Petitions dismissed for want of prosecution can be restored under Section 482 Cr.P.C. when there is a bona fide reason for absence, circumventing the prohibition of Section 362 Cr.P.C.

JUDGMENT :

TEJ PRATAP TIWARI, J.

Ref : Crl. Misc. Application for Restoration of the application and the Recall of the order dated 30.05.2024

1. Heard learned counsel for the applicant, learned AGA as well as learned counsel appearing on behalf of the opposite party no. 2 and perused the records.

2. This application for recall of the order dated 30.05.2024 has been filed with the prayer to restore the Criminal Misc. Case No.18737 of 2023 (U/s 482 Cr.P.C.) (Parvez Khan vs. State of U.P. and another) at its original number and status.

3. Learned counsel for the applicant has submitted that on 30.05.2024 due to technical problem, the counsel for the applicant could not get the list of listed case and due to this reason, he could not attend the court and could not mention for adjournment of the case, consequently, the petition was dismissed for want of prosecution. In support of this contentions, learned counsel for the petitioner has relied upon the various judgements, which shall be taken into consideration later on.

4. Learned counsel for the opposite party no. 2 has submitted that although there is no provision in the Code of Criminal Procedure for restoration of a criminal case like Order IX of the CPC . It has further been submitted that Section 362 Cr.P.C. prohibits the court to alter or review the judgement.

5. The main question for consideration is that whether a petition under section 482 Cr.P.C., which has been dismissed for want of prosecution can be restored to its original number or not and whether the prohibition as provided by Section 362 Cr.P.C. will apply or not?

Section 362 Cr.P.C. provides as under :

"362. Court not to alter judgement - 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 clerical or arithmetical error."

Section 353 Cr.P.C. defines the judgment as under :

"353. Judgment -

1. The judgment in every trial in any Criminal Court of original jurisdiction shall be pronounced in open Court by the Presiding officer immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties or their pleaders:-

(a) by delivering the whole of the judgment;

or (b) by reading out the whole of the judgment;

or (c) by reading out the operative part of the judgment and explaining the substance of the judgment in a language which is understood by the accused or his pleader.

2. Where the judgment is delivered under clause (a) of sub- section (1), the presiding officer shall cause it to be taken down in short- hand, sign the transcript and every page thereof as soon as it is made ready, and write on it the date of the delivery of the judgment in open Court.

3. Where the judgment or the operative part thereof is read out under clause (b) or clause (c) of sub- section (1), as the case may be, it shall be dated and signed by the presiding officer in open Court, and if it is not written with his own hand, every page of the judgment shall be signed by him.

4. Where the judgment is pronounced in the manner specified in clause (c) of sub- section (1), the whole judgment or a copy thereof shall be immediately made available for the perusal of the parties or their pleaders free of cost.

5. If the accused is in custody, he shall be brought up