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Judgment
J. Sangma, J.—The 2 petitioners were accused in GR Case No. 225/89 of the Court of Judicial Magistrate, 1st Class, Rangia. By judgment dated 18-7-1991 the learned Judicial Magistrate convicted petitioner No. 1 (Md. Sauman Ali) u/s 147/324, IPC. He sentenced petitioner No. 1 to R.I. for 1 year u/s 147 and to R.I. for 1 year u/s 324. Both the sentences were to run concurrently. He sentenced petitioner No. 2 (Md. Samsuddin Ahmed) u/s 147 to R.I. for one year.
Against the said conviction and sentence the petitioners preferred Criminal Appeal No. 26/1991 in the Court of Sessions Judge, Gauhati and in that appeal the petitioners were on bail. On 17-7-1992 the Sessions Judge transferred the appeal to the file of Additional Sessions Judge, Gauhati who, thereafter, dismissed it on 22-2-1993 for non prosecution (i.e. for non appearance of the petitioner''s advocate when the appeal was called for hearing).
After that the petitioner No. 2 was arrested on 3-12-1993 and put in jail. Then only the petitioners came to know that their appeal was dismissed for default of their advocate long back on 22-2-1993. On 8-12-1993 the petitioners filed application for restoration of the appeal. The Addl. Sessions Judge fixed 23-12-1993 for hearing it; but, as stated by Mr. B.M. Choudhury, learned counsel, the Addl. Sessions Judge rejected the prayer for bail of petitioner No. 2 on 14-12-1993 by saying that in view of Section 362, Cr.P.C. He could not review the order which he had passed on 22-2-1993. Because of this the petitioners apprehended that the restoration petition would also be rejected on 23-12-1993. Hence the petitioners have prematurely brought this revision.
Mr. B.M. Choudhury, learned counsel for the petitioners now contend that Section 362, Cr.P.C. does not apply to dismissal for default because of the absence of petitioners or their advocates when the case or appeal is called for hearing. This section provides as follows:-
Court not to after judgment. 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.
The term "judgment" has not been defined in Cr.P.C. But Section 2, C.P.C. says -- "judgment" means the statement given by the Judge of the grounds of a decree or order. In common parlance it means conclusive determination of a case or appeal on merits by giving reasons, a case or appeal is dismissed for default for absence of the prosecuting party or their advocates, where the party is represented by advocates by an order without going into the merits. The word "judgment" in Section 362, does not include such an order. So the court dismissing the appeal for default can restore it to a pending file, if the defaulting party can show good cause for the default.
As the petitioners'' application for restoration has been fixed on 23-12-1993 for consideration, this revision is premature and, as such, it is dismissed with the above clarification on the position of Section 362. As by now a period of 10 months has elapsed from the date of dismissal (22-2-1993) the cause of justice would be met if the appeal is restored and heard simultaneously so that a further delay does not take place. But if, for some reasons, a simultaneous or very quick hearing is not possible, the proper thing would be to allow bail as before.
Send a copy of this order to the Addl. Sessions Judge, Gauhati, immediately.