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2025 DIGILAW 1373 (ALL)

Parvez Khan v. State Of U. P.

2025-12-01

TEJ PRATAP TIWARI

body2025
JUDGMENT : TEJ PRATAP TIWARI, J. Ref : Crl. Misc. Application for Restoration of the application and the Recall of the order dated 30.05.2024 1. Heard learned counsel for the applicant, learned AGA as well as learned counsel appearing on behalf of the opposite party no. 2 and perused the records. 2. This application for recall of the order dated 30.05.2024 has been filed with the prayer to restore the Criminal Misc. Case No.18737 of 2023 (U/s 482 Cr.P.C.) (Parvez Khan vs. State of U.P. and another) at its original number and status. 3. Learned counsel for the applicant has submitted that on 30.05.2024 due to technical problem, the counsel for the applicant could not get the list of listed case and due to this reason, he could not attend the court and could not mention for adjournment of the case, consequently, the petition was dismissed for want of prosecution. In support of this contentions, learned counsel for the petitioner has relied upon the various judgements, which shall be taken into consideration later on. 4. Learned counsel for the opposite party no. 2 has submitted that although there is no provision in the Code of Criminal Procedure for restoration of a criminal case like Order IX of the CPC. It has further been submitted that Section 362 Cr.P.C. prohibits the court to alter or review the judgement. 5. The main question for consideration is that whether a petition under section 482 Cr.P.C., which has been dismissed for want of prosecution can be restored to its original number or not and whether the prohibition as provided by Section 362 Cr.P.C. will apply or not? Section 362 Cr.P.C. provides as under : " 362. Court not to alter judgement - Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error." Section 353 Cr.P.C. defines the judgment as under : "353. Judgment - 1. Judgment - 1. The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the Presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders:- (a) by delivering the whole of the judgment; or (b) by reading out the whole of the judgment; or (c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader. 2. Where the judgment is delivered under clause (a) of sub- section (1), the presiding officer shall cause it to be taken down in short- hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court. 3. Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of sub- section (1), as the case may be, it shall be dated and signed by the presiding officer in open Court, and if it is not written with his own hand, every page of the judgment shall be signed by him. 4. Where the judgment is pronounced in the manner specified in clause (c) of sub- section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost. 5. If the accused is in custody, he shall be brought up to hear the judgment pronounced. 6. If the accused is not in custody, he shall be required by the Court to attend to hear the judgment pronounced, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted: Provided that, where there are more accused than one, and one or more of them do not attend the Court on the date on which the judgment is to be pronounced, the presiding officer may, in order to avoid undue delay in the disposal of the case, pronounce the judgment notwithstanding their absence. 7. 7. No judgment delivered by any Criminal Court shall be deemed to be invalid by reason only of the absence of any party or his pleader on the day or from the place notified for the delivery thereof, or of any omission to serve, or defect in serving, on the parties or their pleaders, or any of them, the notice of such day and place. 8. Nothing in this section shall be construed to limit in any way the extent of the provisions of section 465." 6. The exception to the aforesaid section has been enumerated in sub-clause 8 of Section 353 as contained in Section 465, which reads as under: Section 482 Cr.P.C. is quoted below as under: "482. Saving of inherent power of High Court - Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." 7. Learned counsel for the petitioner has emphasized the word "secure the ends of justice". 8. As far as the contention of the learned counsel for the petitioner that the opportunity of being heard was not given to him has a different cannotation with the word 'opportunity of being heard' has been availed or not. The case was listed for 29.04.2015, therefore, it cannot be said that the opportunity of being heard was not extended to the applicant. However, the said opportunity of hearing was not availed by the applicant for the reason that his counsel had suddenly fallen ill and he had to leave the court in the mid day and he could not mention it before the court. It is also settled principle that the party should not suffer for the fault or latches of the counsel. 