# Parvez Khan v. State of U.P. & Anr

- **Citation:** (2025) 12 ILRA 1282
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-01
- **Case number:** Application U/S 482 No. 18737 of 2023
- **Bench:** Tej Pratap Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/parvez-khan-v-state-of-u-p-anr-52808
- **Pages:** 10

## Text

1282 INDIAN LAW REPORTS ALLAHABAD SERIES
application, if filed, expeditiously and
decide the same solely on its own merits,
without being influenced by any of the
observations made in this Order, and the
records shall be remitted to the court
concerned forthwith to ensure formal
compliance with this order by the registry.
---------
(2025) 12 ILRA 1282
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 01.12.2025

BEFORE

THE HON'BLE TEJ PRATAP TIWARI, J.

Application U/S 482 No. 18737 of 2023

Parvez Khan ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

ISSUE FOR CONSIDERATION
Whether a petition under Section 482 Cr.P.C.,
dismissed for want of prosecution, can be
restored to its original number and status.

Whether the prohibition under Section 362
Cr.P.C. applies to such dismissal orders.

HEADNOTES
Indian Penal Code (IPC) - Sections 420,
464, 467, 468, 471, 386, 120B

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 353, 362,
465, 482 - Application under Section
482
CrPC
-
dismissed
for
want
of
prosecution
-
restoration
and
recall
application filed - opposite party no. 2
opposed
restoration
application
on
the
ground of section 362 Cr.P.C. - court
observed that, order of dismissed in default
is not a "judgment" within the meaning of
Section 362 Cr.P.C. and inherent powers of
the High Court can be exercised to recall or
restore such petitions to secure the ends of
justice - further, Party should not suffer for
inadvertence or fault of counsel - held,
dismissal in default cannot bar restoration,
and Section 362 Cr.P.C. prohibition applies
only to alteration or review of judgments on
merits, not to orders of dismissal in default -
hence, Recall application maintainable when
absence is bona fide and not intended to
delay proceedings - as such, order dated
30.05.2024 recalled and petition restored to
its original number and status.(Para - 18,
19, 20, 21, 22, 23, 24)
Restoration Application Allowed. (E-11)

CASE LAW CITED
Vishnu Agarwal v. State of U.P., 2011 (74)
ACC 609 (SC) - Asit Kumar Kar v. State of
West Bengal, (2009) 1 SCC (Cri) 851 - Ram
Naresh Yadav v. State of Bihar, 1987 Cri. L.J.
1856; AIR 1987 SC 1500 - Rafiq v. Munshi
Lal, AIR 1981 SC 1400 - Raghuvera v. State
of U.P., 1990 Cri. L.J. 2735 (All.) - Ramautar
Thakur v. State of Bihar, AIR 1957 Patna 33;
1957 Cri. L.J. 82 - Hari Singh Mann v.
Harbhajan Singh Bajwa, 2001 SCC (Cri) 113 -
State of Punjab v. Davinder Pal Singh
Bhullar, 2012 Cri. L.J. 1001 (SC).

LIST OF ACTS
Code of Criminal Procedure, 1973

LIST OF KEYWORDS
Recall of order - Restoration of petition -
Dismissal for default - Inherent powers of
High Court - - alter or review judgment -
Errors & omissions - vitiate proceedings -
Ends of justice - Opportunity of hearing -
Judgment - Order.

CASE ARISING FROM
Restoration/Recall Application - filed for recall of
- order dated 30.05.2024 passed in - Criminal
Misc. Case (U/s 482 Cr.P.C.) No. 18737 of 2023
(Parvez Khan v. State of U.P. and another).

APPEARANCE OF PARTIES
Counsel for Appellant: - Sri Sunil Kumar,
Counsel for Respondent: - Sri Desh Ratan
Chaudhary, AGA.

(Delivered by Hon'ble Tej Pratap Tiwari, J.)

Ref : Crl. Misc. Application for
Restoration of the application and the
Recall of the order dated 30.05.2024
12 All. Parvez Khan Vs. State of U.P. & Anr.
1283

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. 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.
1284 INDIAN LAW REPORTS ALLAHABAD SERIES

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."

