UMESH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) Heard the learned counsel for the petitioner and the respondent. This petition filed under Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.), seeking that the petitioner be enlarged on bail, was dismissed for default by an order dated 4/6/2013. It is thereafter that the present application to recall the order dated 4/6/2013 is filed. At the outset, it was noticed that, by virtue of Section 362 of the Cr.P.C., there was doubt expressed as to whether this court could review the order having dismissed the petition for default. In this regard, the learned counsel has placed reliance on two decisions of this court namely Madaiah Vs. State of Mysore, 1963 AIR(Mys) 191 and Ibrahimsab vs. Faridabi, 1986 ILR(Kar) 2251, to contend that that there is no bar to recall an order of dismissal for default though the inherent power of this 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, etc. Madaiah's case was decided relying on T.H. Hussain vs. M.P. Mondkar, 1958 AIR(SC) 376 and the observations of the Supreme Court to the following effect have been extracted:

(2.) More particularly, it is also seen that from the earliest point of time, there has been a consistent view as for instance in the case of Kunhammad Haji Vs. Emperor, 1923 AIR(Mad) 426 it has been held that when a criminal revision petition is dismissed for default of appearance, there is no decision on merits and therefore there is no proper disposal of it according to law and the court may re-hear the same.

(3.) As also in the case of Raju and another Vs. Emperor, 1928 AIR(Lah) 462 it has been declared that there has never been an inherent power in the High Court to alter or review its own judgment once it has been pronounced or signed except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on merits.