BHANU Vs. VILASINI

JUDGEMENT

(1.) This is a petition filed by counsel for the first respondent in Crl. R. P. No. 131 of 1978 for restoration to file and rehearing of the Revision Petition which was disposed of by me. The ground mentioned is that the revision petition was disposed of without hearing him and that he was prevented by sufficient cause from appearing in court on the date the case was posted and heard.

(2.) In my judgment, sorry as I am for the petitioner, this petition must fail for reasons which follow. There is no power for disposal of cases for default and consequently for restoration and rehearing of those cases conferred on courts by the provisions of the Criminal Procedure Code. A comparison of the provisions of the Civil and Criminal Procedure Codes would clearly bring out the difference in the powers of the Civil and Criminal Courts in this regard. Under O.41 R.17 of the Civil Procedure Code on the day fixed for the hearing of an appeal if the appellant does not appear, the court is empowered to pass an order dismissing the appeal and if the appellant appears but the respondent does not appear to hear the appeal ex parte and dispose of the same. As both those cases are disposals for default power to restore the appeal and rehear the same is conferred by R.19 and 21 of O.41. There are no corresponding provisions in the Criminal Procedure Code. S.386 of the Criminal Procedure Code deals with the powers of the appellate Court. It has no power to decide an appeal for default of appearance of any party. If the appeal is not summarily dismissed under S.384 of the Criminal Procedure Code then the appellate court should on the date fixed for hearing peruse the records under S.386 of the Code and if the parties or their counsel appear, hear them. While perusal of records is peremptory hearing of parties or their counsel is dependent on their being present. Consequently as regards appeals every disposal is on merits and no disposal is for default. That is why no provision is made in the Criminal Procedure Code for restoration and rehearing of appeals even if the disposal of those appeals on the date of hearing was without hearing the parties and they were prevented by sufficient cause from appearing in court on that day.

(3.) The powers of the revisional court in this regard are not different. S.397 to 401 of the Criminal Procedure Code deal with revision. Clause (2) of S.401 which deals with the powers of revision of the High Court provides that no order under that section should be made to the prejudice of the accused or other person unless he had an opportunity of being heard either personally or by pleader in his own defence. The affording of an opportunity is different from the availing of that opportunity. A party would get an opportunity for being heard if he is given notice of the case and the posting His being not present at the time of hearing is his not availing of that opportunity. There is no power conferred on the court by the provisions of the Criminal Procedure Code for restoration of revision petitions which have been disposed of, also.