Mukesh Kumar And Others vs State Of Uttarakhand

Sharad Kumar Sharma, J

This revision has been preferred by the revisionist, challenging the impugned judgement dated 28th October 2013, as passed by 3rd Additional Sessions Judge, Haridwar in Criminal Appeal No. 39 of 2012, Manish Kumar and others v. State. By virtue of the impugned order dated 28th October 2013, under challenge in the present revision, the learned Appellate Court of 3rd Additional Sessions Judge, while partly allowing the revision, had remitted the matter back to the trial Court for its reconsidering the conviction under Section 5(d) of the Immoral Traffic (Prevention) At 1956, as against the present revisionist. It is this order of remand, as passed by 3rd Additional Sessions Judge, Haridwar, that the present revision was preferred.

When the revision was preferred, it was heard at the admission stage on 27th November 2013, and an interim order was granted by the coordinate Bench of this Court, whereby the proceedings as a consequence of its revival by the order of remand impugned in the present revision was kept in abeyance. This revision has been listed almost about six years of the grant of an interim order i.e. now on 8th March 2019, and when the matter was taken up in the revised call, the coordinate Bench of this Court, who was ceased with the criminal revision, in the absence of there being any counsel to assist the Court, had no option except to dismiss the revision in default.

Seeking recall of the said order, a Restoration Application has been preferred by the revisionist being Restoration Application Number 2377 of 2019 by filing the same on 18th August 2019. The Restoration Application has been taken up on couple of occasions and the counsel for the revisionist/applicant to the Restoration Application, was called upon to address the Court as to under which provisions an application for restoration would be tenable and that too in a criminal proceedings under Section 397 Cr.P.C., which stood culminated by it's dismissal by an order dated 8th March 2019.

In order to satisfy the Court on the tenability of the application for restoration, the learned counsel for the revisionist-applicant sought an adjournment, and the matter was directed to be posted today. In support of his contention with regards to the maintainability of restoration application, the learned counsel for the revisionist-applicant has placed reliance on a judgement as reported in 1999 (39) ACC 889, Badloo v. State, whereby the co-ordinate Bench of Allahabad High Court, in a Criminal Revision Number 612 of 1982, which was decided by the Court on 25th September 1997, it was a case which was decided; without hearing the counsel for the revisionist, the Court was ceased with an application, seeking recall of the order dated 25th September 1997, which was an adjudication on merits without hearing the counsel for the revisionist.

The co-ordinate Bench of the Allahabad High Court, while referring to the provisions contained under Section 402 of the CrPC, has held that while exercising powers under the aforesaid provisions and further while recording a finding pertaining to the implications of Section 362 CrPC, wherein the Court has inferred that the provisions contained under Section 362 CrPC, does not bar filing of a recall application. In order to secure the ends of justice, the Court can always exercise its powers under Section 482 of CrPC for recalling the ex parte orders. With regards thereto, a reference has been made to the Full Bench judgement of Rajasthan High Court, as reported in AIR 1987 Rajasthan 33, Rajasthan State Electricity Board, Jaipur v. Dr. Madan P. Joshi, with all profound reverence at my command, this Court is not agreeing with the ratio, as propounded by the co-ordinate Bench of Allahabad High Court, because it was a case when it was ceased with the application for "recalling of an order". Recalling here was an order which was recalling a judgement which was an adjudication of a criminal revision on merits in the absence of the counsel for the revisionist.

The co-ordinate Bench of Allahabad High Court has invoked the provisions contained under Section 402 of the Code of Criminal Procedure, which is quoted hereunder:-

"Section 402 - Power of High Court to withdraw or transfer revision cases

(1) Whenever one or more persons convicted at the same trial makes or make application to a High Court for revision and any other person convicted at the same trial makes an application to the Sessions Judge for revision, the High Court shall decide, having regard to the general convenience of the parties and the importance of the question involved. Which of the two Courts should finally dispose of the applications for revision and when the High Court decides that all the application for revision should be disposed of by itself, the High Court shall direct that the applications for revision pending before the Sessions Judge be transferred to itself and where the High Court decides that it is not necessary for it to dispose of the applications for revision, it shall direct that the applications for revision made to it be transferred to the Sessions Judge.

(2) Whenever any application for revision is transferred to the High Court, that Court shall deal with the same as if it were an application duly made before itself.

(3) Whenever any application for revision is transferred to the Sessions Judge, that Judge shall deal with the same as if it were an application duly made before himself.

(4) Where an application for revision is transferred by the High Court to the Sessions Judge, no further application for revision shall lie to the High Court or to the any other Court at the instance of the person or persons whose applications for revision have been disposed of by the Sessions Judge."

But this Court, after going through the provisions contained under Section 402 of CrPC, is of the view that the said provision specifically confines the power of the High Court to withdraw or transfer the revisional cases case, it is more or less a power which could be more of administrative nature, hence, this Court is unable to accept the said ratio, as laid down by the Allahabad High Court in the said judgement, as to whether at all it governs the procedure for considering the recall or the restoration application as the case may be of an order passed in judicial proceedings, like the one at hand. Hence, this Court is of the view that in the given set of circumstances of the present case, the provisions contained under Section 402 of the Code of Criminal Procedure, happens to be absolutely alien to the proceedings when it is initiated on an application for recall or restoration application comes for consideration in a criminal proceedings when the same has been dismissed for want of prosecution.

