1. This is an application by Keshav Lal in the following circumstances:
2. The applicant had filed a revision in this Court. That application was listed tor admission on the 17th of January, 1951. The order of Gupta J. on that date was in these words:
'Petitioner and his counsel absent despite service. There is no one to press this petition which is hereby dismissed, in limine.'
Thereupon, the present application was made on the same day by Keshav Lal in which it was pointed out that the case was listed in the list of Bapna J. The counsel therefore waited in the Court in which Bapna J. was working in a Division Bench. Before, however, Bapna J. could be free from the Division Bench, the counsel was surprised to learn that the case had been sent to the Court of Gupta J. The counsel then rushed to the Court of Gutpa J. but by then the revision had been dismissed by the order which has been set out above. Consequently, it was prayed that the revision be restored.
3. The matter came up before Gupta J. on 24th of January, 1951. He has referred the question, whether a criminal revision dismissed for default as in this case should be restored, to a Division Bench and that is how the matter has come before us.
4. So far as the question of restoration strictly so called, is concerned, there is no provision in the Code of Criminal Procedure which empowers a criminal Court to restore a criminal case once it has been finally decided. The power of restoration has to be specifically conferred, as is the case in the Code of Civil Procedure, before it can be exercised by a Court. But this, however, does not dispose of the matter. We have already set out the order passed by Gupta, J., and the contention of the learned Counsel for the applicant is that it is the duty of a criminal Court which is seized of a criminal appeal or revision, to decide it on the merits. This is implicit in the words of Section 359 which forbids a Criminal Court from in any way altering or reviewing its judgment when it has been signed except to correct a clerical error. We may, in this connection, refer to the case of 'BIB-HUTY MOHAN ROY v. DASIMONIDASSI', 3 Ind Cas 393. There also a revision which had been admitted was dismissed for default. The learned Judges held that in those circumstances, there had been no judgment and the Court had not considered the grounds on which the rule had been granted and had not come to the conclusion whether all or any of those grounds failed. It was also pointed out that it was open to the Court to determine the questions raised without hearing Counsel but the learned Judges did not do this for on the face of the order it appeared that it was made only because no one had appeared. I was further held that the Court had jurisdiction to rehear the case and give a judgment under these circumstances.
5. No reference was made to Section 561-A in this judgment because it is of the year 1909. The position today is much stronger because Section 561-A provides that the High Court has power to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. We may in this connection refer to two recent cases decided by the Allahabad High Court. The first of these is 'SRI RAM v. EMPEROR', AIR (35) 1948 All 106. In that case, a revision had been heard on the merits ind dismissed. Later, an application was made to the effect that a certain provision of the law had been overlooked the effect of which was that the maximum sentence to which the applicants could be sentenced was three months. In fact, the applicants were sentenced to more than eighteen months rigorous imprisonment. When this fact was brought to the notice of the Court, the sentence of imprisonment was reduced from eighteen months to three months' rigorous imprisonment under the provisions of Section 561-A. In fact, therefore, there was an alteration of the previous judgment but the learned Judges pointed out that this power was vested in the High Court particularly in view of the words 'Save as otherwise provided by this Code' with which Section 369 begins.
6. The next case is 'CHANDRIKA v. REX', AIR (36) 1949 All 176. That was an appeal before the High Court and the Counsel was told that it would be fixed for hearing on the 5th of July, 1948. By mistake it was fixed for hearing on the 25th of June and the Counsel naturally failed to appear. Thereupon, it appears, that the Government Advocate was heard and the appeal was decided on merits. Later the Counsel applied that there had been a mistake of the office in listing the appeal for hearing on the 25th of June and prayed that he might be heard. Under the proviso to Section 421 (1), the appellant or his Pleader has to be given a reasonable opportunity of being heard in support of the appeal before it is dismissed. It was held that in view of the mistake made by the office, the appellants' Counsel had not been given a reasonable opportunity of being heard in support of the appeal. Thereupon, the order which had been passed dismissing the appeal was set aside and the appeal was put down for re-hearing. The learned Judge relied upon Section 561-A of the Code of Criminal Procedure and pointed out that in the interests of justice, it was necessary that the appeal should be re-heard.
7. In the present case also it is, in our opinion,the duty of the Court on the criminal side todecide a criminal matter on the merits whether a,party or his Pleader is present or not. In thepresent case, this has not been done and it isobvious from the order passed by Gupta, J., thathe has dismissed the revision not on merits buton the ground that Counsel was absent. It is truethat in a revision, the High Court is not boundto hear Counsel and if Gupta, J., had dismissedthis revision on the ground that there was noforce in it, the applicant could not ask us to setaside that order. But the order shows that therevision was not dismissed on the merits. As suchwe are of the opinion that though there can beno restoration in a criminal case, the High Courthas the power under Section 561-A to make suchorders as are necessary in the interests of justice.As the revision was dismissed without going intothe merits, we are of opinion that we should exercise our power under Section 561-A to secure theends of justice so that the revision may be disposed of after the grounds raised have been considered. We may point out that in this case also,there was no fault of the lawyer who was waitingin the Court in which the case had been listed.We, therefore, allow this application and direct thatthe order dated the 17th of January 1951, be setaside, and the revision may be put up for admissionin due course.