Research › Search › Judgment

J&K High Court · body

2010 DIGILAW 363 (JK)

Ab. Rehman Shiekh v. State Of J&K

2010-06-05

Hasnain Massodi

body2010
1. Petition under section 561-A Criminal Procedure Code registered as 108/2008 was dismissed for non prosecution on 28.7.2009. 2. The petitioner in the instant petition seeks restoration of the aforementioned dismissed petition to its original number. The petitioner states that the court even on failure of the petitioner to appear and prosecute the petition, was not left with the option to dismiss the petition for want of prosecution and that the court was duty bound to dispose of the petition on its merits. It is insisted that as abuse of process of the court and failure of justice was alleged in the petition, the Court was required to look into the merits of the case put forth by the petitioner and decide whether exercise of inherent powers of the court, was warranted. The petitioner against the said backdrop prays that the order dated 28.7.2009 be recalled, the petition restored to its original number and decided on merits. Heard and considered. 3. There is substance in contention of the petitioner that the Court instead of dismissing the petition for non prosecution ought to have dealt with the matter on its merits, exercised or refused to exercise powers vested in it under section 561-A Cr. P.C. Confronted with the above situation the petitioner has an option to file a fresh petition reiterating his stand as taken in the earlier petition and persuade the Court to allow the petition and quash the order/proceedings impugned in the petition. 4. In Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh, AIR 1975 S.C. 1002 . It has been held that inherent jurisdiction can be invoked by same person for second time. The Supreme Court held: "The present case is not one where the High Court was invited to revise or review an earlier order made by it in exercise of its revisional jurisdiction finally disposing of a criminal proceeding ..... Section 561 ~A preserves the inherent power of the High Court to make such orders as it deems fit to prevent abuse of the process of the Court or to secure the ends of justice and the High Court must, therefore, exercise, its inherent powers having regard to the situation prevailing at the particular point of time when its inherent jurisdiction is sought to be invoked. The High Court was in the circumstances entitled to entertain the subsequent application of Respondents Nos. The High Court was in the circumstances entitled to entertain the subsequent application of Respondents Nos. 1 and 2...." 5. The other option available to the petitioner is to ask the court to recall earlier order in exercise of its inherent powers. In Raj Narayan and others v. State AIR 1959 Allahabad 315 a Full Bench of the Allahabad High Court held that the High Court has power to revoke, review or alter its own earlier order in a criminal revision and rehear the same in cases falling under one or the other of the three conditions mentioned under section 561-A namely (i) for the purpose of giving effect to any order passed under Cr. P.C. (ii) for the purpose of preventing abuse of the process of any court, (iii) for otherwise securing the ends of justice. 6. The petitioner in the instant case has gone for second option and seeks recall of the order dated 28.7.2009 whereby his petition under section 561-A Cr. P.C has been dismissed for non prosecution. The case set up by the petitioner falls squarely within the ambit of law laid down on the subject and warrants exercise of inherit powers to prevent miscarriage of justice and secure ends of justice. Resultantly the petition is accepted, the order dated 28.7.2009 recalled. The petitioner under section 561-A Cr. P.C is restored to its original number upon restoration, the petition be listed immediately after ensuing summer vacation. Disposed of.