1 jpc/- IN THE HIGH COURT OF JUDICATURE OF BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 389 OF 2009 IN CRIMINAL REVISION APPLICTION NO. 395 OF 2008 Munir Hasan s/o Bande Hasan and others .. Applicants Versus Smt. Halma Begum w/o Abdujana and another .. Respondents Shri Anil Lulla i/b Ms. Ankita Rele for the Applicants Shri Murtaza Najmi, Advocate for Respondent No.1 Shri Y. S. Shinde, APP for the State CORAM: MRS. MRIDULA BHATKAR, J. Reserved for Judgment on 5th November, 2009 Judgment declared on 11th December, 2009. J U D G E M E N T 1. Heard learned counsel for the parties. 2. The Applicant has moved this criminal application for restoration of the revision application. The criminal revision was dismissed for non prosecution by this Court on 4th May, 2009. The prayer is also made for condonation of delay of 40 2 days for filing the application for restoration. It is contended that the applicant, after attending the date on 23rd March, 2009, went to Utter Pradesh and then due to his ill health, could not attend the matter and the matter was dismissed on 4th May, 2009. He came to know about the order of dismissal on or about 10th June, 2009. Thereafter he preferred this application for restoration. 3. Learned Counsel appearing for the respondents has opposed the restoration on the ground that the concept of restoration is unknown in the Criminal Procedure Code. He has placed reliance on the judgment of this Court of the Single Bench in the case of Venus Steel Products Vs. Michael Francis Pinheiro reported in 2005 (2) Bom. (Cri.) 901, and submitted submitted that in view of the said judgment the order of dismissal for non prosecution is final order and the same cannot be recalled or reviewed in view of the specific bar created by Section 362 of the Cr. P.C. 4. Chapter XXVII of the Criminal Procedure Code is 3 in respect of the Judgment. Sections 353 to Section 365 under the said Chapter cover the procedural aspects in respect of the judgment. Section 362 reads as under: Section 362. Court not to alter judgment- Save as “ otherwise provided by this Code or by any other law for the time being in force, no court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a technical or arithmetical error.” 5. Section 362 of the Cr.P.C. specifically states that the Court cannot alter or review or modify its judgment which it has attained finality. It only allows the Court to correct a technical or arithmetical error. Term all Courts ‘ ’ includes High Courts. When this section contents prohibition on such change, the purpose of such prohibition is obvious to maintain the stability, consistency, decisiveness in the justice delivery system. The alteration, modification or review is bound to lead a chaos. Section 482 of the Cr. P. C. confers inherent power to the High Court however it does not give fresh power to reconsider or review its own decision wherein matter is finally decided. 4 6. In the case of Nalu Sahu Vs. State, reported in 1965 Orissa 7 , it was held Inherent power of the High Court cannot be invoked to review or alter the judgment delivered. In the case of S. Rangaswami Vs. R. Narayanan, reported in 1966 Mad. 163, it was held that: Section 561-A does not in any way enlarge the powers “ conferred under the Code especially when it is provided in Section369 that no Court when it has signed the judgment, shall alter or review the same.” 7. In the event of grave miscarriage of justice, the court found it necessary to review its own judgment, and the High court has used its power under Section 482 of the Criminal Procedure Code to meet the end of justice. Thus, a pedantic approach is softened in some of the cases. In the case of Madhu Limaye Vs. State of Maharashtra 1978 SC 47 , Rajkapoor Vs. State AIR 1980 SC 258 the Hon ble Supreme Court ’ has expressed a view that Section 362 should not bar the exercise of inherent power by the High Court and the inherent power under Section 482 Cr.P.C. can be exercised and nothing in the Code can affect or limit the High Court s exercise of ’ 5 inherent power as contained in Section 482. 