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2003 DIGILAW 150 (HP)

GEETA KUMARI v. STATE OF H. P.

2003-06-12

M.R.VERMA

body2003
JUDGMENT M.R. Verma, J.—This petition under Section 482 of the Code of Criminal Procedure (hereafter referred to as the Code) has been filed by the applicants praying for restoration of Cr. M.M.O. No. 60 of 2001 which was dismissed for default on 4.3.2003. 2. Brief facts leading to the presentation of this petition are that Cr. M.M.O. No. 60 of 2001 filed by the applicants was pending in this Court and came up for hearing on 4.3.2003. However, no appearance was put in for the applicants, therefore, the same was dismissed for default of appearance and prosecution. The present petition has now been moved for restoring the said Cr. M.M.O. on the grounds that vide order dated 23.12.2002 this court directed listing of the Cr. M.M.O. during the week commencing from 2nd March, 2003 but the counsel for the applicants wrongly and inadvertently noted that the petition was to be listed in the 2nd week of March, 2003 and this mistake resulted in the non-appearance for the applicants and the dismissal of the Cr. M.M.O. The averments made in the petition are supported by affidavit. 3. The respondents did not file any reply to the present petition. However, they contested the petition. 4. I have heard the learned Counsel for the parties and have also gone through the relevant records. 5. A preliminary objection was taken for the respondents about the maintainability of the present petition and it was urged that in view of the provisions of Section 362 of the Code no Court, including the High Court, has the power to alter or review its judgment or final order disposing of a case, therefore, the present petition is not maintainable. To substantiate the submissions, the learned Counsel for the respondents relied on State of Kerala v. MM. Manikantan Nair, (2001) 4 SCC 7521; Hari Singh Mann v. Harbhajan Singh Bajwa and others, (2001) 1 SCC 1691; Mosst. Simrikhia v. Smt. Dolley Mukherjee and another, AIR 1990 SC 1606; State of Orissa v. Ram Chander Agarwala etc., AIR 1979 SC 87 and Smt. Sooraj Devi v. Pyare Lai and another, AIR 1981 SC 736. 6. Manikantan Nair, (2001) 4 SCC 7521; Hari Singh Mann v. Harbhajan Singh Bajwa and others, (2001) 1 SCC 1691; Mosst. Simrikhia v. Smt. Dolley Mukherjee and another, AIR 1990 SC 1606; State of Orissa v. Ram Chander Agarwala etc., AIR 1979 SC 87 and Smt. Sooraj Devi v. Pyare Lai and another, AIR 1981 SC 736. 6. It is undoubtedly clear from a bare reading of Section 362 of the Code that unless otherwise provided in the Code or by any other law for the time being in force, no Court, which will include even the High Court, shall alter or review its signed judgment or final order disposing of a case except to correct a clerical or arithmetical error. However, in view of the scheme of the Code as a whole and the various provisions contained therein it appears that a Criminal Court is debarred from altering or reviewing its judgment or final order only when such judgment or final order disposing of the case has been passed on merits of the case and will not apply to a case which has not been heard and decided on merits but has been dismissed for default of a party in appearance prosecution which may not be deliberate or intentional. There is only one provision in the Code i.e. Section 256 of the Code which provides for the consequences of non-appearance of a complainant in a summons case otherwise there is no provision which provides for dismissal of any other petition appeal or revision for default. The intention thus is evident that other matters must be finally disposed of on their own merits. Therefore, where an appeal or revision is dismissed for default and without going into the merits of the case it appears necessary to hear and dispose of such matter on merits to secure the ends of justice. Therefore, the High Court in exercise of its inherent powers will be justified to readmit a matter dismissed for default for hearing and disposal on merits. 7. In the cases, cited for the respondents, earlier decisions were reviewed by the respective Courts which had passed judgment or final order on merits of the case. Evidently, such judgment or final order having been passed on merits could not be called in question before the same Court by seeking any alteration in the findings recorded therein on merits. 7. In the cases, cited for the respondents, earlier decisions were reviewed by the respective Courts which had passed judgment or final order on merits of the case. Evidently, such judgment or final order having been passed on merits could not be called in question before the same Court by seeking any alteration in the findings recorded therein on merits. None of the aforesaid cases involved the question whether a petition dismissed for default can or cannot be restored/readmitted for being heard on merits so as to secure the ends of justice. 8. This Court in Reeta Roy v. State of Himachal Pradesh and others, 2000 Cri.L.J. 3740, while dealing with a similar question held as under: "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 for hearing 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 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. In the case in hand the revision petition was duly listed for hearing on 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. 9. In the case in hand the revision petition was duly listed for hearing on 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 8.11.1999 that the revision petition has not been dismissed for default of appearance but on merits." 9. In Reeta Roys case (supra) this Court refused to restore the revision petition which was dismissed in the absence of the petitioner but the reason therefor was that the revision petition was dismissed on merits and not merely for default of appearance. Otherwise it has been held therein that a revision petition could he reheard in exercise of inherent powers under Section 482 of the Code (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. 10. In K.G. Keralakumaran Nair v. State of Kerala and another, 1995 Cri.L.J. 2319, after examining various cases on the subject the Kerala High Court held that an order dismissing an appeal for default does not amount to judgment or final order within the scope of Section 362 of the Code and further held as under: "29. The point formulated is answered thus:— (1) A criminal appeal shall be disposed of only after perusing the record and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears. (2) A criminal appeal can be decided on merits, only after hearing the appellant or his counsel. (3) The High Court has powers under-Section 482 of the Code of Criminal Procedure to dismiss and appeal or revision or any other criminal proceeding for default or non-prosecution. (4) The High Court has also inherent power to restore any matter dismissed for default or non-prosecution on sufficient reason being shown. (5) The power of dismissal for default and the power of restoration inhere only in the High Court and cannot be exercised by the Courts subordinate to the High Court since they do not possess the inherent powers under Section 482 of the Code." 11. (5) The power of dismissal for default and the power of restoration inhere only in the High Court and cannot be exercised by the Courts subordinate to the High Court since they do not possess the inherent powers under Section 482 of the Code." 11. In view of the above, it is evident that where an appeal or revision has been dismissed for default and not on merits the same can be readmitted for hearing on merits if sufficient cause for such default is shown and to secure the ends of justice within the scope of the provisions of Section 482 of the Code. In my view, same principle must apply to a petition under Section 482 of the Code. 12. The case in hand admittedly has not been disposed of on merits but was dismissed for default of appearance/prosecution. The default of absence for the applicants is attributed to wrongly but inadvertently noting the order passed by the Court about the period when the Cr. M.M.O. was to be listed for hearing. This mistake on the part of the learned counsel for the applicants, which remains uncontroverted, in my view, discloses sufficient cause for restoration of the Cr. M.M.O., therefore, the present petition deserves to be allowed to give an opportunity to the applicants to prosecute the Cr. M.M.O. on merits which will enable the Court to do substantial justice in the matter. 13. As a result, this application is allowed and Cr. M.M.O. No. 60 of 2001 is restored and re-admitted for hearing on merits. Application allowed.