RAMAUTAR THAKUR Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application under Section 561A, Criminal P. C., for restoration of Cri. Revu. No. 198 of 1956, which stood dismissed for default on 17-2-1956, by virtue of this Court's order dated 10-211956, arises in the following circumstances:

(2.) The petitioners filed a criminal revision application in this Court, challenging their convictions and the sentences passed upon them, on 10-2-1956, without a copy of the judgment of the trial Court. On the 10th February, one week's peremptory time was allowed for filing a certified copy of the trial Court's Judgment, failing which the revision application was to stand dismissed without 'any further reference to a Bench. The trial Court's judgment not having been filed within the peremptory time allowed by this Court, the criminal revision application filed by the petitioners stood dismissed for default on 17-2-1956, by virtue of the above. On 20-2-1956, that is, four days after the expiry of the peremptory date for filing the trial Court's Judgment the petitioners filed the present application for restoration of the criminal revision, and, for condoning the delay in filing the trial Court's judgment, which was filed along with this application, and for accepting it. This matter came up before us on 27-2-1956, when we admitted the application, issued a rule in the case, and directed it to be registered separately as a Criminal Miscellaneous case. The rule has now come for hearing and final disposal before us.

(3.) Mr. Ashwini Kumar Sinha in support of the rule has contended that as the criminal revision application was dismissed for default, this Court has got the power to restore the case, because such an order of dismissal for default is not a judgment, to which Section 369, Criminal P. C. is attracted. In support of his contention, he has relied on a number of authorities of different High Courts including some unreported decisions of this Court. The cases relied upon are : Cri Revn. No. 531 of 1941 Bishundhari Gope v. Emperor, decided by Agarwala J., on 31-7-1941 reported in 1941 Pat WN 622 (A); Cri. Misc. No. 336 of 1944, Lalla Ram V. Emperor decided by Reuben J., on 4-9-1944 (B); Cri. Revn. No. 427 of 1945, Ganpat Kaiyar v. Emperor, decided by Das J., on 27-11-1945 (C), relying on the decision of Reuben J., in Cri. Misc. No. 336 of 1944 (B), just mentioned; Cri. Revn. No. 36 of 1951 Moti Tanti v. The State decided by Reuben J., on 8-11-1951 (D); Bibuty Mohan Roy v. Dasimoni Dasi, 3 Ind Cas 393: 10 Cal LJ 80 (E); Kunhahamad Haji v. Emperor, AIR 1923 Mad 426: ILR 46 Mad 382 (F); Ibrahim v. Emperor, AIR 1928 Rang 288 (G); Kishen Singh v, Girdhari Lal, AIR 1924 Lah 310 (H) and Rajab Ali v. Emperor, ILR 46 Cal 60 : (AIR 1919 Cal 409) (I). The ratio decidendi of these cases is that Section 369 of the Code is no bar to the restoration of criminal revision application dismissed for default, because such an order of dismissal for default is not a 'judgment' within the meaning of Section 369 of the Code. Mr. Sinha has also referred us to the recent decision of the Supreme Court in U. J. S. Chopra v. State of Bombay, (1955) 2 SCR 94 : ( (S) (AIR 1955 SC 633) (J).