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1979 DIGILAW 255 (KER)

BHANU v. VILASINI

1979-11-15

P.NARAYANA PILLAI

body1979
Judgment :- 1. This is a petition filed by counsel for the first respondent in Crl. R. P. No. 131 of 1978 for restoration to file and rehearing of the Revision Petition which was disposed of by me. The ground mentioned is that the revision petition was disposed of without hearing him and that he was prevented by sufficient cause from appearing in court on the date the case was posted and heard. 2. In my judgment, sorry as I am for the petitioner, this petition must fail for reasons which follow. There is no power for disposal of cases for default and consequently for restoration and rehearing of those cases conferred on courts by the provisions of the Criminal Procedure Code. A comparison of the provisions of the Civil and Criminal Procedure Codes would clearly bring out the difference in the powers of the Civil and Criminal Courts in this regard. Under 0.41 R.17 of the Civil Procedure Code on the day fixed for the hearing of an appeal if the appellant does not appear, the court is empowered to pass an order dismissing the appeal and if the appellant appears but the respondent does not appear to hear the appeal exparte and dispose of the same. As both those cases are disposals for default power to restore the appeal and rehear the same is conferred by R.19 and 21 of 0.41. There are no corresponding provisions in the Criminal Procedure Code. S.386 of the Criminal Procedure Code deals with the powers of the appellate Court. It has no power to decide an appeal for default of appearance of any party. If the appeal is not summarily dismissed under S.384 of the Criminal Procedure Code then the appellate court should on the date fixed for hearing peruse the records under S.386 of the Code and if the parties or their counsel appear, hear them. While perusal of records is peremptory hearing of parties or their counsel is dependent on their being present. Consequently as regards appeals every disposal is on merits and no disposal is for default. That is why no provision is made in the Criminal Procedure Code for restoration and re-hearing of appeals even if the disposal of those appeals on the date of hearing was without hearing the parties and they were prevented by sufficient cause from appearing in court on that day. 3. That is why no provision is made in the Criminal Procedure Code for restoration and re-hearing of appeals even if the disposal of those appeals on the date of hearing was without hearing the parties and they were prevented by sufficient cause from appearing in court on that day. 3. The powers of the revisional court in this regard are not different. Ss.397 to 401 of the Criminal Procedure Code deal with revision. Clause (2) of S 401 which deals with the powers of revision of the High Court provides that no order under that section should be made to the prejudice of the accused or other person unless he had an opportunity of being heard either personally or by pleader in his own defence. The affording of an opportunity is different from the availing of that opportunity. A party would get an opportunity for being heard if he is given notice of the case and the posting His being not present at the time of hearing is his not availing of that opportunity. There is no power conferred on the court by the provisions of the Criminal Procedure Code for restoration of revision petitions which have been disposed of, also. 4. That sends me at once to S.482 of the Criminal Procedure Code. The provisions of that section are of no help in this regard. Restoration to file and rehearing prayed for here is not to give effect to any order under the Code. Nor is it to prevent abuse of the process of the court because no abuse of the process of the court is involved here. As the disposal here was after perusal of records and after hearing those counsel who were present in court it was in accordance with law. The words "or otherwise to secure the ends of justice" occurring in S.482 also cannot take in a case of the present kind. Those words have to be read ejusdem generis as held in Assan Haji v. Sub Inspector of Police 1977 KLT. 76. Restoration and hearing of a revision petition disposed of without hearing the respondent's counsel is not a purpose analogous to "giving effect to an order under the Code" or "preventing abuse of the process of any Court". Those words have to be read ejusdem generis as held in Assan Haji v. Sub Inspector of Police 1977 KLT. 76. Restoration and hearing of a revision petition disposed of without hearing the respondent's counsel is not a purpose analogous to "giving effect to an order under the Code" or "preventing abuse of the process of any Court". On the other hand to restore and rehear a criminal revision petition which has been disposed of would be to go against the mandatory provision in S.362 of the Criminal Procedure Code that except to correct a clerical or arithmetical error a judgment or order should not be altered or reviewed after it is signed, unless otherwise provided, and inherent power cannot be used to do what is expressly prohibited by the Code. S.482 of the Code is not meant to give a second inning to a party in a case which has already been decided against him. 5. This court held in Kannan Kunhimangalam v. The Food Inspector, Cannanore Municipality AIR. 1965 Ker 37 that High Court had no inherent power to set aside its own judgment in a criminal case. The request turned down there was to review or revise cases already disposed of. But two later decisions of this court, Rajan v. Vijayan 1970 KLT. 495 and Kunhammad v. Abdul Khader 1977 KLT. 840 show that if a petition is disposed of without hearing the opposite party it can be reopened and reheard or reviewed. The Supreme Court in Sankatha Singh and others v. State of Uttar Pradesh AIR. 1962 SC. 1208 specifically held that an appellate court under the provisions of the Criminal Procedure Code had no power to restore an appeal already disposed of. In that case the Sessions Judge disposed of a Criminal appeal from convictions and sentences when the appellants and their counsel were not present on the date fixed for hearing. Later when appellants applied for restoration of the appeal to file on the ground that they were prevented by sufficient cause from appearing in court when the appeal was called for hearing the Sessions judge allowed the application and restored the appeal to file. Thereafter when the appeal which was restored to file came up before his successor in office for rehearing he held that the order restoring the appeal to file was ultravires and without jurisdiction. Thereafter when the appeal which was restored to file came up before his successor in office for rehearing he held that the order restoring the appeal to file was ultravires and without jurisdiction. The correctness of that was unsuccessfully challenged before the High Court and Supreme Court. The Supreme Court said that even if the Sessions Judge could exercise inherent power he could not restore the appeal and post it for rehearing in the exercise of such power when S.369 read with S.424 of the old Code, corresponding to S.362 and 387 of the new Code, specifically prohibited the altering or reviewing of its own order by a court, that it would not give the appellate court any power to set it aside itself and hear the appeal and that if any mistake was Committed in the judgment it could be set right only by the superior court. The Supreme Court also observed there that inherent power could not be exercised to do what the court specifically prohibited the court from doing. This decision was followed by that court in its later decision in State of Orissa v. Rama Chander Agarwala AIR. 1979 SC. 87, wherein it held that once a judgment was pronounced by a High Court in exercise of its appe-llate or revisional jurisdiction no review or revision could be entertained against that judgment. In view of the decisions of the Supreme Court the decision's in Rajan v. Vijayan 1970 KLT. 495 and Kunhammad v. Abdul Kader 1977 KLT. 840 holding that a criminal court has power to restore and rehear or review matters already disposed of cannot be taken as laying down the correct law. There is no power for this court under the provisions of the Criminal Procedure Code whether under the inherent power or otherwise to set aside its previous judgment or order disposing of an appeal or revision petition or any other petition and restore to file and rehear the same even if any of the parties to it satisfies the court that he or his counsel was prevented by sufficient cause for not appearing in court when the case was called on for hearing. With regret but without hesitation I dismiss this petition. Dismissed.