HAJI SABAJUDOIN AHMED Vs. BANAMALI DAS

JUDGEMENT

(1.) CAN a criminal revision petition dismissed by the High Court for default of appearance be restored to file an application under Section 482 Code of Criminal Procedure despite the provisions of Section 362 Code of Criminal Procedure. Criminal Revision No. 336/81 was cause listed in Court No. 6 from 7th to 10th June as item No. 49. On 10th June by a notice issued during the recess some of the cases, Including item No. 49, were transferred to and taken up in Court No. 4 after recess as notified. As none appeared to press Criminal Revision application No. 336/81 when called, it was dismissed for default. In this application, supported by an affidavit, the Petitioner prays for its restoration.

(2.) MR . P.N. Goswami, the learned Counsel for the Petitioner, submits that the Petitioner's Advocate Was quite unaware of the notice of transfer of cases issued on 10.6.82 during the recess, and was following the cause list in Court No. 6; that the Petitioner had been contesting the case with all seriousness and the order of dismissal for default has seriously prejudiced him; and that Section 362 Code of Criminal Procedure is not applicable to High Court judgment; and he Prays that the petition be restored to file and heard on merits.Mr. S.C. Das, the learned Counsel for the opposite party demurs submitting that the order of dismissal for default is an order disposing of the case and this Court cannot alter or review the same in view of the provision of Section 362 Code of Criminal Procedure:

(3.) MR . Goswami relying on Lal Singh v. State : AIR 1970 P&H 32, submits that the rule of finality embodied in Section 362 in Chapter. XXVII of the Criminal Procedure does not, in terms, apply to revisional jurisdiction of the High Court and that the purpose of Section 362 Code of Criminal Procedure is not to prescribe a general rule of finality of all judgments of all criminal Courts but is only to prescribe finality for the judgment of the trial Court so far as the trial Court is concerned. In Lal Singh's case it was held that the old Section 369 in Chapter XXVI of the Code did not prescribe the general rule of finality of all judgments of all criminal Courts but only prescribed finality for the judgments of the trial Courts so far as the trial Court was concerned, relying on U.J. S. Chopra v. State of Bombay, AIR 1965 S.C. 633 where, considering the rule of finality of criminal judgments in the particular context of the provisions of Section 439 (2) and (6) of the Old Code, S.R. Das, J. (as he then was) in minority judgment,observed that there was indication in the Code itself that the purpose of Section 369 was not to prescribe a general rule of finality of all judgments of all criminal Courts but was only to prescribe finality for the judgment of the trial Court so for as the trial Court was concerned; and that the rule of finality could not in terms apply to the orders made by the High Court in exercise of Its revisional jurisdiction, for Section 442 (Section 405 of new Code) of the Code which required the result of the revision proceedings to be certified to the Court by which the finding, sentence or order revised was recorded or passed, referred to it as its 'decision or order' and not 'judgment'. In the majority judgment, however, it was held, inter alia, that the judgment pronounced in the exercise of its appellate or revisional jurisdiction after issue of notice and full hearing in the presence of both the parties would replace the judgment of the lower Court, thus constituting the judgment of the High Court, the only final judgment to be executed in accordance with law by the Courts below. The principle of merger should thus apply in the context of Section 439 Code of Criminal Procedure which conferred revisional jurisdiction on the High Court, In Shankar Ramchandra Abl.yankar v. Krishnaji Dattatraya Bapat, AIR 1970 S.C.I. it was held that where, on its revisional jurisdiction being invoked against the order of the appellate Court under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, the High Court dismissed the revision, after hearing both the parties, the order of the appellate court became merged with the order made in the revision, and thereafter the appellate order could not be challenged or attacked by another act of proceedings in the High Court under Article 226 or 227 of the Constitution and that the principle of merger of orders of inferior Courts would not become affected or inapplicable by making any distinction between a petition for revision and appeal. In State of Orissa v. Ram Chander Agarwala, : AIR 1979 S.C. 87=1979 Cri. L.I. 1416, their Lordships referred to Lala Joyramdas v. Emperor, : AIR 1945 P.C. 94 wherein the Privy Council expressed the view, that alteration by the High Court of its judgment was prohibited by Section 369 of the Code; and observed that was not brought to notice of S.R. Das, J. in U.J. S. Chopra's case. In Sankatha Singh v. State of U.P. : AIR 1962 S.C. 1208 also; Supreme Court agreed with the view that the appellate Court had no power to review or restore an appeal. Once a judgment had been pronounced by the High, Court either in exercise its appellate or revisional jurisdiction, no review or revision could be entertained against that judgment as there was no provision in the Act which would enable the High Court to review it. In Biindeswari Prasad Singh v. Kali Singh 1978 Cri. L.J. 187= : AIR 1977 SC 2432 it was observed that there was absolutely no provision in the Code of Criminal Procedure of 1898 empowering a Magistrate to review or recall an order passed by him. Code of Criminal Procedure did contain a provision for inherent powers, namely, Section 561A which, however, conferred those powers on the High Court and the High Court alone. Unlike Section 151 of the Code of Civil Procedure, the subordinate criminal courts had no inherent powers. In that case a complaint was dismissed under Section 203 Code of Criminal Procedure (old) on the ground that the complainant was absent and did not show any interest in the inquiry ordered by the Court. It was held that in fact after having passed the order the Sub -Divisional Magistrate became functus officio and had no power to review or recall that order or any ground whatsoever. Under those circumstances therefore, the order even if there was one, recalling order dismissing the complaint, was entirely without jurisdiction. All subsequent proceedings following upon the re -calling of the order were held to be nullity and destitute of any legal effect. The High Court's order maintaining a subsequent order on the proceedings taken cognizance and issuing process was also set aside.