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Report No. 141

3.9. A Rajasthan case regarding dismissal of revision.-

In a Rajasthan case,1 the criminal revision petition was listed for admission on January 17, 1951, on which date neither the petitioner nor his counsel was present and consequently the petition was dismissed in default. It was held by the Rajasthan High Court as under:-

"So far as the question of restoration, strictly so called, is concerned, there is no provision in the Code of Criminal Procedure which empowers a Criminal Court to restore a criminal case once it has been finally decided. The power of restoration has to be specifically conferred, as in the case in the Code of Civil Procedure before it can be examined by a court".

It is, however, the duty of the Court on the criminal side to decide a criminal matter on the merits whether a party or his pleader is present or not and though there can be no restoration in a criminal case, the High Court has the power under section 561A to make such orders as are necessary in the interests of justice. Thus, where a criminal revision is dismissed for default without going into its merits and there is no fault on the part of the applicant's lawyer who was waiting in the Court in which the case was listed, the High Court should exercise its power under section 561A to secure the ends of justice so that the revision may be disposed of after considering the grounds raised."

It was further directed that on the failure of the petitioners to file the copy of the judgment within the stipulated time, the revision petition was to stand dismissed without any further reference. Since the petitioners did not file the certified copy of the judgment within the time granted by the Court, their revision petition stood dismissed for default after the expiry of the stipulated period.

On an application for restoration having been made, the Patna High Court held that section 369 of the Code of Criminal Procedure, 1898 corresponding to section 362 of the Code of Criminal Procedure, 1973 Was no bar to the restoration of the criminal revision dismissed for default because such an order of dismissal on default was not a "judgment" within the meaning of section 369 of the Code of Criminal Procedure, 1898.

It was further held that the Court, in exercise of its inherent powers contained in section 561A of the Code of Criminal Procedure, 1898 corresponding to section 482 of the Code of Criminal Procedure, 1973, could order the restoration of the revision petition dismissed for default in and appropriate case. It was also held that in a criminal revision, the High Court acts at its own discretion and its order dismissing the revision petition in default is within the jurisdiction since no petitioner has a right to be heard and the High Court is not compelled to interfere with a judgment brought to its notice unless it so thinks fit.

1. Keshav Lal v. Gaveria, AIR 1952 Raj 50 (51, 52), paras. 4 and 7 (Wanchoo, C.J. and Bapna, J.).

Need for amending the Law as regards to the Power of Courts to Restore Criminal Revision Applications and Criminal cases dismissed for Default in Appearance Back

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