HIGH COURT OF CHHATTISGARH AT BILASPUR
SINGLE BENCH
:HON'BLE SHRI JUSTICE SANJAY K. AGRAWAL
Cr.M.P. No. 766 of 2014
APPLICANTS
: Laxmi Prasad Soni & another
VERSUS
NONAPPLICANT
: State of Chhattisgarh
Application under Section 482 of code of Criminal Procedure
Present :
Shri Dharmesh Shrivastava, counsel for the applicants. Shri DK Gwalre, Public Prosecutor/Govt. Advocate for the State.
ORAL ORDER
(Passed on 21.11.2014)
1.
The applicants are facing trial for commission of offence punishable under Section 498A/34 of IPC. The criminal court framed charges against them on 28.10.2013 which was challenged by the applicant by way of criminal revision registered as criminal revision No. 35 of 2014. The said revision was fixed for hearing on 03.07.2014. On that day, the revision was dismissed for want of prosecution by the Additional Sessions Judge, Korba, holding that when the matter was called on for hearing, noneappeared on behalf of applicants to prosecute the revision. 2.
Thereafter, the applicants filed an application for recalling of order dated 03.07.2014 which was also dismissed on 27.07.2014 holding that there is no provision in the Code of Criminal Procedure for recalling of order. 2
3.
The applicants herein are challenging dismissal order of revision as well as refusal to recall dismissal order of revision stating that criminal revision could not have been dismissed in default and further, the order dismissing revision in default is not a judgment within the meaning of Section 362 of Cr.P.C. and therefore, there is no bar to recall that order, and as such, orders dated 03.07.2014 and 27.07.2014 be set aside and revision be restored to its original number. 4.
Urging for the applicants, Shri Dharmesh Shrivastava, learned counsel would submit that learned Additional Sessions Judge was absolutely unjustified in dismissing duly admitted criminal revision for want of prosecution which was listed for final hearing and further unjustified in declining to recall said order dismissing revision in default as the revision was not decided on merit and bar under Section 362 of Cr.P.C. would not apply, and therefore, impugned orders deserve to be set aside. 5.
Urging for the State, Shri DK Gwalre, learned public prosecutor countering the submission made by Shri Shrivastava would submit that revisionist has no right to be heard in view of Section 403 of Cr.P.C. it is for the court to exercise revisional jurisdiction to hear any party either personally or by pleader, and as such, impugned order is not supportable in law. 6.
I have heard the counsel appearing for the parties and perused the order impugned. 7.
It is not in dispute that revision filed by the applicants questioning the order framing charge was already admitted and on 03.07.2014 the same was listed for final hearing. On 03.07.2014 neither applicants nor their counsel appeared before the 3
court to prosecute the revision. 8.
The point for adjudication in this petition under Section 482 of Cr.P.C is whether learned Additional Sessions Judge was justified in dismissing the revision petition in default without deciding the revision on merits. 9.
Their Lordships of Supreme Court in case of Bani Singh & Others v. State of UP 1, it has been held that criminal appeal should not be dismissed in default and should be decided on merits. If despite notice neither appellants nor their counsel is present, the court should decide the appeal on merits. 10. The above proposition of law has been reiterated in case of Parasuram Patel and Another v. State of Orissa2.
11. The question as to whether criminal revision can be dismissed in default came directly to be considered in case of Madan Lal Kapoor v. Rajiv Thapar and Others3, in which their Lordships of Supreme Court has clearly held that rule laid down by Supreme Court that criminal appeal cannot be dismissed for default also applies to criminal revision, and held as under : “4. The matter relates to administration of criminal justice. As held by this Court, a criminal matter cannot be dismissed for default and it must be decided on merits. Only on that ground the appeal deserves to be allowed. 7. In Parasuram Patel v. State of Orissa, the Supreme Court held that a criminal appeal cannot be dismissed for default.
8. In our opinion the same reasoning applies to criminal revision also, and hence a criminal revision cannot also be dismissed in default.” 1
1996 (4) SCC 720
1994 (4) SCC 664
3
2007 (7) SCC 623
2
4
12. In view of abovestated crystallized legal position of law, it is quite clear that criminal revision cannot be dismissed in default as it relates to administration of justice, it must be decided on merits. 13. This determination brings me to the next question to be addressed whether the order dated 03.07.2014 dismissing the revision in default is a judgment within the meaning of Section 362 of Cr.P.C. so as to bar recall of that order?
14. The Division Bench of High Court of Patna in case of Ramautar Thakur and Others v. State of Bihar4 has clearly held an order of dismissal of default is not a judgment within the meaning of Section 362 of Cr.P.C. by stating as under: “18. 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. 24. I would, therefore, hold that an order of dismissal for default, or a criminal revision application is not a judgment, but a mere order and, therefore, on this ground also Section 369 of Cr.P.C. will not bar the inherent jurisdiction of the High Court to pass an order of restoration for the ends of justice, in appropriate cases.” 15. In Asit Kumar Kar v. State of West Bengal5,the Supreme Court has pointed out distinction between Recall and Review of the order by holding as under:
“6.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 4
1957 Cri.L.J. 82
2009 (5) SCC 703
5
5
which was passed without giving an opportunity of hearing to an affected party.”
16. The principles of law laid down in Asit Kumar (Supra) has been reiterated and followed by the Supreme Court in case of Vishnu Agrawal v. State of Uttar Pradesh and Another6. 17. On the basis of aforesaid discussion, it is held that once a criminal revision is admitted and records of the court below are called for examining the correctness or otherwise of the order sought to be revised, there is no justification for said court to dismiss the criminal revision for default as it relates to administration of justice and in view of the rule laid down by the Supreme Court in Madan Lal Kapoor (Supra) and it must be decided on merits. 18. It is further held that the order dismissing the criminal revision for default is not a judgment within the meaning of Section 362 of Cr.P.C. and it is an “order” only, and therefore, section 362 of Cr.P.C. will not bar the inherent jurisdiction of this court to pass an order of recall/restoration of criminal revision for the ends of justice in an appropriate case. 19. As a upshot and on the basis of forgoing discussion, the order passed by the court of sessions, dismissing the criminal revision for default, and order dismissing recall of order of dismissal are unsustainable in law and deserve to be set aside. 20. As a fallout and consequence to that, this petition under Section 482 of Cr.P.C. is allowed and impugned orders dated 03.07.2014 and 21.07.2014 (Annexure A/1 Collectively) are quashed. Criminal Revision No. 35/2014 (Laxmi Prasad Soni & Others v. State of 6
2011 (14) SCC 813
6
Chhattisgarh & Others) is hereby restored to its original file of Additional Sessions Judge, Korba, for hearing and disposal on merits in accordance with law expeditiously. Judge
inder 7
HEAD NOTE
Criminal revision relates to administration of criminal justice. It must be decided on merits, not on defaults. QkStnkjh iqujh{k.k QkStnkjh U;k; iz'kklu ls lacaf/kr gS ftls ;kfpdkdrkZ dh
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(INDRAJEET SAHU)
P.S. to His Lordship
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