Important Point
Where an appeal or revision has been dismissed for default & not on merits, same can be re-admitted for hearing on merits if sufficient cause is shown for default & same principle must apply to a petition u/s. 482 Cr.P.C.

M.R. Verma, J.— This petition under Section 482 of the Code of Criminal Procedure (hereafter referred to as ‘the Code’) has been filed by the applicants praying for restoration of Cr. M.M.O. No. 60 of 2001 which was dismissed for default on 4.3.2003.

2. Brief facts leading to the presentation of this petition are that Cr. M.M.O. No. 60 of 2001 filed by the appli-cants was pending in this Court and came up for hearing on 4.3.2003. However, no appearance was put in for the applicants, therefore, the same was dismissed for default of appearance and prosecution. The present petition has now been moved for restoring the said Cr. M.M.O. on the grounds that vide order dated 23.12.2002 this Court directed listing of the Cr. M.M.O. during the week, commencing from 2nd March, 2003 but the Counsel for the applicants wrongly and inadvertently noted that the petition was to be listed in the 2nd week of March, 2003 and this mistake resulted in the non-appearance for the applicants and the dismissal of the Cr. M.M.O. The averments made in the petition are supported by affidavit.

3. The respondents did not file any reply to the present petition. However, they contested the petition.

4. I have heard the learned Counsel for the parties and have also gone through the relevant records.

5. A preliminary objection was taken for the respondents about the maintainability of the present petition and it was urged that in view of the provisions of Section 362 of the Code no Court, including the High Court, has the power to alter or review its judgment or final order disposing of a case, therefore, the present petition is not maintainable. To substantiate the submissions, the learned Counsel for the respondents relied on State of Kerala v. M.M. Mani-kantan Nair1 Hari Singh Mann v. Harbhajan Singh Bajwa and Ors.2 Mosst. Simrikhia v. Smt. Dolley Mukherjee and Anr.3 State of Orissa v. Ram Chander Agarwala etc.4 Smt. Sooraj Devi v. Pyare Lal and Anr.5

6. It is undoubtedly clear from a bare reading of Section 362 of the Code that unless otherwise provided in the Code or by any other law for the time being in force, no Court, which will include even the High Court, shall alter or review its signed judgment or ‘final order’ disposing of a case except a correct clerical or arithmetical error. However, in view of the scheme of the Code as a whole and the various provisions contained therein it appears that a Criminal Court is debarred from altering or reviewing its judgment or ‘final order’ only when such judgment’ or ‘final order’ disposing of the case has been passed on merits of the case and will not apply to a case which has not been heard and decided on merits but has been dismi-ssed for default of a party in appearance/prosecution which may not be deliberate or intentional. There is only one provision in the Code i.e. Section 256 of the Code which provides for the conse-quences of non-appearance of a complai-nant in a summons case otherwise there is no provision which provides for dismissal of any other petition, appeal or revision for default. The intention thus is evident that other matters must be finally disposed of on their own merits. Therefore, where an appeal or revision is dismissed for default and without going into the merits of the case it appears necessary to hear and dispose of such matter on merits to secure the ends of justice. Therefore, the High Court in exercise of its inherent powers will be justified to readmit a matter dismissed for default for hearing and disposal on merits.

7. In the cases, cited for the respondents, earlier decisions were reviewed by the respective Courts which had passed judgment’ or ‘final order’ on merits of the case. Evidently, such ‘judgment’ or ‘final order’ having been passed on merits could not be called in question before the same Court by seeking any alteration in the findings recorded therein on merits. None of the aforesaid cases involved the question whether a petition dismissed for