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Report No. 141

3.20. What flows from aforesaid judgments of Supreme Court.-

It would appear from the above resume of Supreme Court decisions, that the resultant position is as under:-

(1) An Appeal cannot be dismissed for default. It must be disposed of on merits whether or not the party or his advocate is present. (Supreme Court judgment of 1962).

(2) An appeal once dismissed cannot be restored for rehearing under the inherent power of the High Court. (Supreme Court judgment of 1962).

(3) Where a High Court has rendered a judgment or rejected a revisional application by a signed order, it cannot review the same. (Supreme Court judgment of 1979).

(4) Nor can the High Court do so in exercise of its inherent power. (Supreme Court judgment of 1979).

(4A) Subordinate criminal courts do not possess inherent powers. (Supreme Court judgment of 1977).

(5) Apparently, the same is the position regarding dismissal of a criminal case for default pursuant to a signed order in this behalf (Supreme Court judgment of 1979).

(6) A signed order of a Magistrate dismissing a complaint or an order discharging the accused for default of the complainant, is a final order. (Supreme Court judgment of 1986).

(7) An order so passed for default cannot be disturbed by restoring the case under the inherent power, in face of the express prohibition against alteration of judgment or final order embodied in section 362 of the Code of 1973. (Supreme Court judgment of 1986).

(8) Such order of dismissal for default can be set aside, if At all, only by the higher Court of appeal, or revision. (Supreme Court Judgment of 1986).



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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