ASLAM RIAZ HUSAINJ-This appeal by Muhammad Ramzan (complainant) is directed against the order of the High Court dated 8-11-1971 dismissing his Revision Petition against the acquittal of the respondents.
2. The facts giving rise to the petition are that the respondents were tried by the Sessions Judge, Bahawalpur for offences under sections 148 and 302-149, P. P. C. The learned trial Judge, however, acquitted them vide his judgment dated 25-7-1970. The petitioner who was the complainant in the case, filed a Revision Petition against their acquittal but since neither he nor his counsel appeared on the date fixed for hearing, the Revision Petition was dismissed for default. After the lapse of more than a year, the petitioner filed another Revision Petition in the High Court which was dismissed by the same learned Judge vide the impugned order which read as follows
The first revision petition filed by the learned counsel was dismissed in default. The order shows that the case was called several times but nobody appeared. I do not think that in view of this state of affairs the petitioner is entitled to be heard. Dismissed."
3. The petitioner then filed a P. S. L. A. (No. 14(1) 1972) in this Court, which came up for hearing on 1- 12-1972. The learned counsel for the petitioner argued that there is no provision in the Code of Criminal Procedure permitting the dismissal of a `Criminal Revision for non-prosecution, and cited AIR 1923 Mad. 426 in support of his contention. Alternatively, he argued that his second Revision Petition should have been treated as an application for restoration of his first petition, and he should have been afforded an opportunity to explain his default for not pursuing the first application, and if sufficient reasons could be made out, the Revision Petition should have been decided on merits. Leave was granted to consider these contentions.
4. The questions of law raised in this case can be summed up briefly as follows:
(a) Whether a criminal revision petition can be dismissed in default without being decided on merits, and
(b) Whether the same can thereafter be restored by the High Court and be re-heard and decided on merits.
5. We have heard the learned counsel for the parties, and considered the contentions raised as well as authorities cited by them. We agree with the learned counsel that there is no specific provisions in the Code of Criminal Procedure providing for the dismissal of a revision petition in default. But then neither is there any provision in this Code barring the Courts from doing so. It is an old and well-known practice that when no one appears to press them the Courts dismiss such petitions, or for that matter, many other types of applications and petitions, e. g. Applications' under section 476 for initiating proceeding in case of offences committed during the judicial proceeding; bail applications under section 497 or 426, Cr. P. C. Applications for transfer under section 526.
There appears to be cogent reasons for such a practice because where a party who has moved the machinery of the Court, personally or through a counsel, he and his counsel are fully aware of the date fixed for its hearing, but deliberately or without reasonable excuse, absent themselves on that date, the Court would be quite justified in dismissing the case in default of their appearance, rather than proceeding to enquire into the matter with a view to decide it on merits without the assistance of the party or counsel and without even being sure as to whether the facts stated in the application or petition are correct. To do so might not only result in giving an incorrect decision but would also result in the waste of public time and money. It would also encourage the filing of frivolous applications, on nominal court-fees, with full knowledge that the petition has no merit, the only purpose being to gain time. The Court can spend the same time in deciding the cases of those who are serious in pursuing their matters. We are of the view that for reasons mentioned above, the dismissal in default of cases in which parties and their counsel fail to appear, would in fact, amount to preventing the "abuse of process of the Court" within the meaning of section 561-A, Cr. P. C.
6. Coming now to the next question namely whether or not the Court can restore a petition dismissed in default or disposed of otherwise than on merits, we again notice that there is no specific provision in the Code of Criminal Procedure providing such power, and recourse has, therefore, had to be taken by the Courts to the inherent powers conferred on them by section 561- A, Cr. P. C.
7. The scope of inherent powers of the Court under section 561-A, Cr. P. C. Was considered by this Court in Shahkot Bus Service Shahkot v. State (1969 SCMR 325). In that case, a criminal case had been registered against the petitioner transport firm and among other things, its route permits were taken into possession by the police. The petitioner's application for their return was dismissed by the Magistrate. The petitioner went up to the Court of Sessions but did not succeed. The petitioner then filed a Revision Petition in the High Court which was admitted to regular hearing. But on the date of hearing it was reported that the criminal case against the petitioner firm had been cancelled. The revision petition was accordingly dismissed as withdrawn. Later on, the petitioner on coming to know that the case has not been actually cancelled invoked the inherent jurisdiction of the High Court for the restoration of their revision petition. The investigating Agency, however, again reported that the case had been cancelled. The High Court, therefore, held that the question of restoration does not arise. But it went on to pass an order that the petitioner shall band over the route permits to the Investigating Agency. Feeling aggrieved by this order, the petitioner came to this Court (i. e. The Supreme Court) mainly on the ground that the inherent jurisdiction of the Court under section 561-A did not extend to passing an order which could have been passed under sections 561-A, 517 4ad 523, Cr. P. C. While dismissing this petition, Mr. Justice Hamood-ur-Rahman (the then Chief Justice) observed as follows: "It is, no doubt, true that where express provision is made in the Code itself for a particular purpose, recourse cannot be had to the inherent jurisdiction to achieve the same purpose but at the same time it has to be pointed out that the inherent power of the High Court is of a very wide and indefinable nature and in exercise of this power the High Court can make all such orders which may be necessary to do real and substantial justice, and prevent abuse of the process of the Court, subject only to the limitation that it cannot override an express provision of the Code."
