IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR BEFORE HON'BLE SHRI JUSTICE RAJENDRA KUMAR VANI th ON THE 18 OF NOVEMBER, 2024 MISC. CRIMINAL CASE No. 412 of 2024 BALVEER Versus THE STATE OF MADHYA PRADESH Appearance:

Shri Rudra Pratap Singh Kaurav - Advocate for the petitioner.

Shri Saket Udeniya - P.P. for respondent/State.

ORDER Heard on the question of maintainability of the present petition.

This petition under Section 482 of Cr.P.C. has been filed for restoration of Criminal Revision No.177/2012 to its original number. The aforesaid revision petition was dismissed vide order dated 10.07.2023. This Court dismissed the revision on merits after considering the facts and circumstances of the case. It is submitted by the learned counsel appearing on behalf of the petitioner that the impugned order passed by this Court on 10.07.2023 in Criminal Revision No.177/2012 was in the non-appearance of the counsel for the petitioner, therefore, for the restoration of that revision petition a petition under Section 482 of Cr.P.C. is maintainable. In support of his contention, he placed reliance on the citation of Hon'ble Supreme Court in the case of Taj Mohammad vs. State of Uttar Pradesh & Anr. reported in 2023 Live Law (SC) 689. He also relied on the order passed by this Court in M.Cr.C. No.24849/2023 on 18.01.2024 (Bhagwan Singh vs. State of M.P.).

Per contra, the learned counsel appearing on behalf of the respondent/State Signature Not Verified Signed by: VANDANA has vehemently opposed the contention putforth by the learned counsel for the petitioner on the ground that the impugned order is passed on merits. Though, it was passed in the absence of learned counsel for the petitioner, but the merits of the case has been considered appropriately and thereafter the order was passed by this Court considering the various citations depicted therein.

Having heard the learned counsel for the parties and perused the record.

The relevant para 5 of the above judgment passed in the case of Taj Mohammad (supra) in this regard as infra:

"5. In the decision in Madan Lal Kapoor v. Rajiv Thapar , a Two-

Judge Bench of this Court held that the rule laid down by this Court that a criminal appeal should not be dismissed for default would also apply to criminal revisions. The reference thus made was to the decision of a Three-Judge Bench of this Court in Bani Singh vs. State of U.P. In Bani Singh's case a(supra), this Court held thus:

14. The plain language of Section 385 makes it clear that if the appellate court does not consider the appeal fit for summary dismissal, it 'must' call for the record and Section 386 mandates that after the record is received, the appellate court may dispose of the appeal after hearing the accused or his counsel. Therefore, the plain language of Sections 385-386 does not contemplate dismissal of the appeal for non- prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the trial Court are consistent with the material on record. The law, therefore, does not envisage the dismissal of the appeal for default or non- prosecution but only contemplates disposal on merits after perusal of the record."

In both the cases cited above by the learned counsel for the petitioner the criminal appeal or criminal revision was dismissed for non-appearance of the counsel without considering the merits of the case but here in this case the factual Signature Not Verified Signed by: VANDANA aspects are different. The perusal of impugned order dated 10.07.2023 shows that this Court has passed the order on the merits of the case. The law laid down by the Hon'ble Apex Court in the case of Duli