# Jawahar Lal @ Jawahar Lal Jalaj v. The State of U.P. Opp. Party

- **Citation:** (2015) 2 ILRA 923
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2015-08-05
- **Case number:** U/S 482/378/407 No. 1994 of 2011
- **Bench:** Aditya Nath Mittal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/jawahar-lal-jawahar-lal-jalaj-v-the-state-of-u-p-opp-party-43242
- **Pages:** 18

## Headnote

Cr.P.C. Section-482-Inherent power of
Court-application dismissed in defaultcan not be termed as judgment-illness of
Counsel not disputed by C.B.I.-held-bar
of Section 362 Cr.P.C.-not availabledismissal order can not be recalled.
Held: Para-29 & 30

## Text

_Characters 0–39,864 of 59,982. This is a partial read: ask again with offset=39864 for what follows._

2 All] Jawahar Lal @ Jawahar Lal Jalaj Vs. The State of U.P.
923
establish guilt in a criminal court is not
required in a disciplinary proceedings and
preponderance
of
probabilities
is
sufficient. There may be cases where a
person is acquitted for technical reasons
or the prosecution giving up other
witnesses since few of the other witnesses
turned hostile, etc. In the case on hand the
prosecution did not take steps to examine
many of the crucial witnesses on the
ground that the complainant and his wife
turned hostile. The court, therefore,
acquitted the accused giving the benefit of
doubt. We are not prepared to say that in
the instant case, the respondent was
honourably acquitted by the criminal
court and even if it is so, he is not entitled
to claim reinstatement since the Tamil
Nadu Service Rules do not provide so."
13. In the case of Baldev Singh Vs.
Union of India and others, reported in
2006 SCC (L&S) , the Apex Court has
held as follows :
"As the factual position noted clearly
indicates, the appellant was not in actual
for the period he was in custody. Merely
because there has been an acquittal does
not automatically entitle him to get salary
for the period concerned. This is more so,
on the logic of no work no pay. It is to be
noted that the appellant was terminated
from service because of the conviction.
Effect of the same does not get diluted
because of subsequent acquittal for the
purpose
of
counting
service.
The
aforesaid position was clearly stated in
Ranchhodji Chaturji Thakore v. Supdt.
Engineer,
Gujarat
Electricity
Board,
reported in (1996) 11 SCC 603."
14. In view of the above, we do not
find any error in the impugned order,
which requires interference by this Court.
15. The Special Appeal fails and is
dismissed.
--------
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 05.08.2015
BEFORE
THE HON'BLE ADITYA NATH MITTAL, J.
U/S 482/378/407 No. 1994 of 2011
Jawahar Lal @ Jawahar Lal Jalaj Applicant
Versus
The State of U.P.
...Opp. Party
Counsel for the Applicant:
Nandit Srivastava, Kuldeep Srivastava
Counsel for the Opp. Party:
Bireshwar Nath
Cr.P.C. Section-482-Inherent power of
Court-application dismissed in defaultcan not be termed as judgment-illness of
Counsel not disputed by C.B.I.-held-bar
of Section 362 Cr.P.C.-not availabledismissal order can not be recalled.
Held: Para-29 & 30
29. 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.
30. 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
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 INDIAN LAW REPORTS ALLAHABAD SERIES
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.
Case Law discussed:
2011(74) ACC 609 SC; 1987 CRI.L.J. 1856 &
AIR 1987 SCC 1500; AIR 1981 SC 1400; 1990
CRI.L.J. 2735 (All.); 2001 (3) PLJR 728; 1994
GLH (1) 447;AIR 1957 Patna 33 & 1957
Cri.L.J. 82; 2001 SCC (Cri) 113; 2012 Cri.L.J.
1001 SC.
(Delivered by Hon'ble Aditya Nath Mittal, J.)
1. Crl. Misc. Application No.51760
of 2015 - Application for Restoration of
the Petition and the Recall of the order
dated 29.04.2015.
2. Heard learned counsel for the
applicant-petitioner, learned AGA as well
as learned counsel appearing on behalf of
the CBI and perused the pleadings.
3. This application for recall of the
order dated 29.04.2015 has been filed
with the prayer to restore the Criminal
Misc. Case No.1994 of 2011 (U/s 482
Cr.P.C.) (Jawahar Lal @ Jawahar Lal
Jalaj vs. The State Of U.P Thru CBI/ACB
Lucknow) at its original number and
status.
