Haji Sabajudoin Ahmed vs Banamali Das

K.N. Saikia, J.—Can a criminal revision petition dismissed by the High Court for default of appearance bo restored to file an application u/s 482 Code of Criminal Procedurer 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 (SIC) 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.

Mr. P.N. Goswami, the learned Counsel for the Petitioner, submits that the Petitioner''s Advooate Was quite unware 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 fiie 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:

Section 362 Code of Criminal Procedurer provides:

362, Court not to alter judgment-Save as otherwise provided ''bythis Code or by any other lew for the time being in force, no Court, when it has. signed its judgment or final-order disposing of a case, shall alter or review the same, except to correct a clerical or arithmetical error.

This Section corresponds to the old Section 369. It should be noted that the scope of the provision contained in the old Section has now been widened by including "final orders disposing of a case," in addition to "judgments". The Joint Committee of the Parliament in this respect observed:"The Committee is of opinion that the prohibition in this clause should apply to every final order disposing of a case and not merely to a judgment in a trial."

Mr. Goswami relying on Lal Singh and Others Vs. State and Others, 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 Vs. Ram Chander Agarwala and Others, their Lordships referred to AIR 1945 94 (Privy Council) 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 (SIC) Chopra''s case. In Sankatha Singh Vs. State of U.P., 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 Bindeshwari Prasad Singh Vs. Kali Singh, 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 u/s 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.

u/s 561A, which corresponds to present Section 482 Code of Criminal Procedure also the High Court had no power to review its judgment. In Smt. Sooraj Devi v. Pyare Lal 1981 Cri. L.J. 296 where the Appellant sought that the earlier order of the High Court directing restoration of the possession of the property to the Respondent be clarified by a declaration that it was not binding on her and did not affect her possession, and the Respondent disputed the allegations, it was held that the controversy could not be brought within the description "clerical or arithmetical error," and that the applicant, in fact, asked for an adjudication that the right to possession alleged by her remained unaffected by the earlier order. It was further held that the inherent power of the High Court also could not be invoked, as it could not be exercised for doing which was specifically prohibited by the Code.

It it true that the prohibition in Section 362 Code of Criminal Procedure against the Court altering or reviewing its judgment is subject to what is "otherwise provided by the Code or by any other law for the time being in force". These words, however, refer to those provisions only where the Court has been expressly authorised by the Code On other law to alter or review its judgment. The inherent power of the Court is not contemplated in Section 362. A clerical or airthmetical error is an error oocasioned by an accidental slip or omission of the Court. It represents that Which the Court never intended to say. It is an eror apparent on the face of the record and does not depend for its discovery on argument or disputation. An arithmetical error is a mistake, of calculation, and a clerical error is a mistake in writing or typing, Master Construction Co. (P) Ltd. Vs. State of Orissa and Another, The prohibition in Section. 362 against the Court altering or reviewing its judgment is subject to what is otherwise provided by the Code or by any other law for the time being in force. These words, however, refer to those provisions only where the Court has been expressly authorised by the Code or other law to alter or review its judgment. The inherent power of the Court is not contemplated by the saving provision contained in Section 362 and, therefore, the attempt to invoke that power can be of no avail. In Naresh and Others Vs. State of Uttar Pradesh, where exercising powers u/s 362 Code of Criminal Procedure the conviction u/s 302 I.P.C. was altered into one under Section, 304 Part I, I.P.C. by the High Court, the Supreme Court held that the alteration was not justified under Section. 362. Where the High Court sentenced the accused for life imprisonment for an offence punishable u/s 302 I.P.C. but subsequently changed the decision and sentenced the accused for offence punishable u/s 304 Part I of the I.P.C. in purported exercise of power under Section. 362, the exercise of the power was held to be unsustainable.

From the foregoing dicision as applied to judgment and final orders disposing of a case, the submission of Mr. Goswami cannot be accepted.

What will be the meaning of ''final order'' for the pur-pose of Section 362 ? A final order may surely be understood as distinguished from any interlocutory order. u/s 397(2) the powers of revision conferred by Sub-section (1) of that Section shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. Section 362 also may not apply to interlocutory orders. Does the expression "final order disposing of a case" imply in it the idea of an order passed on merit of the case ? Will it also include an order resulting in final ending of the case but not passed on its merit ? In other words, if an order of an administrative nature is passed which has nothing to do with the merits of the case, yet it resulted in bringing the case to an end, should it be within the purview of this Section ? Does dismissal of a case for default of appearance amount to disposal of a case ? Does the idea of disposal necessarily imply hearing of the parties and/or exercise of the judicial mind on the merits of the case ?