9. In Vishnu Agarwal vs. State of Uttar Pradesh; 2011 (74) ACC 609 SC , Hon'ble Suprme Court has held as under : It often happens that sometimes a case is not noted by the Counsel or his clerk in the cause list, and hence, the Counsel does not appear. This is a human mistake and can happen to anyone. Hence, the High Court recalled the order dated 2.9.2003 and directed the case to be listed for fresh hearing. This is a human mistake and can happen to anyone. Hence, the High Court recalled the order dated 2.9.2003 and directed the case to be listed for fresh hearing. The aforesaid order recalling the order dated 2.9.2003 has been challenged before us in this appeal. Learned Counsel for the appellant has relied on the decision of this Court in Hari Singh Mann Vs. Harbhajan Singh Bajwa AIR 2001 SC 43. Para 10 of the said judgment states: "Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. The reliance of the respondent on Talab Haji Hussain's case ( AIR 1958 SC 376 )(supra) is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561A(Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7.1.1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment." "In our opinion, Section 362 cannot be considered in a rigid and over technical manner to defeat the ends of justice. As Brahaspati has observed : "Kevalam Shastram Ashritya Na Kartavyo Vinirnayah Yuktiheeney Vichare tu Dharmahaani Prajayate" which means: "The Court should not give its decision based only on the letter of the law. For if the decision is wholly unreasonable, injustice will follow." 10. In Asit Kumar Kar vs. State of West Bengal and others; (2009) 1 SCC (Cri) 851 , Hon'ble the Supreme Court has held as under : "There is a distinction between a petition under Article 32, a review petition and a recall petition. While in a review petition the Court considers on merits where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but simply recalls an order which was passed without giving an opportunity of hearing to an affected party. We are treating this petition under Article 32 as a recall petition because the order passed in the decision in All Bengal Licensees Association v. Raghabendra Singh & Ors. [ 2007 (11) SCC 374 ] cancelling certain licences was passed without giving opportunity of hearing to the persons who had been granted licences. In these circumstances, we recall the directions in paragraph 40 of the aforesaid judgment. However, if anybody has a grievance against the grant of licences or in the policy of the State Government, he will be at liberty to challenge it in appropriate proceedings before the appropriate Court. The writ petitions are disposed of with these directions." 11. In Ram Naresh Yadav and others vs. State of Bihar; 1987 CRI.L.J. 1856 & AIR 1987 SCC 1500 , Hon'ble the Apex Court has held as under : "It is an admitted position that neither the appellants nor counsel for the appellants in support of the appeal challenging the order of conviction and sentence, were heard. It is no doubt true that if counsel do not appear when criminal appeals are called out it would hamper the working of the court and create a serious problem for the court. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their matters are decided on merits. And if this happens often the working of the court would become well nigh impossible. We are fully conscious of this dimension of the matter but in criminal matters the convicts must be heard before their matters are decided on merits. The court can dismiss the appeal for non-prosecution and enforce discipline or refer the matter to the Bar Council with this end in view. But the matter can be disposed of on merits only after hearing the appellant or his counsel. The court might as well appoint a counsel at State cost to argue on behalf of the appellants. Since the order of conviction and sentence in the present matter has been confirmed without hearing either the appellants or counsel for the appellants, the order must be set aside and the matter must be sent back to the High Court for passing an appropriate order in accordance with law after hearing the appellants or their counsel and on their failure to engage counsel, after hearing counsel appointed by the Court to argue on their behalf. As the matter is being remanded to the High Court, no orders can be passed on the bail application. The appellants, if so advised, may approach the High Court for bail" 12. In Rafiq and another vs. Munshi Lal and another; AIR 1981 SC 1400 , Hon'ble the Apex Court has held as under : "The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the court's procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invited us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. Therefore, we allow this appeal, set aside the order of the High Court both dismissing the appeal and refusing to recall that order. We direct that the appeal be restored to its original number in the High Court and be disposed of according to law. If there is a stay of dispossession it will continue till the disposal of the matter by the High Court. There remains the question as to who shall pay the costs of the respondent here. As we feel that the party is not responsible because he has done whatever was possible and was in his power to do, the costs amounting to Rs.200/- should be recovered from the advocate who absented himself. The right to execute that order is reserved with the party represented by Mr. A.K.Sanghi." 13. In Raghuvera and others vs. State of U.P.; 1990 CRI.L.J. 2735 (All.), this Hon'ble Court has held as under : "It is no doubt true that Section 362 Cr. P.C. debars the court from altering or reviewing any final order or judgment given by a court except to correct the clerical or arithmetical error. But the question arises whether an order dismissing an application for revision for default of the counsel as not pressed can be termed as a judgment or final order? The term "Judgment" has not been defined in the Criminal Procedure Code but a judgment means the expression of the opinion of the Court arrived at after due consideration of the entire material on record, including the arguments, if any, advanced at the Bar. A final order or judgment can only be passed in a criminal court when the court applies its mind to the merit of the case. In case the order is passed in a criminal proceeding and the application for revision is dismissed for default as not pressed, the said order cannot be taken as either final order or a judgment. Thus Section 362 Cr. P.C. is no bar to review ore alter the order dated 14th March 1990. The order in question was passed without going into the merit of the case and is without jurisdiction and as such it has to be set aside." 