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Report No. 141

3.10. Dismissal for default: No power to restore criminal matters according to some High Courts.-

We may now note High Court rulings holding that no such power exists. An Andhra case1 relates to a dispute regarding immovable property (section 145, Code of Criminal Procedure). The party aggrieved by the order of the magistrate filed a revision before the District Magistrate. On the date fixed for hearing of the revision petition, both the parties were absent and the revision was dismissed for default. An Application made for restoration of the revision petition was allowed by the District Magistrate. Aggrieved by this order, the opposite party preferred a revision to the High Court.

The Admission judge in the High Court did not go into the merits of the case. But he directed the District Magistrate to decide the question whether a criminal case dismissed for default could be restored (as this question had been raised before the District Magistrate, but not decided). It so happened, that in the meantime, there had been a change of incumbent in the office of the District Magistrate and the District Magistrate who heard the matter as directed by the High Court, dismissed the restoration petition, relying mainly on the fact that the Code contained no provision for restoration.

This time, the party aggrieved by the dismissal approached the High Court in revision. The Andhra Pradesh High Court held that no restoration petition could lie against an order dismissing a criminal revision petition for default. It followed the Madras ruling in B. Rangarao, 23 MI.J 371 laying down that in a criminal revision, no distinction can be made between an order passed without hearing the petitioner and one in which he is heard.

1. Raj Mallaiah v. Neeradi Naradayya, (1959) Andh Law Times 227 (228) (Srinivasachari, 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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