Report No. 141

3.7. A Madras case: Dismissal of appeal by High Court: no judgment.-

In a Madras case1, the appellant, who was convicted of contempt by a special Magistrate, filed an appeal before the High Court, against his conviction and sentence. The appeal was dismissed as time-barred by the Vacation Judge. The appellant, presumably in ignorance of this fact, presented another appeal on the reopening of the court through counsel. On an objection having been raised, the second appeal was held to be not maintainable.

During the course of discussion, the power of the High Court to order the restoration of a case dismissed in default was also examined and it was held by the High Court that when a criminal appeal or a criminal revision petition is dismissed without hearing, there is no "judgment" at all and the Judge or the Bench which disposed of the matter for default, of appearance could rehear the matter. The case was decided under the code of 1898. In the present Code even an alteration of a 'final order' is barred by section 362.

1. K. Kunhammad Haji v. Emperor, AIR 1923 Mad 426 (432, 433) (Oldfield and Devadoss, JJ.).