14. In Ramautar Thakur and others vs. State of Bihar; AIR 1957 Patna 33 & 1957 Cri. P.C. is no bar to review ore alter the order dated 14th March 1990. The order in question was passed without going into the merit of the case and is without jurisdiction and as such it has to be set aside." 14. In Ramautar Thakur and others vs. State of Bihar; AIR 1957 Patna 33 & 1957 Cri. L.J. 82 , the Patna High Court has held as under : "There is no statutory provision for such a restoration. The power to restore a case dismissed for default, if it exists, must, therefore, be an inherent power, which is saved by- the provisions of Section 561 A, Criminal P. C., This section was inserted in the Criminal Procedure Code by the Amendment Act of 1923. It is merely a saving clause which does not confer a new power on the High Court. The decisions of the High Courts prior to this amendment are, therefore, still applicable, The Criminal Procedure Code, unlike the Civil Procedure Code, does not define 'Judgment' A 'judgment' means the expression of the opinion of the Court arrived at after, a due consideration of the evidence and all the arguments. The above meaning of the word 'Judgment', as is to be found in Full Bench decisions of the Madras High Court in Re Chinna Kaliappa Goundan, ILR 29 Mad 126 (Q), of the Bombay High Court in Emperor v. Nan-dial Chunilal, 48 Bom LR 41: (AIR 1946 Bom 276) (FB) (R), and of the Calcutta High Court in Damu Senapati v. Shridhar Rajwar, ILR 21 Cal 121 (S), was approved by their Lordships Bhagwati and Imam JJ., in the Supreme Court case just mentioned. Their Lordships mentioned that the observations of the Madras High Court in its Full Bench decision, just referred to, were quoted with approval by Sulaiman J., in Dr. Hori Ram Singh v. Emperor, AIR 1939 FC 43 (T), in which his Lordships Sulaiman J., observed that the Criminal Procedure Code did not define a 'judgment', but various sections pf the Code suggested what it meant His Lordship then discussed those sections and concluded that 'judgment' in the Code meant a judgment of conviction or acquittal. The question, therefore, for our consideration is, is the order of dismissal for default a 'judgment' ? For the reasons given above, I hold that this Court has got powers to restore Cri. Revn. The question, therefore, for our consideration is, is the order of dismissal for default a 'judgment' ? For the reasons given above, I hold that this Court has got powers to restore Cri. Revn. No. 198 of 1956, which stood dismissed for default, by force of the order of this Court dated 10-2-1956, in the exercise of its inherent jurisdiction under Section 561A, Criminal P. C." 15. In the case of Hari Singh Mann vs. Harbhajan Singh Bajwa; 2001 SCC (Cri) 113 , Hon'ble the Apex Court has held as under : "We have noted with disgust that the impugned orders were passed completely ignoring the basic principles of criminal law. No review of an order is contemplated under the Code of Criminal Procedure. After the disposal of the main petition on 7.1.1999, there was no lis pending in the High Court wherein the respondent could have filed any miscellaneous petition. The filing of a miscellaneous petition not referable to any provision of Code of Criminal Procedure or the rules of the Court, cannot be resorted to as a substitute of fresh litigation. The record of the proceedings produced before us shows that directions in the case filed by the respondents were issued apparently without notice to any of the respondents in the petition. Merely because the respondent NO.1 was an Advocate, did not justify the issuance of directions at his request without notice of the other side. The impugned orders dated 30th April, 1999 and 21st July, 1999 could not have been passed by the High Court under its inherent power under Section 482 of the Code of Criminal Procedure. The practice of filing miscellaneous petitions after the disposal of the main case and issuance of fresh directions in such miscellaneous petitions by the High Court are unwarranted, not referable to any statutory provision and in substance the abuse of the process of the court. Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. Section 362 of the Code mandates that no Court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or arithmetical error. The Section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and disentitled to entertain a fresh prayer for the same relief unless the former order of final disposal is set aside by a court of competent jurisdiction in a manner prescribed by law. The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. The reliance of the respondent on Talab Haji Hussain's case (supra) is misconceived. Even in that case it was pointed that inherent powers conferred on High Courts under Section 561A (Section 482 of the new Code) has to be exercised sparingly, carefully and with caution and only where such exercise is justified by the tests specifically laid down in the section itself. It is not disputed that the petition filed under Section 482 of the Code had been finally disposed of by the High Court on 7.1.1999. The new Section 362 of the Code which was drafted keeping in view the recommendations of the 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment but also to the final orders other than the judgment." 