4. Learned counsel for the applicant
has submitted that on 29.04.2015 the
counsel for the petitioner all of sudden
around 11.30 am developed heaviness and
restlessness and rushed to the High Court
Dispensary where his blood-pressure was
found to be 160/110, upon which the
doctor advised him for complete rest 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. It has also been 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 but if any case is dismissed in
default, it cannot be said to be a
judgement. Therefore, the bar of Section
362 Cr.P.C. is not applicable. It has also
been submitted that where the party to the
proceedings is deprived of being heard
and
if in the
interest
of justice,
opportunity of hearing is expedient than
such opportunity must be given. It has
also been submitted that if there is no
provision in the Cr.P.C. for restoration of
a petition unlike Order IX of CPC then
there is no restriction in the Cr.P.C. to
recall and set aside such order, which has
been passed in absence of the petitioner.
5. Learned counsel appearing for the
CBI has not raised any objection to the
state of health of the counsel for petitioner
on 29.04.2015 and has also conceded that
if any petition is dismissed for default,
then it is neither a judgement in view of
Section 353 and 465. He has further
submitted that the court can exercise its
inherent power to restore such petition. It
has also been submitted that if any
judgement has been passed without
application of mind or where no reasons
have been assigned or where it has been
dismissed in default, such order can be set
aside exercising the powers under section
482 Cr.P.C.
2 All] Jawahar Lal @ Jawahar Lal Jalaj Vs. The State of U.P.
925
6.

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. 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. 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."
7. The exception to the aforesaid
section has been enumerated in sub-clause
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 INDIAN LAW REPORTS ALLAHABAD SERIES
8 of Section 353 as contained in Section
465, which reads as under:
8. 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."
9. Learned counsel for the petitioner
has emphasized the word "secure the ends
of justice".
10. 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.
11. 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. 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
2 All] Jawahar Lal @ Jawahar Lal Jalaj Vs. The State of U.P.
927
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."
12. 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."
13. 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. The
court can dismiss the appeal for nonprosecution 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
928
 INDIAN LAW REPORTS ALLAHABAD SERIES
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"
14. 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.
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. 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
2 All] Jawahar Lal @ Jawahar Lal Jalaj Vs. The State of U.P.
929
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."
15. 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."
16. In K. G. Keralakumaran Nair vs.
State of Kerala and other; 1995 CRI. L. J.
2319, the Kerala High Court has held as
under:
"That leads us to the further question
whether an appeal or other criminal
proceeding dismissed by this Court can be
restored to file. The contention is that this
Court has no power by virtue of Section
362 of the Code which reads:
"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."
The Section relates only to judgment or
final order disposing of a case. What is a
judgment or a final order is not seen defined
in the Code But the word 'judgment' is
understood to mean an order in a trial
terminating in either conviction or acquittal of
the accused. It has also been held that
judgment means the expression of opinion of
the Court arrived at after due consideration of
the evidence and all the arguments.
Understood in this light, every order under the
provisions of the Code cannot be considered
to be a judgment within the meaning of
Section 353 or coming under the scope of
Section 362, of the Code. In short, there must
be an investigation of the merits on evidence
and after hearing arguments in order to
constitute a judgment. In the case of an
appeal, such judgment has to be one rendered
on merits after hearing counsel for appellant
or the appellant, as the case may be, and
Public Prosecutor or counsel appearing for
respondent.
15. Whether an order dismissing an
appeal for default amounts to a judgment
or a final order coming within the scope
of Section 362 of the Code is the next
aspect that requires consideration. The
Calcutta High Court in the decision in
Bibhuty Mohun Roy v. Dasimoni Dassi
(1909) 10 Cri LJ 287, held that in India a
Court cannot review or alter its own
judgment in a criminal case, but it has
jurisdiction to hear and determine a
930
 INDIAN LAW REPORTS ALLAHABAD SERIES
criminal case which has not been heard
and determined on the merits. It was
further held that where the Court
discharged a rule because no one
appeared, it has power to re-open it.
16. In Sahadeo v. Jagannath, AIR
1950 Nagpur 77: (1950 (51) Cri LJ 662),
the appeal was dismissed for non-filing of
a copy of the judgment. It was held that
the order rejecting the appeal cannot be
held to be an order amounting to a
judgment within the meaning of Section
369 of the Code of 1898 and there was no
bar to the consideration of the appeal on
its merits.
