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Judgment
Chandrasekhara Menon, J.—This matter comes up on a reference by one of us. There I had said:
I had disposed of the Criminal Revision Petition on 23rd August, 1982. At the time of hearing the counsel for the petitioner was absent. But I looked into the records and found that there was no reason to interfere with the order impugned.
In the affidavit in support of this petition, the counsel for the petitioner has explained his absence. I have no hesitation in accepting his explanation and therefore it was for reasons beyond his control he happened to be absent. I had directed that the Crl.M.P. be posted along with the other records in the Crl.R.P. so that if the Crl.M.P. could be allowed, the Crl.R.P. could be reheard immediately and orders passed.
However, Mr. M. C. Nambiar, learned counsel for respondent raised an objection regarding the maintainability of Crl.M.P. in the light of a decision of this Court reported in 1980 KIT 13. Justice Narayana Pillai in that case relying on Sankatha Singh Vs. State of U.P., and State of Orissa Vs. Ram Chander Agarwala and Others, has held 1970 KLT 495 and 1977 KLT 840 which decisions had held that if a petition is disposed of without hearing the opposite party it can be reopened and reheard or reviewed, cannot be taken to lay down the correct law. I think a Division Bench of this Court should consider the scope and ambit of the decisions of the Supreme Court in Sankatha Singh Vs. State of U.P., and State of Orissa Vs. Ram Chander Agarwala and Others, . Therefore, this petition is referred to a Division Bench.
Accordingly the matter has come before us.
After hearing counsel on both sides, we think it is necessary that the Crl. R.P. should be reheard. The earlier order dismissing the same was really disposal for default. The counsel for the petitioner was absent, and without delay after the order was dictated counsel came and submitted that he was not able to. be present on account of reasons beyond his control. As has been stated in the order of reference, the counsel for the petitioner had explained his absence and the court was inclined to accept his explanation.
In Madhu Limaye Vs. The State of Maharashtra, the Supreme Court has exhaustively discussed and delineated the law regarding inherent powers of High Court in criminal matters. For the purpose of securing the ends of justice if interference by the High Court is necessary, nothing said in any other provision will limit or affect the exercise of that inherent power. No doubt the High Court should exercise that power only very sparingly. There is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court''s jurisdiction. The limitation in respect of the inherent power is self-restraint, nothing more.-- see Raj Kapoor and Others Vs. State and Others, . In Shyam Sunder Vs. State of Rajasthan, the Supreme Court said in respect of an appeal dismissed for default by the High Court that although the High Court had given reasons for dismissing the appeal the fact remains that as the accused was not represented the possibility of the appellant having persuaded the High Court to take a different view cannot be reasonably excluded. In this view the Supreme Court allowed the Criminal Appeal filed before it, set aside the judgment of the High Court and remanded the appeal back to the High Court for disposal in accordance with law after hearing the parties. For the purpose of securing the ends of justice it is necessary that the Criminal Revision should be heard afresh. Therefore this petition is allowed. The Criminal R.P. will be posted again for hearing.