K. NITHIYANANDAN Vs. B. RADHAMANI

JUDGEMENT

(1.) This is an application filed by a husband who was the respondent in M.C. No. 47/77 on the file of the Sub Divisional Judicial Magistrate, Adoor, to quash an order passed by the Court of Session, Quilon, dismissing Crl. R.P. No. 142/78 filed by him.

(2.) The learned advocate appearing for the petitioner strongly assailed this order on the ground that this is a laconic order not giving any reason and that there is no provision in the Code of Criminal Procedure which warrants dismissal of a revision application on the ground of default of either the party or the advocate appearing for him, without going into the merits of the case. The counsel argued that although the revision is a matter of favour and not a right conferred on a party and when once court has taken notice of the matter and the entire records were before it, it was the duty of the revisional court to peruse the records and pass appropriate orders. He also argued that there is no power vested in a criminal court to dismiss an appeal for default of the party or the advocate appearing for him and that the same principle should apply to revision petition also.

(3.) The learned advocate appearing for the first respondent justifying the order of dismissal submitted that it cannot be said that the court has no power to dismiss a revision or an appeal on the ground of absence of the petitioner or the appellant or the counsel appearing for them, although such an order will be illegal. The counsel also submitted that in this case it cannot be said that it is a case of dismissal for default; but it has to be presumed that this is an order passed on merits. The further argument advanced on behalf of the 1st respondent was that no useful purpose will be served by sending back this petition to the court below as the order passed by the magistrate on the main petition filed under S.125 Criminal Procedure Code awarding maintenance to the wife and minor child of the petitioner has become final.