In Ram Dass Vs. State, where the criminal revision petition was dismissed for default, the court being under the misapprehension that no medical certificate of the applicant or illness slip of counsel was filed, while in fact both were on record, it was held that the Court could exercise its powers u/s 561A (of the old Code) and restore the case. No distinction was made in Section 561A, it was observed, between points of fact and points of law; where ex facie order passed by a Court was factually wrong and it had been passed under a misapprehension of fact, the provisions of Section. 561A could be applied and the order could be revised. The order of dismissal for default was, accordingly set aside and the case restored. In Ramautar Thakur and Others Vs. State of Bihar, Division Bench hold that on order of dismissal for default of a criminal revision application was not a ''judgment'', but a mere order, and on that ground Section. 369 would not bar the inherent jurisdiction of the High Court to pass an order of restoration, for the ends of justice in appropriate cases. Their Lordships referred to Rouben, J., in Lalla Ram v. Emperor wherein after consideration of all the cases for and against the above view his Lordship came to the conclusion that the bulk of authority appeared to be in support of the High Court''s power to restore a revision petition dismissed for default. This view was also accepted in Ganapat Kalyar v. Emperor wherein the criminal revision application, which had been dismissed for default, was restored. In Bibuty Mohun Roy v. Dasi Moni Dasi (1909) 3 Ind. Case 393 : 10 Cri. L.J. 287. It was held: "that the proposition that there is no inherent power of the Court to re-open a Rule, which has not been disposed of on a consideration of the grounds of the rule, cannot be sustained"; and their Lordships concluded ; "We hold, therefore, that we have jurisdiction to hear, to determine and to give a judgment in this case. We do re-hear it because it has never been heard nor do we review the judgment because no judgment has ever been given". The revision petition which had been dismissed for default was, therefore, restored and heard on merit. Similar view was taken by the Calcutta High Court in a case reported in AIR 1919 Cal. 409 observing: "where a case is disposed of merely for default of appearance or where an order is passed to the prejudice of an accused person and by mistake or Inadvertence no opportunity has been given to him to be heard in his defence such an order is not one to which the bar of Section 369 applied. References were also made to the Special Bench case of the Lahore High Court in AIR 1945 Lahore 130 where-it was held that the exercise of revisional urisdiction by the High Court was entirely discretionary, that an application for revision was entertained as a matter of favour, that no party entitled to be heard either himself or by pleader when the Court was exercising its revisional jurisdiction, and that, therefore, a dismissal of an application, for revision in limine tanta-mounted to a refusal by the Court to exercise Us revisional jurisdiction. This view appears to have been approved by the Supreme Court in U.J. S. Chopra (supra). Bhagwati, J. in that connection observed:"IN the case of an application for revision also the same may be dismissed summarily and without even hearing the party personally or by a pleader."

In Raj Narain and Others Vs. The State, the Full Bench (Mootham J. contra) held that the High Court had power to revoke, review, recall or alter its own earlier decision in a criminal revision and re-hear the same in cases falling under one or the other of the three conditions mentioned in Section 561(A). In Madlah v. State of Mysore AIR 1963 Mys 191 , discussing the scope and applicability of Section 369 and 561A of the Code of Criminal Procedure''(old) and relying on T.H. Hussain is Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another, it was held: "The inherent Power of a High Court cannot be exercised in matters specifically covered by the provision of the Code. Where the Code is silent about the power of the High Court in respect of any matter arising before it, It can pass suitable orders in exercise of its Inherent powers to give effect to any order passed under the Code, or to prevent the abuse of the process of any Court or to secure the ends of justice. This power can also be exercised to reconsider orders of dismissal of an appeal or application passed without jurisdiction or in default of appearance, where re-consideration is necessary to secure the ends of justice,". Accordingly the order which was passed for default of appearance of the Advocate and for his failure to pay the deficit court fee, was restored and the matter beard on merits. In T.H. Hussain v. M.P. Mondkar (supra) his Lordship Gajendragadkar, J., who delivered the judgment of the Court, laid down:This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code. It is only if the matter in question is not covered by any specific provisions of the Code that S. 561-A can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said section.

