Case Note & Summary
The matter arose from a conviction under Section 138 of the Negotiable Instruments Act, 1881. The applicant, a proprietary concern, was convicted and sentenced by the trial court, and his appeal before the Sessions Court resulted in an upheld conviction with modified sentence. Aggrieved, the applicant filed Criminal Revision Application No. 8 of 2003 before the High Court of Bombay at Goa. However, on three consecutive hearing dates, no counsel appeared for the applicant, and on 21 April 2004, the High Court dismissed the revision for non-prosecution. Subsequently, the applicant filed Criminal Miscellaneous Application No. 6 of 2005 under Section 482 of the Code of Criminal Procedure, 1973, seeking restoration of the dismissed revision, along with an application for condonation of delay. The core legal issue was whether such an application for restoration was maintainable in view of the express prohibition contained in Section 362 of the Code, which states that no court shall alter or review its judgment or final order except to correct a clerical or arithmetical error. The applicant’s counsel argued that the inherent powers under Section 482 could be invoked to restore the revision, relying on a Patna High Court decision and a note in the A.I.R. Manual, which suggested that a dismissal for default is not a judgment and hence not barred by Section 369 of the old Code. The respondent’s counsel contended that the specific bar under Section 362 precluded any such restoration or review, especially given the Supreme Court’s consistent rulings that inherent powers cannot override express statutory prohibitions. The Court examined the language of Section 362, noting that the new Code expanded the bar to include final orders, not merely judgments. The dismissal for default of a revision application was held to be a final order disposing of the case. The Court then surveyed a series of Supreme Court decisions: Sankatha Singh v. State of Uttar Pradesh laid down that a court cannot review its order when specifically prohibited, and inherent powers cannot be used to circumvent such prohibition. State of Orissa v. Ram Chander Agarwala clarified that Section 482 cannot be invoked for review when Section 362 applies. Hari Singh Mann v. Harbhajan Singh Bajwa reiterated that upon signing a final order, the court becomes functus officio and cannot entertain a fresh prayer for the same relief, except for clerical corrections. R. Annapurna v. Ramadugu Anantha Krishna Sastry held that the High Court has no power to recall or review its own order under Section 482. The Court observed that the concept of restoration is unknown to the Code of Criminal Procedure, 1973; the only possible remedies were recall or review, both barred. Consequently, the application for restoration and the accompanying application for condonation of delay were dismissed as not maintainable.
Headnote
A) Criminal Procedure - Review/Recall of Orders - Section 362 Code of Criminal Procedure, 1973 - Final Order - Restoration not maintainable - The application sought restoration of Criminal Revision Application No. 8/03 dismissed for non-prosecution. The Court held that Section 362 expressly bars review or alteration of a judgment or final order except for clerical or arithmetical errors. The dismissal for default is a final order, and the inherent power under Section 482 cannot be used to circumvent this bar, as established by Supreme Court decisions. The court becomes functus officio upon passing of the final order, and the concept of restoration is unknown to the Code. Therefore, the application for restoration was dismissed as not maintainable. Held: No power to restore a dismissed revision application exists. (Paras 5-18)
Issue of Consideration
Whether an application for restoration of dismissal of Criminal Revision Application filed under Section 397 of the Code of Criminal Procedure, 1973 is maintainable.
Final Decision
Criminal Misc. Application No. 6 of 2005 and the application under Stamp No. 21/2005 (for condonation of delay) are dismissed as not maintainable.
Law Points
- Section 362 CrPC prohibits alteration or review of a judgment or final order except to correct clerical or arithmetical errors
- inherent power under Section 482 CrPC cannot be invoked to override a specific statutory prohibition
- dismissal for non-prosecution of a criminal revision application is a final order
- court becomes functus officio upon signing a final order
- concept of restoration is unknown to the Code of Criminal Procedure
- 1973
Case Details
2005 LawText (BOM) (06) 30
Criminal Misc. Application No.6 of 2005 in Criminal Revision Application No. 8 of 2003
Shri A. S. Salkar, Advocate for the Applicant; Shri D. Pangam, Advocate for the Respondent No.1; Shri S.N. Sardessai, Public Prosecutor for the Respondent No.2
M/s. Venus Steel Products through its Proprietor Shri Jaime S. Lazaro
Shri Michael Francis Pinheiro (since deceased) through his widow and State (Through P.P.)
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Nature of Litigation
Criminal miscellaneous application seeking restoration of a criminal revision application dismissed for default.
Remedy Sought
The applicant sought restoration of Criminal Revision Application No.8 of 2003, which was dismissed for non-prosecution, by invoking inherent powers under Section 482 of the Code of Criminal Procedure, 1973.
Filing Reason
The revision was dismissed because counsel failed to appear on three consecutive dates; the applicant desired to have the revision heard on merits.
Previous Decisions
The applicant was convicted under Section 138 of the Negotiable Instruments Act, 1881 by the trial court; the Sessions Court upheld the conviction but modified the sentence; the High Court dismissed the criminal revision application for non-prosecution on 21 April 2004.
Issues
Whether an application for restoration of a criminal revision application dismissed for default is maintainable under the Code of Criminal Procedure, 1973, given the bar under Section 362.
Submissions/Arguments
The applicant argued that the order of dismissal could be set aside by invoking the inherent powers of the Court under Section 482 of the Code of Criminal Procedure, 1973, relying on the decision in Ramautar Thakur and others v. State of Bihar and a note in the A.I.R. Manual, which suggested that such dismissal is not a judgment and can be restored.
The respondent argued that the power of restoration or review is not available due to the specific bar created by Section 362 of the Code of Criminal Procedure, 1973, and that the Supreme Court has consistently held that inherent powers cannot override such express prohibitions.
Ratio Decidendi
Section 362 of the Code of Criminal Procedure, 1973 prohibits a court from altering or reviewing its judgment or final order except to correct clerical or arithmetical errors. The dismissal of a criminal revision application for default constitutes a final order. The inherent power under Section 482 cannot be invoked to circumvent this express bar, as held by the Supreme Court. Consequently, no application for restoration of a dismissed revision is maintainable.
Judgment Excerpts
The point which requires consideration is whether an application for restoration of dismissal of Criminal Revision Application filed under S.397 of the Code, is maintainable.
Section 362 of the Code reads as follows: “ 362. Court not to alter judgment. Save as otherwise provided by this Code or by any other law for the time being in force, no Court when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error.”
As far as the order dated 21.4.04 is concerned, there can be no dispute that it is a final order dismissing the revision petition.
Section 362 of the Code mandates that no court, when it has signed its judgment or final order disposing of a case shall alter or review the same except to correct a clerical or an arithmetical error. ... The court becomes functus officio the moment the official order disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or an arithmetical error.
Procedural History
The applicant was convicted under Section 138 of the Negotiable Instruments Act, 1881 by the trial court in C.C. No. 207/N/96/F. On appeal, the Sessions Court upheld the conviction but modified the sentence on 17 January 2003. The applicant filed Criminal Revision Application No. 8 of 2003 before the High Court. None appeared for the applicant on 20 February 2004, 12 April 2004, and 20 April 2004. On 21 April 2004, the High Court dismissed the revision for non-prosecution. The applicant then filed Criminal Misc. Application No. 6 of 2005 under Section 482 of the Code of Criminal Procedure, 1973, seeking restoration of the revision, along with Application No. Stamp 21/2005 for condonation of delay. By the present judgment, both applications were dismissed as not maintainable.
Acts & Sections
- Negotiable Instruments Act, 1881: 138
- Code of Criminal Procedure, 1973: 397, 482, 362
