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2000 DIGILAW 117 (HP)

REETA ROY v. STATE OF H. P.

2000-05-23

M.R.VERMA

body2000
JUDGMENT M.R. Verma, Judge (Oral)- This petition under section 482 of the criminal procedure code has been preferred by the applicant for restoration and re-hearing of revision petition No.114/97 which has been disposed of by this Court vide order dated November 8, 1999. 2. Briefly stated, the facts material for the purpose of deciding the present petition are that the aforesaid revision petition preferred by the applicant against the order dated 28.11.1997 passed by the learned Sessions Judge whereby the complaint of the applicant under sections 447/448/324/ 323 and 341 of the Indian Penal Code was dismissed as withdrawn, was admitted for hearing by this Court on 02.04.1998. The Revision Petition , was listed for final hearing on November 8, 1999 when none appeared for the applicant with the result that the revision was heard and disposed of on merits in the absence of the applicant. 3. The present petition has been preferred on the ground that the Revision Petition unexpectedly came up for hearing when the applicant was out of station and the counsel for her who has only four cases pending in the High Court, could not be informed of the listing of the Revision Petition for hearing on 08.11.1999. 4. The respondents resisted the petition on the ground that the absence of the applicant/her counsel was due to negligence in prosecuting the petition which has been disposed of on merits and, thus, cannot be "restored" and re-heard. 5. I have heard the learned counsel for the parties and have also gone through the relevant records. 6. Section 401 of the Code of Criminal Procedure which deals with the High Courts powers of revision, reads as follows: "401. High Courts powers of revision.- (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a court of Session by section 307 and, when the Judges composing the court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by section 392. (2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence. (3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction. (4) Where under this code an appeal lies and no appeal is brought, no proceeding by way of revision shall be entertained at the instance of the party who could have appealed. (5) Where under this code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies there to and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly." 7. It is clear from a bare reading of the above provisions that no particular formalities are required to be complied with before taking action in exercise of the powers under section 401 of the code of criminal procedure save and except that no order under this section shall be made to the prejudice of the accused or other person unless he has an opportunity of being heard. It is implicit in the powers of revision that once a revision petition is admitted forbearing, it should be disposed of on merits. Thus, it is only in either of the following two eventualities that a revision petition once disposed of can be re-heard in exercise of inherent powers under section 482 of the code of criminal procedure: (i) when an order prejudicial to the accused or other person has been passed without notice to him, or (ii) when it has been dismissed for default of appearance and not on merits. 8. It may also be pointed out here that once a revision petition has been disposed of by a judgment on merits, the decision therein cannot be set aside on the ground that it was an ex-parte disposal nor can such a judgment be reviewed or revised in exercise of inherent powers under section 482 of the code of criminal procedure except correcting clerical, typographic or arithmetical errors. 9. 9. In the case in hand the revision petition was duly listed for hearing on 0-8.11.1999 and counsel for the applicant had filed Power of Attorney and had been appearing on the earlier dates. Hence, the applicant cannot complain of want of notice. It is evident from the order dated 08.11.1999 that the revision petition has not been dismissed for default of appearance but on merits. 10. As a result, this petition merits dismissal and is accordingly dismissed.