SHRI AJOY BANERJEE AND ANR. Vs. SULATA BANDOPADHYAY AND ANR.

JUDGEMENT

(1.) THE Petitioner herein Impugns the order dated 22.6.79 of the Sessions Judge, Kamrup, Gauhati dismissing the Criminal Motion No. 50 (K -4) of 1978 for default of appearance of the Petitioner, The criminal motion itself was against the final order passed under Section 145, Code of Criminal Procedure.

(2.) MR . K. Sarma, the learned Counsel for the Petitioners, submits that the criminal motion was fixed for hearing on 22.5.79, but the same was not taken up on that day and was adjourned till 28.6.79 for hearing. The learned Advocate for the Petitioner made a mistake in nothing down the date in his diary having noted it as 26.6.79 instead of 22.6.79 as a result of which he did not appear when the case was called for hearing on 22.6.79, and consequently, the criminal motion was dismissed by the impugned order. Counsel submits that the learned Sessions Judge should not have dismissed the criminal revision for default of appearance but should have disposed of it on merit as there is no provision for dismissal of a criminal revision for default in the Criminal Procedure Code. He further submits that the order has caused immense prejudice to the Petitioners.

(3.) COUNSEL for both sides agree that the impugned order is a simple order for dismissal for default of appearance and not an order on merit. Counsel further agree that there is no express provision to the Code of Criminal Procedure for dismissing a Criminal revision for default. The question is, when despite this position a criminal motion is dismissed for default whether this Court can entertain another revision application exercising it's inherent powers Under Section 482 Code of Criminal Procedure Section 482 Code of Criminal procedure saves the inherent power of the High Court so that nothing in the Code of Criminal Procedure shall be deemed to limit or affect the inherent power of the High Court to make, such orders as may be necessary -(a) to give effect to any order under this Code, or (b) to prevent abuse of the process of any Court, or (c) otherwise to secure the ends of justice. Counsel agree that this case cannot be covered by (a) and (b) above. The question is whether it can be covered by (c)? when a party takes his grievance to the Court he may be heard, but in a criminal motion under Section 397 the Sessions Judge may call for and examine the records of any proceedings before any inferior criminal Court situate within its or his local jurisdiction for the purpose, of satisfying itself or himself as to correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such Inferior Court. This does not envisage that the party has a right to be heard but ordinarily parties are heard and natural justice may demand that the party be heard. In this particular case a date was fixed for hearing and the Petitioner was expected to be heard but because of inadvertent noting down of a wrong date as 26.6.79 instead of 22.6.79 the counsel could not appear and consequently it resulted in the Petitioner being not beard and the petition dismissed. Under such circumstances following the guidelines given in : AIR 1978 S.C. 47 and : AIR 1980 S.C. 258 and this Court's order in Criminal Revision No. 336 of 1981, I am inclined to take the view that it is a fit case where to secure the ends of justice the order of dismissal for non -appearance be set aside and the revision application be Restored to file in its original number and remanded to the learned Sessions Judge to dispose of it on merits according to the law and it is ordered accordingly.