' These are six connected Misc. Applications in these revision petitions, involving a common question, whether a revision application having been dismissed for default of appearance could again be restored to the file on sufficient cause-being shown. It has been argued by Mr. Imdad Ali Agha that a criminal revision application cannot be dismissed for default as there is no such enabling provision in the Cr. P. C. Therefore, the order dismissing the petition for default would be an order without jurisdiction. That in any case the order not being on merits the High Court in the exercise of inherent powers under section 561-A could restore the revision application and pass fresh orders on merits.
2. Section 369 of the Cr. P. C. Provides that no Court after it has signed the judgment shall alter or review the same except to correct a clerical error. It is a general principle of law that when a matter has been finally disposed of by a Court the Court becomes functus officio and cannot entertain a fresh prayer for the same relief unless and until the previous order has been set aside. Section 369 does not in terms apply in respect of final orders other than the judgments but the general principles would apply in case of orders also and such orders cannot ordinarily be reviewed or altered. Therefore an order which has been passed on merits even in revision, becomes a final order and cannot be reconsidered.
3. The case is different, however, when the High Court dismisses a criminal revision application for default or where an order is passed to the prejudice of any party without allowing such party an opportunity for being heard in support of his case. The question then arises whether in such a case High Court has the power to restore the case and hear the matter again on merits. There are number of conflicting decisions of different High Courts on this question. In Edward Few v. Emperor
(1) it was held that the High Court has no power to alter or review its own judgment in a criminal case, once it has been pronounced and signed except in cases where It was passed without jurisdiction or in default of appearance without an adjudication on the merits or to correct a clerical error ; nor is there any conflict between this section (561-A) and section 369 of the Code.
Thus in the above case the inherent powers of the High Court to alter or review judgment and order passed in default of appearance and without adjudication on merits were deemed to exist to secure the ends of justice. In a Madras case reported in AIR 1924 Mad. 640 it has been held that where an order is passed to the prejudice of an accused without an opportunity having been {{FOOT NOTE}}
(1) 40 Cr. L J 763 {{FOOT NOTE}} ' given to him for being heard such an order would be without jurisdiction and the Court has power to entertain a fresh revision application to reconsider the matter. But in all other cases where a criminal revision application is dismissed for default of the petitioner, it has been held by High.
Courts of Madras (AIR 1923 Mad. 276) and Calcutta (AIR 1933 Cal. 870) that the High Court has no right to entertain a fresh application for the same relief. It has, however, been held by the High Courts of Lahore (AIR 1924 Lab. 310), and Rangoon (AIR 1928 Rang. 288) that in such cases the High Court has power to set aside the order of dismissal as an order of dismissal for default is not a judgment and it can restore the revision applications for being heard on merits under its inherent powers under section 561-A. In AIR 1952 All. 926, when the revision application was taken up, the fact that the counsel bad sent his illness slip, was not brought to the notice of the Court. Similarly the medical certificate of the accused/applicant which was on the record was also not brought to the notice of the Court. The Court accordingly dismissed the revision for default. It was held that the Court could, under its inherent jurisdiction to secure the ends of justice, restore the revision. In AIR 1932 Raj. 50, in a Division Bench decision it was observed that where a criminal revision is dismissed for default without going into its merits and there is no fault on the part of the applicants' lawyer who was waiting in Court in which the case was listed, the High Court should exercise its power under section 561-A to secure the ends of justice so that the revision may be disposed of after considering the grounds raised.