8. A matter involving a somewhat similar question as involved in the present caw, came up before this Court in Gulzar Hasan Shah v. Ghulam Murtaza and others (PLD 1970 SC 335). It related to a bail application. The bail of the accused in that case was cancelled by the High Court in their absence. On learning of the same, the accused made an application to the High Court under section 561-A, Cr. P. C. Praying that the ex parte order of cancellation of their bail be set aside and they be admitted to bail. The High Court thereupon recalled the aforementioned ex pate order.
Aggrieved by the said recall, the complainant came up to the Supreme Court. One of the questions on which leave was granted to him was whether the High Court could by the exercise of its inherent jurisdiction, recall or reverse an order recorded and signed by it. The judgment was delivered for the Court by Mr. Justice Waheeduddin Ahmad. The learned counsel for the petitioner in that case raised the contention that the High Court was not competent to recall the order passed by it earlier because that would amount to a review of its own order which is not permissible by section 369 of the Code of Criminal Procedure. In support of his contention he relied upon some reported judgments as also on the provisions of section 369, Cr. P. C. Which reads as follows "Section 369.-Save as otherwise provided by this Code or by any other law for the time being in force or "in the case of a High Court by the Letters Patent or other instrument constituting such High Court" no Court when it has signed its judgment, shall alter or review the same, except to correct a clerical error."
Having considered this contention, Mr. Justice Waheeduddin Ahmad observed as follows: "There is no quarrel with this proposition of law. The question for consideration is whether section 369 of the Criminal Procedure Code controls section 498, Cr. P. C. Or section 561-A of the Cr. P. C.
Applies to it. In my opinion section 369 of the Cr. P. C. Does not control section 498 and in suitable cases section 561-A of Cr. P. C. Can be invoked. In the first place, an order passed under section 498,Cr. P. C. Is not a judgment within the meaning of section 369. Moreover, section 369 of the Cr. P.
C. Is in the Chapter relating to original trial and unless it is specifically applied to other proceedings under the Cr. P. C. It cannot be said to have any application to other proceedings."
His Lordship observed further at page 341 of the reported judgment at portion marked `A' that "I am conscious of the fact that general principles of finality of judgment attaches to the decision or order of the High Court passed without jurisdiction or without giving any opportunity to the parties of being heard. In such cases section 561-A, Cr. P. C. Can be invoked for the purpose of doing justice between the parties and for seeing that the act of the Court does no injury to any of the parties. This is an inherent power of the Court and has been preserved by the above provision of law. In my opinion, in rare and exceptional cases the High Court has inherent power to revoke, review or alter its own earlier decision in cases which are not governed by sections 369, 424 and 430,Cr. P. C. With a view to give effect to any order under the Code or to prevent abuse of the process of any Court or otherwise to secure the ends of justice. It is, however, not possible to enumerate the circum-- stances in which this provision can be invoked.
While holding that (in view of the above-noted observations) the High Court was justified in entertaining an application for considering the question whether or not the ex parte order of cancellation of bail should be recalled, the learned Judge was pleased to observe further that: "Even otherwise the order dated the 8th August, 1969 suffers from the principles of natural justice. It was passed in the absence of respondents for no fault of theirs. It was, therefore, a nullity in the eye of law and the question involved should have been re-examined and decided in the presence of the parties------."
9. In a number of cases, the inherent power under section 561-A, Cr. P. C. Has also been exercised by the superior Courts in restoring applications and petitions "dismissed in default".
As early as 1909 in Bibhuty Mohun Roy v. Destmoni Dassi ((1909) 10 Cr. L J 287) the High Court of Judicature at Calcutta held that a petition dismissed in default without any decision on merits can be re-heard.
