Aditya Nath Mittal, J.

Crl. Misc. Application No.51760 of 2015 - Application for Restoration of the Petition and the Recall of the order dated 29.04.2015.

1. Heard learned counsel for the applicant-petitioner, learned AGA as well as learned counsel appearing on behalf of the CBI and perused the pleadings.

2. This application for recall of the order dated 29.04.2015 has been filed with the prayer to restore the Criminal Misc. Case No.1994 of 2011 (U/s 482 Cr.P.C.) (Jawahar Lal @ Jawahar Lal Jalaj vs. The State Of U.P Thru CBI/ACB Lucknow) at its original number and status.

3. Learned counsel for the applicant has submitted that on 29.04.2015 the counsel for the petitioner all of sudden around 11.30 am developed heaviness and restlessness and rushed to the High Court Dispensary where his blood-pressure was found to be 160/110, upon which the doctor advised him for complete rest 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. It has also been 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 but if any case is dismissed in default, it cannot be said to be a judgement. Therefore, the bar of Section 362 Cr.P.C. is not applicable. It has also been submitted that where the party to the proceedings is deprived of being heard and if in the interest of justice, opportunity of hearing is expedient than such opportunity must be given. It has also been submitted that if there is no provision in the Cr.P.C. for restoration of a petition unlike Order IX of CPC then there is no restriction in the Cr.P.C. to recall and set aside such order, which has been passed in absence of the petitioner.

5. Learned counsel appearing for the CBI has not raised any objection to the state of health of the counsel for petitioner on 29.04.2015 and has also conceded that if any petition is dismissed for default, then it is neither a judgement in view of Section 353 and 465. He has further submitted that the court can exercise its inherent power to restore such petition. It has also been submitted that if any judgement has been passed without application of mind or where no reasons have been assigned or where it has been dismissed in default, such order can be set aside exercising the powers under section 482 Cr.P.C.

6. 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 presid