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. 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
12 All. Parvez Khan Vs. State of U.P. & Anr.
1285
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."
1286 INDIAN LAW REPORTS ALLAHABAD SERIES

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. 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.
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
12 All. Parvez Khan Vs. State of U.P. & Anr.
1287
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 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. 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
1288 INDIAN LAW REPORTS ALLAHABAD SERIES
Madras High Court in Re Chinna Kaliappa
Goundan, ILR 29 Mad 126 (Q), of the
Bombay High Court in Emperor v. Nandial 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. 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. 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
12 All. Parvez Khan Vs. State of U.P. & Anr.
1289
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)
1290 INDIAN LAW REPORTS ALLAHABAD SERIES

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.
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, 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.
12 All. Vishwa Bandhu Vs. State of U.P. & Ors.
1291

26. The order dated 30.05.2024 is
recalled. The petition is restored to its
original number and status.
---------
(2025) 12 ILRA 1291
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 03.12.2025

BEFORE

THE HON'BLE JITENDRA KUMAR SINHA, J.

Application U/S 482 No. 22266 of 2024

Vishwa Bandhu ...Applicant
Versus
State of U.P. & Ors. ...Opposite Parties

ISSUE FOR CONSIDERATION
Whether an application under section 528
BNSS/482 Cr.P.C. is maintainable for quashing
the FIR.

HEADNOTES
Indian Penal Code (IPC) - Sections 420,
464, 467, 468, 471, 386, 120B

Criminal
Law
-
Code
of
Criminal
Procedure, 1973 - Section 156(3), 162,
482, - Indian Penal Code (IPC) - Sections
420, 464, 467, 468, 471, 386, 120B, -
Bharatiya Nagarik Suraksha Sanhita, 2023
- Section 528, - Constitution of India -
Article 226, 227 - Application under Section
482 CrPC - filed for quashing of FIR - offences
under Sections 420, 467, 468, 471 IPC -
allegations regarding forged power of attorney
and fraudulent sale deed - investigation initiated
pursuant to order under Section 156(3) CrPC -
applicant pleaded that two FIRs cannot be
lodged for the same offences and civil dispute
cloaked as criminal case - opposite party raised
objection of maintainability citing Ram Lal Yadav
- chargesheet already filed but not placed on
record along with cognizance order - Court
examined scope of quashing under Article 226
and Section 528 BNSS in light of Pradnya Pranjal
Kulkarni - Court held that without placing the
chargesheet and cognizance order on record,
FIR cannot be quashed under Section 528 BNSS
- accordingly, application is dismissed as not
maintainable. (Para - 12, 13, 18)
Application Dismissed. (E-11)

CASE LAW CITED
T.T. Antony v. State of UP, (2001) 6 SCC 181 -
Sheila Sebastian v. R. Jawaharraj, (2018) 7 SCC
581 - G. Sagar Suri v. State of U.P., (2000) 2
SCC 636 - Usha Chakraborth v. State of West
Bengal, 2023 SCC OnLine SC 90 - Paramjeet
Batra v. State of Uttarakhand, (2013) 11 SCC
673 - Ram Lal Yadav v. State of UP, 1989 APLJ
(Cri) 107 - Pradnya Pranjal Kulkarni v. State of
Maharashtra, SLP (Crl.) No. 13424 of 2025
(decided 03.09.2025), - Writ - C No. 2972/2022
decided on 23.05.2022 (Neutral Citation NO.
2022:AHC-LKO:27578).

LIST OF ACTS
Code of Criminal Procedure, 1973 - Bharatiya
Nagarik Suraksha Sanhita, 2023 - Constitution
of India - Indian Penal Code (IPC).

LIST OF KEYWORDS
Quashing of FIR - Duplicate FIR - Abuse of
process - Civil dispute vs. criminal offence -
Forged power of attorney - Sale deed dispute -
Maintainability of application - Cognizance and
chargesheet - Article 226 jurisdiction - Section
528 BNSS.

CASE ARISING FROM
Case Crime No. 192 of 2024 arising out from -
FIR No. 192/2024, dated 14.06.2024, P.S. - Civil
Lines, District - Meerut.

APPEARANCE OF PARTIES
Counsel for Appellant: - Sri Alok Saxena,
Counsel for Respondent: - Sri Sunil Kumar
Mishra, Sri S.B. Singh AGA.

(Delivered by Hon'ble Jitendra Kumar
Sinha, J.)

1. Heard Mr. Alok Saxena, learned
counsel for the applicant and Mr. Sunil Kumar
Mishra, learned counsel for the opposite party
no. 2 and Sri B.P. Singh, learned AGA for the
State respondents and perused the affidavit filed
in support of this application.