10. The above view was followed by the Lahore High Court in Kishan Singh v. Girdhary Lal and another (AIR 1924 Lah. 310) in which Mr. Justice Sir Abdul Qadir while considering the question of restoration of a criminal revision, dismissed in default, observed that as the petition had never been decided on merits, there was no force in the objection that it could not be- heard and decided on merits.
11. Similar view was taken by the Rangoon High Court in Ibrahim and another v. Emperor (AIR 1928 Rang. 288). The Lahore High Court also considered the question of restoration of revision petition "dismissed for non-prosecution in Muhammad Ishaque v. The State(1970 P Cr. L J 412) and after considering the case-law, cited with approval, the following observation in a case from the Indian Jurisdic--tion, namely Ramautar Thakur and others v. State of Bihar (AIR 1957 Pat333)
"There is no statutory provision for restoration of a criminal revision application dismissed for default. The power to restore such a case must, therefore, be an inherent power, which is saved by the provisions of section 561-A. Section 369 does not apply to an order passed by the High Court in the exercise of its revisional jurisdiction. Section 430 also does not apply to decisions or orders made in revision by the High Court under Chapter XXXII. Therefore those sections cannot at all bar or effect the inherent power of the High Court, contained in section 561-A to restore a criminal application in revision dismissed for default in appropriate cases.
An order of dismissal for default of a criminal revision application is not a 'judgment' but a mere order, and, therefore, on this ground also section 369 will not bar the inherent jurisdiction of the High Court to pass an order of restoration, for the ends of justice, in appropriate cases."
Relying on the above-noted cases and some other judgments, his Lordship restored the revision petition in the following words : "Since the first criminal petition filed by the petitioner bad not been decided on merits nor on the facts of the case; following the afore--mentioned decision, I hold that the matter can be re-heard."
12. A very exhaustive judgment upholding the same view has been delivered by a learned Single Judge of the Karachi High Court in Abdullah v. Din Muhammad Shah and 4 others (PLD 1976 Kar.
1184). A similar question had arisen in that case and his Lordship after considering almost all the case-law, including the two Supreme Court authorities referred to above, had finally observed as follows: "Thus there is no express provision in the Cr. P. C. For dismissal of the revision petitions for non- prosecutions. There is, however, nothing to suggest that such an order cannot be passed when the party who filed the petition, fails to prosecute his remedy and the party and the counsel remain absent on the date of hearing of the petition. Since the Court can, under these circumstances, dismiss a petition without considering the same on merits, then for sufficient reasons shown the Court is also empowered to rescind such orders if a case is subsequently made out of rehearing the petition for adjudication on merits to secure the ends of justice. There is no bar, in my opinion, in thus restoring a petition dismissed for default. I am fortified in this view by the number of decisions cited above, and there is almost a consensus of judicial opinion that the High Courts have ample powers in the exercise of inherent jurisdiction under section 561-A to do substantial justice in all such cases. These powers cannot, however; be invoked as a matter of routine but they must be exercised sparingly in deserving cases when there is no other remedy open to the affected party.
These applications for restoration can accordingly be decided after considering the facts and circumstances under which the respective applications have to be dismissed."
13. Respectfully following' the view taken by this Court' in cases of Gulzar Hasan and Shahkot Bus Service, we hold that order dismissing a petition or an application in default of the appearance of the party or it counsel, without touching upon its merits, is not covered by the bar create by section 369, Cr. P. C. With respect to judgments delivered and signed b a Court.
Secondly, in appropriate cases where the party or its counsel is able give sufficient reasons for their absence on the date fixed for hearing of the case or if the justice of the matter so requires, the Court has ample power under section 561-A, Cr. P. C. To restore a revision petition which has no been decided on merits but has simply been dismissed in default of the appearance of the party or its counsel.
14. In the case in hand, firstly, the revision petition in question, which was dismissed in default, was against the acquittal of the respondents. Secondly, in his subsequent Revision Petition the learned counsel for the petitioners has not cared to give any reasons, whatsoever for his own as well as the petitioners' absence on the date of hearing of the first petition. Moreover, even if the second petition had been treated as an application for the revival or restoration of the earlier one, the said Revision Petition did not merit to be restored because it had, admittedly, been filed after the lapse of more than a year, for which no explanation has been given.
For the above-mentioned reasons we do not consider this to be a fit or proper case for interference with the impugned order even though the High Court failed to consider the question of the restoration of the first petition in the exercise of its inherent jurisdiction under section 561-A, Cr. P. C.
As a result of the above discussion, the appeal is dismissed.