4. Apart from the old decisions referred to above there are reported rulings of or own Supreme Court and High Courts on the same question. In Ghulam Hussain Shah v. Ghulam Murtaza and 4 others (0 it was observed by Waheeduddin, J., as he then was, as under : "I am conscious of the fact that general principles of finality of judgment attaches to the decision or order of the High Court passed in criminal cases. But it will not apply to cases where an order is 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 Abdul Ghafoor v. Abdul Karim and 2 others (2) Mushtaq Hussain Munir, J. Was of the opinion that "Section 569-A, Cr. P. C. Does not confer any additional powers on this Court, but merely declares that such inherent powers as the Court possesses, shall not be deemed to be limited or affected by anything contained in the Code. As far as I am aware, there is no inherent power in the High Court to alter or review its own judgment once it has been pronounced and signed except in cases where it has been passed either without jurisdiction or in default of appearance without adjudication on merits. It cannot be said that the order passed by my learned brother dismissing the revision petition was either passed without jurisdiction or in default of appearance. When the party, which had preferred the revision petition wished not to proceed with it, there was no alternative for the Court, but to dismiss it". In the case of Mohammad Hanif v. The State (3) late Tufail All A. Rahman, C.
J.,, observed that section 369, Cr. P. C. Has no {{FOOT NOTE}}
(1) PLD 1970 SC 335 (2) PLD 1971 Lah. 616
(3) PLD 1974 Kar. 22 {{FOOT NOTE}} ' application in such a case and there is no legal bar to recalling of the earlier orders when the revision application has been dismissed without hearing the affected party. The High Court would have the power to revoke, review or alter its own earlier orders in exceptional cases and for exceptional reasons., In Shah Rot Bus Service v. The State (1) the question of inherent powers of the High Court to restore petitions dismissed as withdrawn was considered. In that case a revision petition had been admitted for regular hearing by the High Court of West Pakistan but subsequently it was dismissed as withdrawn. The petitioner firm then invoked the inherent jurisdiction of the High Court under section 561-A, Cr. P. C. For restoration of the revision petition. The Court held that the question of restoration did not arise. The petitioner firm then came up for Special Leave to Appeal to the Supreme Court. It was observed that inherent power of the High Court is of a very wide and undefinable nature and in exercise of its 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 the express provisions of the Code.
5. A similar question arose in Bashir Khan v. District Magistrare (2). It was contended that once bail had been refused it cannot be granted. The contention was repelled by Mr. Justice B. Z. Kaikaus who observed : "By virtue of section 21, General Clauses Act (X of 1897) the authority which can pass an order is entitled to vary, amend, add to or rescind that order. Therefore bail can be granted after it was refused."
' In the case of Mohammad Ishaque v. The State (3) a revision petition was filed in the High Court against a conviction which was dismissed for non-prosecution by A. R. Khan, J, as he then was. The petitioner again came up before the Court under sections 439 and 561-A, Cr. P. C. Seeking rehearing of the revision application on merits. It was observed by Mushtaq Hussain Munir, J. While dealing with this case as under : "There are several authorities to the effect that if criminal revision application is dismissed in default without any decision on merits, the petition can be re-heard. One of these judgments is by Abdul Qadir, T. (as he then was) in the case of Kishen Singh v. Girdhari Lai and another (AIR 1924 Lab. 310). An objection was taken before his Lordship that it was doubtful whether a criminal revision petition once dismissed could be got restored. It was held 'as the petition was never decided on the merits, I do not see any force in this objection'. Relying on a case reported in Bibhuty Mohun Roy v. Dosinmoni Dass ((1909) 10 Cr. L J 287) it was held that a petition dismissed in default without any decision on merits can be reheard.
' In the case of Ramautar Thakur and others v. State of Bihar (AIR 1957 Pat. 33) a Division Bench of Patna High Court observed that '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 provision of section 561-A. Section 369 does not apply to order passed by the High Court in 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 affect the inherent power of the High Court, contained in {{FOOT NOTE}}
(1) 1969 SCMR 325 (2) PLD 1957 Lah. 892
(3) 19'70 P Cr. L J 412 {{FOOT NOTE}} ' section 561-A to restore a criminal application in revision dismissed for default, in appropriate cases."
' It was accordingly held in the Lahore case that since the first criminal petition filed by the petitioner had not been decided on merits nor on the facts of the case, the matter could be reheard.
6. Thus there is no express provision in the Criminal Procedure Code for dismissal of the revision petitions for non-prosecution. 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 for 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 had to be dismissed.
7. This will dispose of the common question involved in all these applications.