- (1.) VIJAY Kumar Verma, J. Simple question for consideration in this case is whether the order dismissing criminal revision for default or non-prosecution can be recalled.
(2.) THE relevant facts leading to the filing of this application, in brief, are that the applicant had preferred Criminal Revision No. 1161 of 1996 against the order dated 16-7-1996 passed by 1st Additional Sessions Judge, Bulandshahr in Criminal Revision No. 67 of 1994, Balak Ram and Ors. v. State. That revision was listed for hearing before Hon'ble O. N. Khandelwal, on 5-1-2005. When the case was called out, none appeared on behalf of the revisionist. THE following order was passed by the Court on that date : "none appeared on behalf or the revisionist, though case called twice. Learned A. G. A. is present on behalf of the respondents. THE revision is dismissed for non prosecution Interim order, if any, is vacated. " Application to recall the order dated 5-1-2005 has been moved by the applicant in this case. I have heard Sri Sunil Kumar, learned Counsel for the applicant, learned A. G. A. for the State and Sri Prem Prakash, learned Counsel for opposite parties No. 2 and 3.
(3.) IT was submitted by learned Counsel for the applicant that there is no provision in the Code of Criminal Procedure (Cr. P. C. for short) to dismiss the revision for non prosecution or in default and hence, the order dated 5-1-2005 passed by this Court in Criminal Revision No. 1161 of 1996 can be recalled in exercise of inherent powers under Section 482, Cr. P. C. IT was further submitted that Counsel for the revisionist was busy in Court No. 4 on 5-1-2005 in Civil Misc. Writ Petition No. 54 of 2005, Kalyan Khan and Ors. v. Prescribed Auti orates and Ors. , and for that reason, he could not reach to argue the revision on that date and hence, on this ground, the order dated 5-1-2005 should be recalled to secure the ends of justice. On the contrary, it was vehemently contended by Sri Prem Prakash, learned Counsel for opposite parties No. 2 and 3 that there is no provision in Cr. P. C. analogous to Order IX, Rule 9 or Order XLI, Rule 19, C. P. C. and hence, order dated 5-1-2005 passed by this Court in Criminal Revision No. 1161 of 1996 cannot be recalled. In support of this submission, the learned Counsel has placed reliance on Hazi Mahamud Ali v. The State of Tripura, 2006 Cr LJ. 4259, In Re : Pratibha Saxena, 2006 Cr L. J. 4285; and Hindustan Construction Co. Ltd. and Anr. v. Gopal Krishna Sengupta and Ors. , (2003) 11 SCC 210. Further contention of learned Counsel for the opposite parties was that in view of the bar under Section 362, Cr. P. C, this Court has no power to recall the order dated 5-1-2005.;