# Mithaee Lal /revisionist v. State of U.P. & others

- **Citation:** (2009) 1 ILRA 14
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-09-12
- **Case number:** Criminal Misc. Restoration/Recall Application No. 166376 of 2007
- **Bench:** Vijay Kumar Verma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mithaee-lal-revisionist-v-state-of-u-p-others-41299
- **Pages:** 4

## Headnote

Code of Criminal Procedure-Section 482Criminal Revision-dismissed in defaultrecall application-objected provision of
order 9 rule (4) (a) (13) and Order 41
Rule 19 C.P.C. not applicable in Criminal
proceeding-held-No
provision
of
dismissing criminal revision in absence
of counsel-such error can be corrected
by
exercising
inherent
power-both
orders dismissal of revision in default as
well as order on merit in absence of
counsel can be recalled by either the
session court or by High Court.

Held: Para 11 & 17

Therefore, keeping in view the law laid
down in above mentioned cases, there is
no legal impediment for this Court to
recall the order dated 30.03.2007 passed
in criminal revision no. 4693 of 2006.

Therefore,
having
regard
to
the
observations made in the cases referred
to above, the order dismissing criminal
revision in default or non prosecution as
well as the order deciding the revision on
merit in absence of any or both parties
can be recalled in exercise of inherent
powers not only by the High court, but
by the Court of Session also.
Case law discussed:
2007 (59) ACC 788 (SC), 1958 ALJ 389,
Faridabi (1986) 2 Kant LJ 65, (1995 Crl L.J.
2319, AIR 1959 Allahabad 315, AIR 1987
Rajasthan 83, AIR 1981 Supreme Court 1156,
1999 (39) ACC 889, 2005(52) ACC 372, 2006
(55) ACC 541

## Text

14 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
REVISIONAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.09.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Criminal Misc. Restoration/Recall
Application No. 166376 of 2007
In
(Criminal Revision No. 4693 of 2006)

Mithaee Lal
 ...Applicant/revisionist
Versus
State of U.P. & others ...Opposite parties

Counsel for the Applicant:
Sri Shekhar Srivastava

Counsel for the Respondents:
Sri Dashrath Lal
A.G.A.

Code of Criminal Procedure-Section 482Criminal Revision-dismissed in defaultrecall application-objected provision of
order 9 rule (4) (a) (13) and Order 41
Rule 19 C.P.C. not applicable in Criminal
proceeding-held-No
provision
of
dismissing criminal revision in absence
of counsel-such error can be corrected
by
exercising
inherent
power-both
orders dismissal of revision in default as
well as order on merit in absence of
counsel can be recalled by either the
session court or by High Court.

Held: Para 11 & 17

Therefore, keeping in view the law laid
down in above mentioned cases, there is
no legal impediment for this Court to
recall the order dated 30.03.2007 passed
in criminal revision no. 4693 of 2006.

Therefore,
having
regard
to
the
observations made in the cases referred
to above, the order dismissing criminal
revision in default or non prosecution as
well as the order deciding the revision on
merit in absence of any or both parties
can be recalled in exercise of inherent
powers not only by the High court, but
by the Court of Session also.
Case law discussed:
2007 (59) ACC 788 (SC), 1958 ALJ 389,
Faridabi (1986) 2 Kant LJ 65, (1995 Crl L.J.
2319, AIR 1959 Allahabad 315, AIR 1987
Rajasthan 83, AIR 1981 Supreme Court 1156,
1999 (39) ACC 889, 2005(52) ACC 372, 2006
(55) ACC 541

(Delivered by Hon'ble Vijay Kumar Verma, J.)

"Whether criminal revision can be
dismissed in default or non-prosecution
and whether such order can be recalled"
are two cardinal questions that fall for
consideration
in
this
restoration
application, by means of which, the order
dated 30.03.2007 passed in criminal
revision no. 4693 of 2006 Mithaee Lal vs.
State of U.P. and others is sought to be
recalled.

2. From the record, it transpires that
criminal revision referred to above was
listed on 30.03.2007. When the case was
called out, the counsel of the revisionist
was not present even in the revised list.
Hence, Hon'ble Vinod Prasad, J. passed
the following order:-

"List is revised. Even in the revised
list, learned counsel for the revisionist is
not present.
This revision is dismissed for non
prosecution.
Interim
order
dated 24.08.2006
stands vacated."

