By Opposite Party In This Court. It Has Been Held By This Court That Revision Dismissed For Default Of Appearance Can Be Reheard By A Sessions Judge. It Is Further Held That The Sessions Judge Not Having Justified In Dismissing The Revision On The Ground Of Default In Appearance, The Question Of Sufficiency Or Otherwise Of The Reason For Absence Does Not Arise.
9.The Karnataka High Court In Ibrahimsab V. Faridabi (1986) 2 Kant LJ 65 Has Held That The Expression "final Order Disposing Of The Case" Means A Considered Order On Merits And Not An Order Of Dismissal For Default And The Provision Contained In Sec. 362, Does Not Come In The Way Of The Court Recalling Such Order And Restoring The Revision Dismissed For Default.
10. While Answering Formulated Points, The Division Bench Of Kerala High Court In The Case Of K. G. Keralakumaran Nair Vs. State Of Kerala And Another (1995 Crl L. J. 2319) Has Held That "the High Court Has Inherent Power To Restore Any Matter Dismissed For Default Or Non Prosecution On Sufficient Reason Being Shown.
11.Therefore, Keeping In View The Law Laid Down In Above Mentioned Cases, There Is No Legal Impediment For This Court To Recall The Order Dated 30.03.2007 Passed In Criminal Revision No. 4693 Of 2006.
12. Before Parting With This Order, It Is Worthwhile To Mention That Order Deciding Criminal Revision On Merit In Absence Of Any Or Both Parties Can Also Be Recalled, Although This Matter Is Not Involved In Present Case. The Full Bench Of This Court In The Case Of Raj Narayan And Others Vs. State (AIR 1959 Allahabad 315) In Context Of Section 561-A Cr.P.C. (correspondent To Section 482 New Cr.P.C., 1973) Has Held That High Court Has Power To Revoke, Review, Recall Or Alter Its Own Earlier Decision In Criminal Revision And Rehear The Same In Cases Falling Under One Or The Other Of The Three Conditions Mentioned In Section 561-A Namely :-
(1) For The Purpose Of Giving Effect To Any Order Passed Under The Code Of Criminal Procedure.

(2) For The Purpose Of Preventing Abuse Of The Process Of Any Court, And

(3) For Otherwise Securing The Ends Of Justice.


13. The Full Bench Of Rajasthan High Court In The Case Of Habu Vs. State Of Rajasthan (AIR 1987 Rajasthan 83) On A Reference Made To It Has Held That "the Power Of Re-call Is Different Than The Power Of Altering Or Reviewing The Judgement, And Powers Under S.482, Can Be And Should Be Exercised By The High Court For Re-calling The Judgement In Case The Hearing Is Not Given To The Accused And The Case Falls Within One Of The Three Conditions Laid Down Under S.482". It Is Further Observed That "while Considering The Scope Of Right Of Hearing Due Consideration Has To Be Given To S.304 Cr.P.C., Arts. 21 And 39-A Of The Constitution. Section 482 Cr.P.C. Will Have To Be Considered In The Light Of The Aforesaid Provisions. In All Civilized And Democratic Societies Right Of Hearing Has Been Considered To Be One Of The Most Fundamental Of The Fundamental Rights Flowing From Principles Of Natural Justice And Principles Enshrined In Well Known Maxim Audi Ateram Partem".

14. In The Case Of Makkapati Nagaswara Sastri Vs. S.S. Satyanarayan (AIR 1981 Supreme Court 1156), Criminal Revision Was Decided On Merit Without Hearing The Respondent. The High Court Refused To Recall The Exparte Order Holding That The Respondent Is Not Entitled To Be Heard As Of Right In Revision. The Hon'ble Apex Court While Setting-aside The Order Of High Court Held That The View Taken By The High Court Is Manifestly Contrary To The Audi Ateram Partem Rule Of Natural Justice, Which Was Applicable To The Proceedings Before The High Court. After Setting-aside The Order Of High Court Deciding The Revision Without Hearing The Counsel Of Respondent, The Case Was Sent Back To The High Court With The Direction To Decide The Revision Afresh After Hearing Both The Parties.

15. This Court In The Case Of Badloo Vs. State [1999 (39) ACC 889] Has Held That The Court Is Empowered To Recall The Order Of Dismissal Of Criminal Revision Without Hearing The Revisionist Or His Counsel Under Inherent Jurisdiction To Secure The Ends Of Justice. Similar View Was Taken By This Court In The Case Of Smt. Manju Singh Vs. Tara Chandra And Another [2005(52) ACC 372].

16.The Hon'ble Supreme Court In The Case Of Minu Kumari And Another Vs. State Of Bihar And Others [2006 (55) ACC 541] Has Held That All Courts Whether Civil Or Criminal, Possess In The Absence Of Any Express Provision, As Inherent In Their Constitution, All Such Powers As Are Necessary To Do The Right Or To Undo Wrong In The Course Of Administration Of Justice On The Principle, "quando Lex Aliquid Alicui Conceditconcedere Videtur Et Id Sine Quo Res Ipsae Esse Non Potest (when The Law Gives A Person Anything It Gives Him That Without Which It Cannot Exist). It Is Also Observed By Hon'ble Apex Court That It Is Neither Possible Nor Desirable To Lay Down Any Inflexible Rule, Which Would Govern The Exercise Of Inherent Jurisdiction And No Legislative Enactment Dealing With Procedure Can Provide For All Cases That May Possibly Arise. Courts, Therefore, Have Inherent Powers Apart From Expressed Provisions Of Law, Which Are Necessary For Proper Discharge Of Functions And Duties Imposed Upon Them By Law.
17. Therefore, Having Regard To The Observations Made In The Cases Referred To Above, The Order Dismissing Criminal Revision In Default Or Non Prosecution As Well As The Order Deciding The Revision On Merit In Absence Of Any Or Both Parties Can Be Recalled In Exercise Of Inherent Powers Not Only By The High Court, But By The Court Of Session Also.
18.For The Reasons Mentioned Herein-above, The Restoration/recall Application Dated 20.07.2007 Is Allowed And Order Dated 30.03.2007 Dismissing The Criminal Revision No. 4693 Of 2006 For Non Prosecution Is Hereby Recalled, But Interim Order Dated 24.08.2006 Will Not Automatically Be Restored.
19. List The Revision Before Appropriate Bench For Final Hearing In The Next Cause List.

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