17. The question whether a criminal
Court has inherent power to revive a
complaint in a warrant case which was
dismissed under Section 259 of the Code
of
1898
for
the
absence
of
the
complainant
on
the
date
of
commencement of the preliminary enquiry
came up for consideration in W.T. Singh
v. C.A. Singh, AIR 1961 Manipur 34 :
(1961 (2) Cri LJ 352). While holding that
such dismissal of the complaint or
discharge of the accused will not amount
to an acquittal within the meaning of
Section 403, of the Code, it was observed
that such an order of dismissal, is not a
judgment
within
Section
366,
and
therefore Section 369, would not apply. It
is also observed that the absence of any
provision on a particular matter in the
Code does not mean that the Court has no
such power and the Court may act on the
principle that every procedure should be
understood as permissible till it is shown
to be prohibited by law.
18. The Andhra Pradesh High Court
has gone to , the extent of holding that
there should be no objection to the
maintainability of a second petition for
revision when the first one had failed not
on the merits but by default. In
Satyanarayana v. Narayanaswami AIR
1961 Andh. Pra. 18 (1961) (2) Cri LJ 37),
it was held that there is no question of the
High Court becoming functus officio by
reason of an order of dismissal for default
passed by it on a petition by a private
party, who has really no right but a mere
concession in the matter of moving the
High Court in revision.
19. The Mysore High Court had
occasion to consider whether a revision
application dismissed for default can be
restored in the decision in Madiah v. State
of Mysore, AIR 1963 Mysore 191 :
(1963(2) Cri LJ 23). That was a case of a
dismissal of a revision by the High Court.
It was held that subject , to the provisions
contained in the Code, a judgment ,
delivered or an order passed on merits is
final after it is duly signed by Court. The
inherent power of a High Court cannot be
exercised in matters specifically covered
by the provisions of the Code. Where the
Code is silent about the power of the High
Court in respect of any, matter arising
before it, it can pass suitable orders in
exercise of its inherent powers to give
effect to any order passed under the Code
or to prevent the abuse of the process of
any Court or to secure the ends of justice.
It was held that this power can also be
exercised
to
reconsider
orders
of
dismissal of an appeal or application
passed without jurisdiction or in default
of appearance, where reconsideration is
necessary to secure the ends of justice.
20. The Bombay High Court in the
decision
in
Deepak
v.
State
of
Maharashtra 1985 Cri LJ 23, observed
that the High Court in exercise of its
inherent powers can review or revise its
judgment if such judgment is pronounced
without giving an opportunity of being
heard to a party who is entitled to a
hearing and that party is not at fault, the
2 All] Jawahar Lal @ Jawahar Lal Jalaj Vs. The State of U.P.
931
reason being that a party cannot suffer
for the mistake of the Court. In that case,
the hearing was adjourned to 13th
February but the adjourned date was
inadvertently marked as 8th February on
which date the petitioner and his counsel
were absent. The High Court on going
through the record passed the order
dismissing the petition. It was held that
since the petitioner was entitled to a
hearing, it could be said that the Court
acted without jurisdiction and in violation
of the principles of natural justice and in
the circumstances the review petition
must he allowed.
21. A Division Bench of this Court in
Padmachandran v. Radhakrishnan (1984
Ker LT 416), was considering the
question whether the inherent powers of
this Court under Section 482, can be
exercised to restore a revision dismissed
for default. In that case, the revision was
decided in the absence of the counsel.
Request was made for re-hearing the
revision. The Division Bench held that the
earlier order dismissing the revision was
really a disposal for default, counsel for
petitioner being absent. For the purpose
of securing the ends of justice it was
found
necessary
that
the
Criminal
Revision should be heard afresh,
22. The question whether dismissal
of a Criminal Revision petition as not
pressed amounts to a final order coming
within the scope of Section 362, of the
Code arose for consideration before the
Allahabad High Court in Raghuvira v.
State of U. P. (1990) 3 Crimes 225 :
(1990 Cri LJ 2735). If was held that a
final order or judgment can only be
passed by a criminal Court when the
Court applies its mind to the merits 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 judgment. It was held
that Section 362, of the Code is no bar to
review or alter the order of dismissal.
23. The same view was expressed by
the Karnataka High Court in Ibrahimsab
v. Faridabi (1986) 2 Kant LJ 65. It was
held that the expression "final order
disposing of the ease" means a considered
order on merits and not an order of
dismissal for default and the provision
contained in Section 362, does not come
in the way of the Court recalling such
order and restoring the revision dismissed
for default. \
The decision in Chandran's case
((1989) 2 Ker LJ 845) (supra) did not also
consider the scope of the inherent power
of this Court under Section 482, of the
Code and power of this Court to dismiss
an
appeal
or
any
other
criminal
proceeding in exercise of that power or
the
power
of
restoration.
