Report No. 233

(iii) Rule .-

"Decree against plaintif by default bars fresh suit.- (1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of 11action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his nonappearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit. ... ."

1.9 When provisions have been provided to restore a suit which has been dismissed on the ground of absence of plaintiff, similar provisions need be provided under the CrPC also.

1.10 In the absence of such provisions under sections 249 and 256, the complainants have to move the High Court under criminal revision where the accused has been discharged or in appeal against acquittal where the accused has been acquitted. By adding provisions for restoration of complaints, the burden on the High Courts will be lessened. Inherent power of subordinate courts

1.11 The subordinate criminal courts have no inherent powers.1 The formula "interest of justice" is not available to the subordinate criminal judiciary beyond the frontiers of the statutory provisions and does not enable entry into the corridor of investigation.2 However, courts exist for dispensation of justice and not for its denial for technical reasons when law and justice otherwise demand.

Even though inherent power saved under section 482, CrPC is only in favour of High Courts, the subordinate criminal courts are also not powerless to do what is absolutely necessary for dispensation of justice in the absence of a specific enabling provision provided there is no prohibition and no illegality or miscarriage of justice is involved. All the criminal courts are having such an auxiliary power subject to restriction which justice, equity, good conscience and legal provisions demand provided it will not unnecessarily prejudice somebody else.3

A Division Bench of the Kerala High Court has in In the matter of State Prosecutor4 held that the subordinate courts have the inherent power to act ex debito justitiae (in accordance with the requirement of justice) to do the real and substantial justice for which alone they exist. The absence of any reference to any other criminal court in the said provision does not necessarily imply that such courts can in no circumstances exercise inherent power. Courts may act on the principle that every procedure should be understood as permissible till it is shown to be prohibited by law.

1. Tulsamma v. Jagannath, 2004 Cr LJ 4272.

2. State of Kerala v. Vijayan, 1985 (1) Crimes 261.

3. Madhavi v. Thupran, 1987 (1) KLT 488.

4. 1973 Cr LJ 1288.

1.12 Section 482 of the CrPC closely resembles Section 151 of the CPC. In order to seek interference under the said section three conditions should be fulfilled: (1) the injustice which comes to light should be of a grave character and not of a trivial character; (2) it should be clear and palpable and not doubtful; and (3) there exists no other provision of law by which the party aggrieved could have sought relief.1

1. Ram Narain v. Mool Chand, AIR 1960 All. 296; Janata Dal v. H. S. Chowdhary, AIR 1993 SC 892.

1.13 In Raj Narain v. State, AIR 1959 All 315 (FB), and In re, Biyamma1, it was held that a High Court can revoke, review, recall or alter its own earlier decision in a criminal revision and rehear the same by virtue of its inherent power reserved under the said section.

1. AIR 1963 Mysore 326.

1.14 The word 'process' is a general word meaning in effect anything done by the court. It includes criminal proceedings in a subordinate court. Therefore, power should be vested in the subordinate criminal courts to restore the complaint which was dismissed by default with a view to secure justice. Whenever the Magistrate is satisfied that it is necessary in order to secure the ends of justice, he should be able to interfere with his earlier order. The court which has the power to entertain a case and order notice and decide the case on merits should also have the power to correct an obvious error.

1.15 If a court finds that it delivered a judgment without hearing the party who was entitled to be heard himself or through his counsel which was necessary in the interest of justice, the court should be empowered to set aside the judgement and grant rehearing of the matter. It is true that there is no provision in the CrPC to the said effect. Nevertheless, in the interest of justice and the independence of the Judiciary, judges and magistrates should be at full liberty to discuss the conduct of persons before them either as parties or as witnesses. While exercising this power, courts should bear in mind that no person should be condemned without being heard.

1.16 However, the Supreme Court in A. S. Gauraya v. S. N. Thakur, (1986) 2 SCC 709, specifically ruled that the CrPC does not contain any provision enabling a Magistrate to exercise inherent power to restore a complaint by revoking his earlier order dismissing it for the non-appearance of the complainant.