1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Criminal Application (APPP) No. 915/2010 in Criminal Application (APPR) No. 227/2010 in Criminal Revision No. 20/2009 ( Yashwant Balaji Sahare .vs. Hiralal Babulal Agrawal ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. S.A. Mohta, Advocate for Applicant. Mr. A. S. Chandurkar, Advocate for Respondent. CORAM : R.G. KETKAR, J. DATED : OCTOBER 25, 2010 Heard Mr. S.A. Mohta, learned counsel for the applicant and Mr. A.S. Chandurkar, learned counsel for the respondent. This is an application for condonation of delay of 59 days in filing the application for restoration in Criminal Revision No. 20/2009. In the application it is averred that the applicant has preferred revision application challenging the judgment and order dated 5.12.2008 passed by the learned Ad-hoc District Judge-1 and Additional Sessions Judge, Nagpur in Criminal Appeal No. 142/2005 arising out of Criminal Case No. 362/2005. The revision was admitted by this Court on 11.1.2010. 2 On 9.6.2010 the revision application was listed for final hearing and when the learned counsel for the applicant was unable to remain present, the revision was dismissed in default. After dismissal of the revision, the application received notice on 11.8.2010 calling upon him to remain present on 24.8.2010 before the learned Judicial Magistrate First Class, Kamptee. Immediately after receipt of this notice, he acquired the knowledge about passing of the order on 9.6.2010 and after inspecting the records the present application for restoration was filed and in that process delay of 59 days occurred. On this basis of these averments, the prayer is made to condone the delay. Mr. Chandurkar, learned counsel for the respondent opposed this application on the ground that no sufficient cause is made out and basically the Court has no power to restore the revision. I will consider this submission when I will take up the application for restoration. After hearing the learned counsel for the parties and after considering the averments made in the application, I am satisfied that the applicant has made out sufficient cause for condoning the delay. Hence the application is allowed and the delay of 59 days in filing the application is condoned. Criminal Application (APPR) No.227/2010 Not on board. By consent, taken up for hearing. This is an application for recalling the order 3 dated 9.6.2010 whereby the revision was dismissed in default on account of absence of the learned counsel appearing for the parties. In the application, it is averred that the revision was admitted on 11.1.2010 and was listed for final hearing on 9.6.2010. The learned counsel for the applicant was unable to remain present on that day as on the board it was not noted. In the absence of the learned counsel for the applicant, the criminal revision was dismissed in default. He, therefore, prayed that the order may be recalled and the revision may be restored to file. On the other hand, Mr. Chandurkar, learned counsel for the respondent relying upon Section 362 of the Code of Criminal Procedure, 1973 submitted that the order dismissing revision in default amounts to final order and, therefore, it cannot be altered or reviewed. In support of this submission, he relied upon the judgment of the Apex Court in the case of Sankatha Singh .vs. State of U.P. - AIR 1962 Supreme Court 1208 and the judgment of the Apex Court in the case of Hari Singh Mann .vs. Harbhajan Singh – 2001 (1) Mh.L.J. 465. On the other hand, Mr. Mohta, learned counsel for the applicant relied upon the judgment of the Apex Court in the case of Madan Lal Kapoor .vs. Rajiv Thapar and ors – 2007 Cri. L.J. 4684 (1) to contend that criminal revision cannot be dismissed in default. He also relied upon the judgment of the Apex Court in the case of Kishansingh .vs. State of Uttar Pradesh – SCALE-1993-3-312 and in particular paragraph 7 thereof. In the case of Sankatha Singh 4 (supra), the learned Single Judge of the High Court had dismissed the appeal on 30.11.1956 by passing the following order: “The appellants have been absent and their learned counsel has also not appeared to argue the appeal on behalf of the appellants. I have perused the judgment of the learned Magistrate and seen the record, I find no ground for any interference. The appeal is accordingly dismissed.” In paragraph 7, the Apex Court observed that the learned Single Judge did not dismiss the appeal for default. He himself perused the judgment of the Magistrate and record and did consider the merits. In my opinion, the said judgment is not applicable in the facts and circumstances of the present case, as the revision is not dismissed on merits. Mr. Chandurkar, relied upon the judgment in the case of Hari Singh Mann (supra) to submit that even under Section 482 of Cr.P.C. the Court has no power to alter or review the same once the Court has signed the judgment or final order disposing of the case. The Court has power only to correct a clerical or arithmetical error and the Court becomes functus officio the moment the official order disposing of the case is signed. In that case the learned Single Judge of the High Court disposed of the petition on 7.1.1999 by issuing directions to the SSP, Roopnagar to look into the allegations of the petitioner and if he comes to the conclusion that some cognizable offence has been committed by respondent 7 or 8 or anybody else, he 5 shall order for the registration of the case. However, after disposal of the petition, the learned Single Judge entertained miscellaneous petition and passed orders on 30.4.1999 and 21.7.1999 which were challenged before the Apex Court. The Apex Court came to the conclusion that after disposal of the main petition on 7.1.1999, there was no lis pending in the High Court where the respondent could have filed any miscellaneous petitions. The Apex Court in that view of the matter felt that the impugned orders dated 30.4.1999 and 21.7.1999 could not have been passed by the High Court under its inherent power under Section 482 of Cr.P.C. As noted earlier, the revision was dismissed in default and not on merits. I, therefore, find that the said judgment is applicable to the facts of the present case. Mr. Mohta, relied upon the judgment of the Apex Court in the case of Madan Lal Kapoor (supra) to submit that the criminal revision could not have been dismissed in default, as also the judgment in the case of Kishansingh (supra). In my opinion, having regard to the decision of the Apex Court in the case of Madan Lal Kapoor (supra), the revision could not have been dismissed in default. In view of this, the application deserves to be allowed. Hence the application is allowed in terms of prayer clause (1) and Criminal Revision No. 20/2009 is restored to the file. 6 Criminal Application (APPR) No. 228/2010 Not on board. By consent, taken up for hearing. This is an application for stay of the judgment and order dated 6.6.2007 in Criminal Complaint Case No. 362/2005. The learned counsel for the applicant states that he is not pressing this application. In view of this, the application is dismissed as not pressed. JUDGE halwai