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Report No. 141

1.1.2. The 'two' situations giving rise to injustice are:-

First situation.- If the Revisional Court by a signed order dismisses a criminal Revision for default of the applicant or his/her Advocate to remain present when the matter is called for hearing, the court dismissing the said criminal revision cannot restore the same for hearing on merits. The concerned court cannot do so even if the applicant or his/her Advocate was prevented from remaining present for sufficient cause or in unavoidable circumstances notwithstanding the fact that the court passing the order of dismissal for default is satisfied that the absence deserves to be excused and ends of justice so demand.

Such is the outcome in the context of the fact that as per the existing law a criminal court has no power to review its 'final order' and an order dismissing a criminal revisional application by a signed order is construed as a 'final order' within the meaning of the fetters imposed by section 362 of the Code of Criminal Procedure pertaining to the court's power to alter or review its judgment or order.

Second situation.- The criminal court trying a summons case is powerless to remedy the resultant injustice in a given case arising out of the order of acquittal required to be rendered by the said court in the event of the complainant being unable to appear on the day appointed for the hearing [(except in certain cases covered by the proviso to section 256(1)]. The net result of the relevant provisions of the Code is, that once the accused is acquitted under section 256 or a criminal case is dismissed for default by a signed order, then it cannot be restored and the consequential acquittal cannot be set aside, even if the default in appearance was for a sufficient cause.

There are two reasons, in the main, for this position. First, the Code does not contain any express provision for restoring the dismissed matter entailing the acquittal of the accused person. Secondly, section 362 of the Code expressly creates a bar and prohibits the review of a judgment or final order, once it is signed. And because the order of dismissal for default and the consequential order of acquittal under section 256 is construed as a final order.

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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