8. Learned counsel appearing for the respondent also relied on the judgment of Supreme Court in the case of Hari Singh Mann Vs. Harbhajan Singh Bajwa and others, reported in 2001 Supreme Court 43 in which the Hon ble Supreme Court ’ held that: There is no provision in the code of of Criminal “ procedure authorising the High Court to review the judgment passed either in exercise of its appellate or revisional or original criminal jurisdiction ” 9. The judgment and order passed on merits and the order passed by the Court of dismissal on the ground of default or for want of prosecution cannot be treated on the same footing. Order on merit is a well reasoned order passed after giving fair opportunity to the parties. In the justice delivery system, fair play is a must and therefore, the facts are distinguishable. In the case in hand, while disposing of the revision, no directions at all were given to the respondents and it was simply disposed of in default, unlike the case of Hari Singh Mann. 6 10. In Haji Sahajuddin Ahmed Vs. Banamali Das, reported in 1983 Cr.LJ (NOC) 173 - it is observed that the Opening words in Section 362 save as otherwise provided by “ this Code or any other law for the time begin in force do not ” take any inherent powers of the High Court. An order of dismissal of a criminal revision petition for “ default of appearance may not be regarded as final order disposing of a case, as envisaged in Section 362 and as such, when one or more of the requirements of Section 482 are present and where glaring injustice stares the Court in the face, such an order can be set aside and the petition restored and heard on merit by the High Court exercising powers under Section 482. 11. It is true that for restoration there is no equivalent procedure laid down in the Criminal procedure code as available in Civil Procedure Code. However, it is a routine practice of the Courts including the High Courts to dismiss the criminal revision for want of prosecution as it is an effective tool to reduce the pendancy or to put the parties/lawyer under pressure to come forward to assist and cooperate the Court for disposal of the matter. Such dismissal i.e. dismissal 7 for want of prosecution is also essential to secure the presence of the parties to bring the discipline in the hearing of the matters and to throw deadwood out of the Court files. 12. The Criminal procedure Code - Sections 384 specifically provides that no appeal be disposed of without hearing. In the Landmark judgment in the case of Banising and others Vs. State of UP, reported in 1993 SCC 722, guidelines are given as to how the appeal be decided on merit in the absence of either of the parties or the advocates. In the case of Madanlal Kapoor Vs. Rajiv Thapar, reported in 2007 Cr.LJ 4684, the Hon ble Supreme Court, while considering identical ’ issue of setting aside the order of dismissal on the ground of default, in paras 4, 7, 8, 9 and 10 of the said judgment, ruled that: 4. The matter relates to administration of “ criminal justice. As held by this Court, a criminal matter cannot be dismissed for default and it must be decided on merits. Only on that ground the appeal deserves to be allowed. 8 7. In Parsuram Patel and another vs. State of Orissa, (1994) 4 SCC 664, the Supreme Court held that a criminal appeal cannot be dismissed for default. 8. In our opinion the same reasoning applies to criminal revisions also, and hence a criminal revision cannot also be dismissed in default. 9. There is, however, an additional reason also. Earlier when the petition was dismissed, the aggrieved appellant approached this Court and in Criminal Appeal No. 309 of 2002 a two Judge Bench of this Court, by an order dated February, 22, 2002, allowed the appeal, set aside the order of the High Court and observed that the matter should be decided by the High Court after application of mind and by passing a reasoned order. Unfortunately, in the impugned order, there are no reasons and the merits have not been considered at all. (emphasis added). 10. Hence, the appeal is allowed. The order of the High Court is set aside and matter is remitted back to the High Court. The High Court will decide the matter on merits. ...” 9 13. Thus, the present case squarely comes under the purview of the ruling in the case of Madanlal Kapoor Vs. Rajiv Thapar (supra). In view of this judgment of the Hon ble ’ Supreme Court, the ruling in the case of Hari Singh Mann Vs. Harbhajan Singh Bajwa & others (2001 Supreme Court 43) (supra) and the view taken by the Single Bench of this Court in the case of Venus Steel Products Vs. Michael Francis Pinheiro ( 2005 (2) Bom. (Cri.) 901)(supra) cannot be adopted by this Court. 14. In the result, the application for restoration is allowed. The Criminal Revision Application is restored to the file with all orders passed therein. (MRIDULA BHATKAR, J.) jpc/-