16. In the case of State of Punjab vs. Davinder Pal Singh Bhullar and others; 2012 Cri. L. J. 1001 SC Hon'ble the Apex Court has held as under : "If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate. In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault" 17. From the aforesaid judgments of Hon'ble the Apex Court as well as of various High Courts, it is clear that prohibition of Section 362 Cr.P.C. is absolute and when the judgment has been signed, even the High Court in exercise of its inherent power under section 482 Cr.P.C. has no authority or jurisdiction to alter or review the same. 18. Certainly, if any petition has been dismissed for want of prosecution or in default of the petitioner and the reasons for decision have not been rendered after applying the mind to the pleadings of the case as well as the grounds of petition, that order of dismiss in default cannot be termed as 'Judgment' because the judgement should contain not only the facts and pleadings of the case but also the documentary as well as oral evidence. In the judgment, it is required that there should be marshalling of the facts as well as appreciation of the evidence in respect of the determination of the matter in issue. The judge is also required to give reasons for its decision after looking into the various probabilities as well as cogent reasons for relying or not relying the contention and evidence of either party. The process of judgment involves the following stages: I. Collection of Facts; II. Time Sequencing of Facts III. Shifting facts from opinions IV. Marshalling of Facts V. Find out the Problems (Charge/Issues) VI. What is the main problem (Charge/Issue) VII. Record of Evidence VIII. Churning of Evidence IX. Shifting of Evidence X. Weighing the different alternatives XI. Apply Precedents XII. Look into Prohibitions XIII. Findings and Conclusions XIV. Order. 19. In the present case, the petition has been dismissed for want of prosecution, although opportunity of hearing was given but that opportunity of hearing could not be availed due inadvertent mistake of the counsel. The inherent power under section 482 Cr.P.C. can be exercised to give effect to any order under Cr.P.C. or to prevent the abuse of the process of any court or otherwise to secure the ends of justice. The inherent power under section 482 Cr.P.C. can be exercised to give effect to any order under Cr.P.C. or to prevent the abuse of the process of any court or otherwise to secure the ends of justice. Certainly, if the application has been dismissed for default, that cannot be termed as 'judgement'. 20. Accordingly, the bar as provided by section 362 Cr. P.C. shall not be applicable. This court has power to dismiss in default any application or writ petition and at the same time has also power to restore such proceedings on sufficient grounds being shown for non-appearance provided it appears to the court that default was not wilful and it was accidental. There are instances, where either legal advise is given or due to shrewd character of the litigant malafide efforts are adopted with a view to delay the proceedings of the case, such tactics are also adopted to get the case dismissed in default and then to move application for restoration and thus, lingering on the proceedings. Certainly, such practice must be carved out and should not be permitted to continue. 21. The views expressed by the various High Courts in the aforesaid decisions are in favour of the restoration of such petition, which has been dismissed in default in exercise of powers under section 482 of the code of criminal procedure with a view to secure the ends of justice and I am also in respectful agreement with the views expressed by the various High Courts in the aforesaid decisions. 22. Therefore, I am of the view that if any petition has been dismissed in default and the application for recall is made, then it will not come within the meaning of words 'alter' or 'review' as expressed in Section 362 of the Code. Accordingly, such orders may be recalled or set aside provided the intention of the parties is bonafide i.e. party who has moved the application for recall or restoration is not unnecessary lingering on the proceedings malafidely or that interim order or stay order, if any, is not being misused. 23. Accordingly, such orders may be recalled or set aside provided the intention of the parties is bonafide i.e. party who has moved the application for recall or restoration is not unnecessary lingering on the proceedings malafidely or that interim order or stay order, if any, is not being misused. 23. Accordingly, the application for restoration or recall of the order is maintainable and the prohibition of Section 362 Cr.P.C. do not apply in the petitions, which have been dismissed in default without discussing the merits of the case because it do not come within the prohibition of 'alter' or 'review' of judgment, which has entirely a different meaning. 24. In the present case, the petition was dismissed for want of prosecution because the counsel for the applicant could not appear due to technical problem and could not get the list of listed cases. So far as the objection raised by learned counsel for the opposite party no. 2 is concerned, the Court have substantial justice should not give weight to highper technical reason. 25. Accordingly, in the interest of justice, the application for recall is allowed 26. The order dated 30.05.2024 is recalled. The petition is restored to its original number and status.