3. Prayer to recall above mentioned
order
has
been
made
in
this
restoration/recall application, which is
accompanied
by
the
affidavit
of
revisionist. No counter affidavit has been
1 All] Mithaee Lal V. State of U.P. and others
15
filed by the opposite parties although their
counsel are present today.

4. Heard argument of Sri Shekhar
Srivastava,
learned
counsel
for
the
applicant-revisionist, Sri Dashrath Lal,
learned counsel for opposite parties no. 2
and 3 and learned A.G.A. for the State.

5. It is contended by learned counsel
for the applicant-revisionist that there is
no provision in the Code of Criminal
Procedure (in short, the Cr.P.C.) to
dismiss the revision in default or for non
prosecution and since the revision in
present case was dismissed for nonprosecution,
hence
the
order
dated
30.03.2007 passed in criminal revision
4693 of 2006, being illegal, should be
recalled by this Court in exercise of
inherent powers under Section 482
Cr.P.C.

6. On the contrary, it was
vehemently contended by learned counsel
for the opposite parties that there is no
provision in Cr.P.C. analogous to order 9
Rules 4, 9 or 13 and order 41 Rule 19
C.P.C. and hence, the order dated
30.03.2007 passed by another Bench of
this Court in criminal revision no. 4693 of
2006 cannot be recalled, as there is no
provision in Cr.P.C. to recall such orders.

7. Having given my thoughtful
consideration to the rival submissions
made by the learned counsel for the
parties, I find force in the aforesaid
submission of the learned counsel for the
applicant-revisionist that criminal revision
cannot be dismissed in default or for nonprosecution. It is settled law that criminal
revision has to be decided on merit, even
if the counsel of the parties are not present
to make their submissions. Reference in
this regard may be made to the case of
Madan Lal Kapoor Vs. Rajiv Thapar
and others 2007 (59) ACC 788 (SC), in
which the Hon'ble Apex Court has held
that criminal revision cannot be dismissed
in default or for non-prosecution and it
has to be decided on merit. It is also held
by the Hon'ble Apex Court that criminal
appeal also cannot be dismissed in
default. Therefore, in view of this specific
law laid down by the Hon'ble Apex Court,
the order dated 30.03.2007, whereby
criminal revision no. 4693 of 2006 was
dismissed for non-prosecution, is not in
accordance with law.

8. Now the question remains
whether the order dismissing criminal
revision for default or non-prosecution
can be recalled. In my considered opinion,
such order can certainly be recalled by the
Court in exercise of inherent powers,
which are vested in all Courts whether
Civil or Criminal. In this regard, I may
refer the case of Bishambhar Dayal Vs.
State of Shaghir Ahmad 1958 ALJ 389,
in which criminal revision was dismissed
in default by the Sessions Judge. That
order was subsequently recalled on the
application of the revisionist. The order of
recalling was challenged by opposite
party in this Court. It has been held by
this Court that revision dismissed for
default of appearance can be reheard by a
Sessions Judge. It is further held that the
Sessions Judge not having justified in
dismissing the revision on the ground of
default in appearance, the question of
sufficiency or otherwise of the reason for
absence does not arise.

9. The Karnataka High Court in
Ibrahimsab V. Faridabi (1986) 2 Kant
LJ 65 has held that the expression "final
order disposing of the case" means a
16 INDIAN LAW REPORTS ALLAHABAD SERIES [2009
considered order on merits and not an
order of dismissal for default and the
provision contained in Sec. 362, does not
come in the way of the Court recalling
such order and restoring the revision
dismissed for default.

10. While answering formulated
points, the Division Bench of Kerala High
Court
in
the
case
of
K.G.
Keralakumaran Nair Vs. State of
Kerala and another (1995 Crl L. J.
2319) has held that "the High Court has
inherent power to restore any matter
dismissed for default or non prosecution
on sufficient reason being shown.

11. Therefore, keeping in view the
law laid down in above mentioned cases,
there is no legal impediment for this
Court to recall the order dated 30.03.2007
passed in criminal revision no. 4693 of
2006.

12. Before parting with this order, it
is worthwhile to mention that order
deciding criminal revision on merit in
absence of any or both parties can also be
recalled, although this matter is not
involved in present case. The Full Bench
of this Court in the case of Raj Narayan
and
others
Vs.
State
(AIR
1959
Allahabad 315) in context of Section 561A Cr.P.C. (correspondent to Section 482
new Cr.P.C., 1973) has held that High
Court has power to revoke, review, recall
or alter its own earlier decision in
criminal revision and rehear the same in
cases falling under one or the other of the
three conditions mentioned in Section
561-A namely:-

(1) For the purpose of giving effect to
any order passed under the Code of
Criminal Procedure.
(2) For the purpose of preventing abuse
of the process of any Court, and
(3) For otherwise securing the ends of
justice.

