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Judgment
Virender Singh, J.—The instant application is for restoration of the bail application No. 59/08 which was dismissed by this Court on 3rd
Sept. 2008 on account of non appearance of the Learned Counsel for petitioners.
Notice was issued. Mr. Rathore, had put an appearance. However, he has chosen not to come present today.
I have heard Learned Counsel for the petitioners and gone through the order dated 3.9.2008 vide which the instant petition was dismissed.
Record of bail application No. 59/08 is also attached. Perused the same. Learned Counsel submits that both the petitioners are nomats and were
booked in case FIR No. 70/2008 u/s 366/109 RPC registered at Police Station Mahinder. Petitioners prayed for concession of the bail through
bail application No. 59/08 in which notice was issued to the otherside and an interim bail was also granted vide order dated 14.07.2008. Learned
Counsel then submits that in fact the instant petition was filed at Srinagar Wing after obtaining Special Leave from the Hon'ble Chief Justice.
Learned Counsel then submits that one day i.e. on 3.9.08 he had not appeared before this Court as the petition was shown in the supplementary
list and, therefore, it was dismissed for want of appearance. According to Learned Counsel the main petition was not heard on merits and
therefore the petitioners pray that the main petition be restored for its disposal on merits. In support of his contention the Learned Counsel relies
upon a judgment rendered in Ramautr Thakur and Ors. v. State of Bihar AIR 1957 page 33; in which the same controversy had arisen with regard
to criminal revision which was dismissed in default without commenting on merits and the Hon'ble Court ultimately had ordered restoration of the
main petition.
5.1 find force in the submission of Learned Counsel for the petition and of the view that the case of the petitioner is squarely covered by ratio of
the aforesaid judgment.
Resultantly the instant petition is allowed. The main petition is accordingly restored to its original number and be listed next week.