Having
considered those matters in detail in the
light of the pronouncements of the various
High Courts. I am of the considered view
that this Court has all the inherent powers
to make any order to prevent the abuse of
the process of Court or for the ends of
justice or to enforce discipline by
invoking the powers under Section 482, of
the Code, Section 386 of the Code
notwithstanding. The provision contained
in Section 386 cannot therefore have any
application to the exclusion of those
inherent powers. Viewed from this angle
and in the light of the principle laid down
in Ram Naresh Yadav's case (1987 Cri LJ
1856) (SC). I hold that this Court has
power to dismiss an appeal or any other
criminal proceeding for default and this
Court has also the power to restore such
proceeding on sufficient grounds being
shown for non-appearance. But the right
of dismissal and the power of restoration
932
 INDIAN LAW REPORTS ALLAHABAD SERIES
can be exercised only by this Court, and
that too in exercise of the powers under
Section 482 of the Code, and not by any of
the Courts subordinate to this Court since
those courts have no inherent powers
envisaged under Section 482 of the Code.
The point formulated is answered
thus:-
i. 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.
ii. A criminal appeal can be decided
on merits, only after hearing the appellant
or his counsel.
iii. The High Court has powers under
Section 482 of the Code of Criminal
Procedure to dismiss an appeal or
revision or any other criminal proceeding
for default or non-prosecution.
iv. The High Court has also inherent
power to restore any matter dismissed for
default or non-prosecution on sufficient
reason being shown.
v. 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.
17. In Giridharilal and others vs.
Pratap Rai Mehta and another; 1989 CRI.
L.J. 2382, the Karnataka High Court has
held as under :
Section 362 puts a complete bar for
altering or reviewing of a judgment or
final order on merits and the only power
given to the Courts is that it can correct a
clerical or arithmetical error. The said
Section does not impose any prohibition
for recalling an order.
22. When a judgment or final order
is recalled it would result in complete
abrogation as if there was no judgment or
final order at all. The alteration or review
pre-supposes continuing of the initial
judgment
or
final
order
with
the
effectuation of some changes or reexamination and reconsideration of the
judgment or final order.
23. There appears to be no bar
contained in S. 362 or any other Sections
of the Code for recalling an order.
24. In this view of the matter, it is my
considered view that the grant of prayer
made by the petitioners would not offend
the salutary principle embodied in S. 362
of the Code.
25. It is the contention of the
petitioners that the order dated 4-11-1988
passed in non-compliance with S. 401(2)
of the Code needs to be recalled to secure
the ends of justice and that therefore they
can invoke the inherent jurisdiction of this
Court.
26. In the case of Habu v. State of
Rajasthan, a Full Bench of Rajasthan
High Court while answering a reference
wherein the question framed was :
"Whether the judgment given in
absence of the appellant or his Counsel
but the case decided on merits, can be
recalled by the Court in its inherent
powers under S. 482, Cr.P.C."
On an exhaustive review of the
decisions of the Supreme Court and the
various High Courts, held (at p. 101) :
"There are two available on the
point. According to one view S. 362,
Cr.P.C., has been held to be mandatory
and puts complete bar and it has been
therefore, held that S. 482, Cr.P.C., can
also not be invoked for the purposes of
reviewing or altering the judgment. The
other view is that recalling is different
than reviewing and altering and if the
2 All] Jawahar Lal @ Jawahar Lal Jalaj Vs. The State of U.P.
933
Court is of the opinion that gross injustice
has been done, then S. 482, Cr.P.C.
should be invoked to recall the judgment
and rehear the case. In fact the earlier
view has impliedly been done away with
by their Lordships of the Supreme Court
in Sankatha Singh's case. Their Lordships
have held that the appellate Court had no
power to review or restore an appeal
which has been disposed of under Ss. 424
and 369, Cr.P.C. (old). Similar was the
view taken in State of Orissa v. Ram
Chandra, . Sankatha Singh's case has
been referred to in Sooraj Devi's case, ,
wherein also their Lordships have held
that inherent powers cannot be invoked
when there is a complete bar. Scope of S.
482, Cr.P.C. was then considered by their
Lordships
in
Manohar
Nathu
Sao
Samarth v. Marot Rao, . Thus on one side
as mentioned above the principles which
have been laid down by their Lordships of
the Supreme Court can be summarised as
under :-
1. That the powers to deal with the
case must flow from the statute.
2. That the powers given under S. 362,
Cr.P.C. (S. 369, Cr.P.C., old) given to the
Court for reviewing or altering is limited only
for correcting an arithmetical or clerical error
and specifically prohibits Courts from touching
the judgment by taking away the powers
altering or reviewing the judgment or the final
order and as such principle of functus officio
has been accepted.