In the State v. Sova Rani Debi, 1973 Clr. L.J. 784 (CaL.), it as been held that for the purpose of Section 369 Code of Criminal Procedurer a distinction has to be made between an interlocutory order and a final order. In respect of a final order which does not amount to a judgment in a trial, Section 369 Code of Criminal Procedure would not in terms apply, but the general principles on which the section is based would be applicable and such final order cannot be altered or revieved by the Court which passed it or by any other court of co-ordinate jurisdiction. If the order is interlocutory, there is no bar for the Court which passes order to reconsider it.

In Smt. Prema Jain v. Sudhir Kumar Jain 1980 Cri. L.J. 80 (Del) an application for maintenance dismissed for default of appearance before evidence was recorded, was restored. It was held that the dismissal order was administrative in nature rather than a judicial one and the Magistrate had power to set aside the same and restore the application. The court observed that in that case no evidence whatever had been adduced and the stage of a passing a final order had not as such been reached and consequently no such order was actually passed. The mere fact that the order of the Magistrate bad the effect of consigning the petition for maintenance to the record room would not by itself be enough to clothe it with the attributes of a final order. In R.R. Verma v. T.N. Lalani 1980 Cri. L.J. NOC 5 (Del) , it has been held that discharging the accused for default of appearance of the complainant is not a final order as there is no bar under the Code for the Magistrate from entertaining a fresh complaint on the same facts and for the same offence. It is only when after examining the complainant or after taking some evidence the Magistrate exercises his judgment on the merits of the complaint and passes an order discharging the accused, It would be a final order within the meaning of S 362, which cannot be reviewed or altered. But an order dismissing the complainant for default of appearance of the complainant is neither a judgment nor a final order disposing of the case finally and, therefore, doss not fall within the mischief of S 362. In Madhu Limaye Vs. The State of Maharashtra, the following three principles were stated in relation to exercise of inherent powers of the High Court u/s 482, namely, (1) that the power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance; (ii) that it should be exercised very sparingly to prevent abuse of process of any Court or otherwise to secure the ends of justice; and (iii) that it should not be exercised as against the express bar of law engrafted in any other provision of the Code, Section 397(2) Code of Criminal Procedure was held to be no bar in revising an interlocutory order. In an appropriate case u/s 482 Code of Criminal Procedure Following it, in Raj Kapoor and Others Vs. State and Others, it was ruled in relation to S 397 Code of Criminal Procedurer that "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 jurisdication. The limitations is self-restraint, nothing more. The policy of the law is clear that Interlocutory orders, pure and simple, should not be taken up to the High Court resulting in unnecessary litigation and delay. At the other extreme, final orders are clearly capable of being considered in exercise of inherent powers, if glaring injustice stares the court at the face. In between is a tertium quld, as for example, where it is more than a purely interlocutory order and less than a final disposal".

From the forgoing decisions It may be deduced that an order of dismissal of a criminal revision petition for default of appearance may not be regarded as a final order disposing of a case, as envisaged in Section 362 Code of Criminal Procedure and as such, when one or more of the requirements of Section 482 Code of Criminal Procedurer are present, and where glaring injustice stares the Court at the face, such an order can be set aside and the petition restored and heard on merit by the High Court exercising powers u/s 482 Code of Criminal Procedure.

In our instant case the Impugned order was in the following language:

This case is being taken up from the list of Hon''ble Ali, J. as notified during recess. When the case is called, none appears to press this petition. It is accordingly dismissed for non-prosecution.

The order itself shows that the case was being taken up after recess from the cause list of Hon''ble Ali, J. as notified during the recess. When a case is taken Up in such a short notice it may be that the learned Counsel have missed the notice. In the restoration application. It is stated that the Petitioner''s Advocates had no knowledge of any such notice issued during the recess not they were informed by the office that the said item was to be taken up for hearing in another Court; and that to the circumstances the Petitioner''s Advocates could not appear in the case when it was taken up for hearing. The Petitioner''s Advocates has been following the list as published earlier. This is undoubtedly a reasonable explanation. In the impugned order there is nothing to indicate that the judicial mind of the Court was exercised on the merits of the case so as to clothe the order with the quality of a final order disposing of the case. In dismissing the revision petition for default without hearing the Petitioner''s counsel and without allowing him to argue on the grounds urged in the petition, in the absence of negligence, it may result in prejudice to him.

Under the above circumstances and for the reasons discussed above, I am inclined to take the view that the impugned order of dismissal for default may not be treated as a final order disposing of the case on merit and accordingly it is ordered that it be set aside and the case be restored to file in its original number, and be listed for hearing.If the lower court records have been sent back, they should be recalled forthwith.

This miscellaneous case is disposed of accordingly.