The other distinction, which has been carved out by the co-ordinate Bench of the Allahabad High Court is from drawing an extract from the interpretation of Section 362 of CrPC, which legally creates a bar with regards to filing of the Restoration application, but it does not carve out a restriction for filing a recall application for recall of an order, is only where there is an adjudication on merits in the absence of the counsel for revisionist/applicant, which was the case at hand in the said judgement where the revision was decided ex-parte on merits on 26th September 1997. Hence, the interpretation as given to Section 362 of CrPC in the said judgement would be confined to the recall, the judgements, which was sought to be recalled by the revisionist in relation to an adjudication, which has been made ex parte without hearing the counsel but it was on its merits and it was not the case, which was dealing with the situation as it is in present case of dismissing the revision for want of prosecution. Hence, under the given set of circumstances, and in view of the settled law and due to the bar under Section 362 Cr.PC that once the proceedings before the criminal Court has been dismissed for want of prosecution or even on merits of the matter, the Court does not have a power to restore or recall its own order and revive the proceedings for its fresh consideration. Hence, this judgement, on which the reliance has been placed, is not of much credence, as far as the present case is concerned, and this Court is not in agreement with the ratio as the same would not be applicable.

Another judgement, on which the reliance has been placed by the learned counsel for the revisionist as reported in 2016 (SCC) online Bom 12364, Janu Bhika Bangar v. Narayan Bhiwa Vyapari and Anr.

First of all, the aforesaid case was not considering the implications as to what would be the scope of inference in a matter, which stands adjudicated or decided by the Courts either on merits or default of the counsel and with regards to impact of considering the application for recall, which is otherwise barred by Section 362 of CrPC. Since in the said judgement it was not lying down any ratio in the light of the particular set of law, it cannot be extracted to be relied as a precedent for considering the application for restoration, as preferred by the revisionist-applicant to the present revision. Apart from it, in the said case, it was a revision, which was preferred against an order of conviction, which was supported with the Delay Condonation Application, and it was the Delay Condonation Application, only which was filed along with the criminal revision, which was dismissed for want of prosecution on account of non appearance of the applicant's counsel it was not the case of dismissing the main criminal revision itself. It is against the rejection of the delay condonation application (and not the principal proceedings of the criminal appeal or criminal revision), for which the Restoration Application was filed, seeking recall of an order, rejecting the delay condonation application for want of prosecution in a belated criminal revision.

This case on which the reliance has been placed by the learned counsel, it had further went ahead by laying that when the Restoration application was filed, seeking recall of the rejection of the delay condonation application, the said Restoration application too was dismissed for want of prosecution which was sought to be recalled by the subsequent restoration application, as filed before the Court. In the said case, it was not dealing with the situation, which is involved adjudication herein, where legally sustainable criminal proceedings, which was suffering from any defects, which was to be determined on its own merit was dismissed for want of prosecution and a recall was sought for recall of an order of the principal proceedings which has been dismissed for want of prosecution in the revised call. This was a case where the Miscellaneous Application before the actual proceedings matures and come into judicial existence, was sought to be restored by a Recall Application, and hence this case was also altogether under a different circumstances and under a different pedestal altogether and that would not apply in the instant case.

Reverting back to the present case. As far as the present case is concerned, this revision was admitted by the coordinate Bench of this Court on 27th November 2013, and after the admission it was dismissed for want of prosecution due to the absence of the counsel in the revised call by the co-ordinate Bench of this Court on 8th March 2019. The legal implication of the effect of the order dated 8th March 2019, dismissing the criminal revision in default, would be that as far as the adjudication of the revision on its own merit is concerned, that has come to an end with the dismissal of the revision in default. Hence, since under the Criminal Law, there is no concept of restoration or recall of an order having bearing on merits of matter, the application itself, seeking restoration of the order dated 8th March 2019 would not be sustainable under law due to bar of section 362 of Cr.P.C., because if at all the revisionist has got any grievance against the order dated 8th March 2019, which would tantamount to be an adjudication of the revision itself, which stands dismissed, the revisionist may have a recourse resorted to which is otherwise available to him in accordance with law, but, however, the restoration application may not be the remedy available to him under the Code of Criminal Procedure being violative of the provisions contained under Section 362 CrPC.

Consequently, this Court holds that the Restoration Application, as preferred by the revisionist to recall the order dated 8th March 2019, dismissing the criminal revision in default is not sustainable and is not legally maintainable before the Court, consequently, the application, seeking restoration of the order dated 8th March 2019, lacks merit and is accordingly dismissed, without prejudicing the rights of the revisionist, if he is so advised, to seek his appropriate remedy before an appropriate legal Forum as available to him as per law.