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Report No. 141

3.12. A Kerala case: dismissal of revision.-

The Kerala High Court1 has held to the following effect (with reference to the Code of 1973):-

"Clause (2) of section 401 which deals with the powers of revision of the High Court provides that no order under that section should be made to the prejudice of the accused or other person unless he had an opportunity of being heard either personally or by pleader in his own defence. The afford of an opportunity is different from the availing of that opportunity. A party would get an opportunity for being heard if he is given notice of the case and the posting. His being not present at the time of hearing is his not availing of that opportunity. There is no power conferred on the court by the provisions of the Criminal Procedure Code for restoration of revision petitions which have been disposed of, also.

Restoration to file, and rehearing, prayed for here, is not to give effect to any order under the Code. Nor is it to prevent abuse of the process of the court, because no abuse of the process of the court is involved here. As the disposal here was after perusal of records and after hearing those counsel who were present in court, it was in accordance with law. The words "or otherwise to secure the ends of justice" occurring in section 482 also cannot take in a case of the present kind.

Those words have to be read ejusdem generis. Restoration and hearing of a revision petition disposed of without hearing the respondent's counsel, is not a purpose analogous to "giving effect to an order under the Code" or preventing abuse of the process of Court. On the other hand, to restore and rehear a criminal revision petition which has been disposed of, would be to go against the mandatory provision in section 362 of the Criminal Procedure Code, that, except to correct a clerical or arithmetical error, a judgment or order should not be altered or reviewed after it is signed, unless otherwise provided, and any inherent power cannot be used to do what is expressly prohibited by the Code. Section 482 of the Code is not meant to give second inning to a party in a case which has already been decided against him."

The Kerala High Court further held that the Supreme Court rulings of 1962 and 1979 had clinched the matter.

1. Bhanu v. Vilasini, (1980) Ker Law Times 13 (15), paras. 3-4 (Narayana Pillai, 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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