3. That the prohibition contained in
S. 362, Cr.P.C. (S. 369, Cr.P.C. old) is
not only restricted to the trial Court but
also extends to appellate Court or the
revisional Court.
4. That the inherent powers of the
Court cannot be invoked where there is
express prohibition and in other words S.
482, Cr.P.C. cannot be invoked.
As against this the analogical
deduction which comes out from another
set of cases is -
i. Right of the accused to be heard is
his valuable right which cannot be taken
away by any provision of law,
ii. If the accused has not been given
an opportunity of being heard is not
provided with the counsel when not duly
represented it will be violative of
principles of natural justice as well as
Art. 21 of the Constitution.
iii. That to provide defence counsel
in case the accused is not in a position to
engage is fundamental duty of the State
and has throughout been recognized and
now incorporated in S. 304, Cr.P.C., and
in Art. 39A of the Constitution.
iv. That bar of review or alter is
different than the power of recall;
v. That inherent powers given under
S. 482, Cr.P.C. (S. 561-A, Cr.P.C. Old)
are wide enough to cover any type of
cases if three conditions mentioned
therein so warrant, namely -
(a) for the purpose of giving effect to
any order passed under
the Code of Criminal Procedure;
(b) for the purposes of preventing the
abuse of the process of any Court; and
(c) for securing the ends of justice.
vi. The principle of audi alteram
partem shall be violated if right of
hearing is taken away.
vii. That when the judgment is
recalled
it
is
a
complete
obliteration/abrogation of the earlier
judgment and the Appeal or the Revision,
as the case may be, has to be heard and
decided afresh,
viii. That a Court subordinate to
High Court cannot exercise the inherent
powers and the Code restricts it to the
High Court alone.
934
 INDIAN LAW REPORTS ALLAHABAD SERIES
ix. That no fixed parameters can be
fixed and hard and fast rule also cannot
be laid down and Court in appropriate
cases where it is specified that one of the
three conditions of S. 482, Cr.P.C., are
attracted should interfere."
The reference was answered by the
Full Bench in the following terms :
i. That the power of recall is different
than the power of altering or reviewing
the judgment.
ii. That powers under S. 482,
Cr.P.C., can be and should be exercised
by this Court for recalling the judgment in
case the hearing is not given to the
accused and the case falls within one of
the three conditions laid down under S.
482, Cr.P.C."
I am in respectful agreement with the
law, laid down by the Rajasthan High
Court in the decision rendered by the Full
Bench.
18. In Uma Shanker Jha vs. State of
Bihar: 2001 (3) PLJR 728, the Patna High
Court has held as under :
"It is well known dictum that justice
has not only to be done but it should also
appear to have been done and therefore,
whenever a litigant comes before the
Court it is essential that he must go
having full faith in his mind and the Court
has done justice with his case and he must
at least have the satisfaction that he has
been heard by Court. The position of a
litigant is also helpless because he has to
depend upon his lawyer and mercy of
others. He has full confidence on his
counsel that he will do his best in his
interest. It is well settled that if due to
carelessness or laches on the part of
lawyer, a case is dismissed the litigant
should not be made to suffer. In the
instant case the admitted position is that
the counsel appearing for the Petitioner
was not present on any date when the
case was fixed for hearing and through
the aid of his colleague adjournments
were prayed for which were allowed by
the
court
on
three
occasions
but
ultimately the court was compelled to
reject the similar prayer since the matter
had become too old and the stay was
granted in this case. Eventually, the
matter was heard ex parte and revision
preferred by the Petitioner was dismissed
after perusing the order passed by the
trial court. It would, therefore, appear
that no detail hearing was done in the
case and the Petitioner could not get the
opportunity of, detail hearing. The
counsel for the Petitioner has, therefore,
submitted that the Petitioner was highly
prejudiced because his case was not
argued due to which the revision
application
was
dismissed
and
the
Petitioner did not get justice. There was
lapse on the part of conducting lawyer
which has made him to suffer. It was,
therefore, submitted that ill the ends of
justice the Petitioner should, be afforded
an opportunity of hearing which will be in
conformity with the principles of natural
justice and the court has inherent powers
under Sections 482 of the Code of
Criminal Procedure to recall the order
for securing the ends of justice.
19. In Ibrahimsab vs. Faridabi; ILR
1986 Karnataka 2251, the Karnataka High
Court has held as under :
"Section 362 Cr.P.C.