13. The Full Bench of Rajasthan
High Court in the case of Habu Vs. State
of Rajasthan (AIR 1987 Rajasthan 83)
on a reference made to it has held that
"the power of re-call is different than the
power of altering or reviewing the
judgement, and powers under S.482, can
be and should be exercised by the High
Court for re-calling the judgement 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". It is further observed that "while
considering the scope of right of hearing
due consideration has to be given to
S.304 Cr.P.C., Arts. 21 and 39-A of the
Constitution. Section 482 Cr.P.C. will
have to be considered in the light of the
aforesaid provisions. In all civilized and
democratic societies right of hearing has
been considered to be one of the most
fundamental of the fundamental rights
flowing from principles of natural justice
and principles enshrined in well known
maxim audi ateram partem".

14. In the case of Makkapati
Nagaswara Sastri Vs. S.S. Satyanarayan
(AIR
1981
Supreme
Court
1156),
criminal revision was decided on merit
without hearing the respondent. The High
Court refused to recall the exparte order
holding that the respondent is not entitled
to be heard as of right in revision. The
Hon'ble Apex Court while setting-aside
the order of High Court held that the view
taken by the High Court is manifestly
contrary to the audi ateram partem rule of
natural justice, which was applicable to
the proceedings before the High Court.
1 All] Abdul Aziz and others V. State of U.P. and another
17
After setting-aside the order of High
Court deciding the revision without
hearing the counsel of respondent, the
case was sent back to the High Court with
the direction to decide the revision afresh
after hearing both the parties.

15. This Court in the case of Badloo
Vs. State [1999 (39) ACC 889] has held
that the Court is empowered to recall the
order of dismissal of criminal revision
without hearing the revisionist or his
counsel under inherent jurisdiction to
secure the ends of justice. Similar view
was taken by this Court in the case of
Smt. Manju Singh Vs. Tara Chandra
and another [2005(52) ACC 372].

16. The Hon'ble Supreme Court in
the case of Minu Kumari and another
Vs. State of Bihar and others [2006 (55)
ACC 541] has held that all Courts
whether civil or criminal, possess in the
absence of any express provision, as
inherent in their constitution, all such
powers as are necessary to do the right or
to undo wrong in the course of
administration of justice on the principle,
"quando
lex
aliquid
alicui
conceditconcedere videtur et id sine quo
res ipsae esse non potest (when the law
gives a person anything it gives him that
without which it cannot exist). It is also
observed by Hon'ble Apex Court that it is
neither possible nor desirable to lay down
any inflexible rule, which would govern
the exercise of inherent jurisdiction and
no legislative enactment dealing with
procedure can provide for all cases that
may possibly arise. Courts, therefore,
have
inherent
powers
apart
from
expressed provisions of law, which are
necessary
for
proper
discharge
of
functions and duties imposed upon them
by law.
17. Therefore, having regard to the
observations made in the cases referred to
above, the order dismissing criminal
revision in default or non prosecution as
well as the order deciding the revision on
merit in absence of any or both parties can
be recalled in exercise of inherent powers
not only by the High court, but by the
Court of Session also.

18. For the reasons mentioned
herein-above,
the
restoration/recall
application dated 20.07.2007 is allowed
and order dated 30.03.2007 dismissing the
criminal revision no. 4693 of 2006 for
non prosecution is hereby recalled, but
interim order dated 24.08.2006 will not
automatically be restored.

19.

List the revision before
appropriate Bench for final hearing in the
next cause list.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.11.2008

BEFORE
THE HON'BLE VIJAY KUMAR VERMA, J.

Crl. Misc. Application No. 33133 of 2008

Abdul Aziz and others

...Applicants
Versus
State of U.P. & another ...Opposite parties

Counsel for the Applicants:
Sri Shahabuddin

Counsel for the Opposite Parties:
A.G.A.

Code of Criminal Procedure-Section 482Order
passed
by
Magistrate
under
Section
156
(3)-directing
the
S.O.
concern to register and investigate the
same-whether can be challenged by