Manish Sen vs Sukhlal
2025 Latest Caselaw 482 MP

Madhya Pradesh High Court

Manish Sen vs Sukhlal on 7 May, 2025

Author: Vishal Mishra

Bench: Vishal Mishra

          NEUTRAL CITATION NO. 2025:MPHC-JBP:22021




                                                                    1                             MCRC-11296-2025
                                IN     THE       HIGH COURT OF MADHYA PRADESH
                                                       AT JABALPUR
                                                            BEFORE
                                              HON'BLE SHRI JUSTICE VISHAL MISHRA
                                                        ON THE 7 th OF MAY, 2025
                                              MISC. CRIMINAL CASE No. 11296 of 2025
                                                       MANISH SEN AND OTHERS
                                                               Versus
                                                        SUKHLAL AND OTHERS
                           Appearance:
                                Shri Shivam Hazari - Advocate for petitioners.
                                Shri S.S. Baghel - Public Prosecutor for respondent No.2/State.

                                                                        ORDER

This petition under Section 482 of the Code of Criminal Procedure, 1973 read with Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 has been filed seeking for restoration of M.Cr.C. No.2308 of 2025 which was dismissed for non-compliance of peremptory order dated 14.02.2025.

2. Counsel appearing for the petitioners submitted that 15 days' time was granted to remove the default of typed copies in five pages. The petitioners had already moved an application for ignoring the default bearing I.A.

No.2608 of 2025, but the same has not been considered by the Registry of this Court. Owing to non-compliance of the peremptory order dated 14.02.2025 passed in M.Cr.C. No.2308 of 2025 was dismissed by the Registry of the Court on 05.03.2025. It is pointed out that the default were already cured by filing the typed copy of the documents, therefore, the petition should be allowed and restored to its original number for which he has relied upon the judgment passed by the Allahabad High Court (Lucknow

NEUTRAL CITATION NO. 2025:MPHC-JBP:22021

2 MCRC-11296-2025 Bench) in the case of Jawahar Lal @ Jawahar Lal Jalaj vs. State of U.P., 2015 SCC OnLine All 8899 and has argued that in term of the inherent powers granted to the High Court under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 the restoration can always be allowed. It is a dismissal for non-compliance of the peremptory order passed by this Court, there is no order on merits by the Court. The petitioners are ready to compensate for the fault which has been committed. For the fault of the counsel the parties should not be made to suffer as the peremptory order was to be complied with by the counsel.

3. State counsel has vehemently opposed the contentions and supported the impugned order pointing out the fact that there is no provision for

restoration under the criminal jurisprudence, however, he could not dispute the fact that there is no order on merits passed by the Court, it was only a peremptory order based upon which the petition has been rejected.

4. Heard the counsels for the parties and perused the record.

5. The record indicates that the dismissal of the M.Cr.C. was for non- compliance of the peremptory order passed by the Court on 14.02.2025. The default which has been pointed out was with respect to the document being not legible. The record further indicates that the application for ignoring the default was filed. However, 15 days' time was granted by the Court to cure the default. The order-sheet dated 14.02.2025 does not reflect the presence of any parties. Under these circumstances, the analogy that for the fault of the counsel, the litigant should not be made to suffer can also be applied (See :

AIR 2001 SC 2497, M.K.Prasad Vs. P. Arumugam, 2007 (5) MPHT 470,

NEUTRAL CITATION NO. 2025:MPHC-JBP:22021

3 MCRC-11296-2025 Dindayal Bansal Vs. Gwalior Nagar Tatha Gram Vikas Pradhikaran, AIR 1981 SC 1400, Rafiq and Another Vs. Munshilal and Another).

6. Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 gives inherent powers to the High Court to exercise in case certain illegalities are being committed and to do complete justice in the matter. Even otherwise, if Section 362 of the Cr.P.C. is taken note of then there is no bar in recalling of any order. A Full Bench of Rajasthan High Court in the case of Habu vs. State of Rajasthan, AIR 1987 RAJ 83 has considered the question that, 'whether the judgment given in absence of the appellant or his counsel but the case decided on merits, can be recalled by the Court in its inherent powers under section 482, Cr.P.C.'. The Court of has held as under:-

"38. There are two views available on the point. According to one view Section 362 Cr. P.C. has been held to be mandatory and puts complete bar and it has been therefore, held that Section 482 Cr. P.C. can also not be invoked for the purposes of reviewing or altering the judgment. The other view is that re-calling is different than reviewing and altering and if the Court is of the opinion that gross injustice has been done, then Section 482 Cr. P.C. should be invoked to re-call the judgment and re-hear the case. !n fact the earlier view has impliedly been done away with by their Lordships of the Supreme Court in Sankatha Singh's case (AIR 1962 SC 1208) (supra). Their Lordships have held that the appellate Court had no power to review or restore an appeal which has been disposed of under Sections 424 and 369 Cr. P.C. (old). Similar was the view taken in State of Orissa v. Ram Chandra, (AIR 1979 SC

87) (supra). Sankatha Singh's case has been referred to in Sooraj Devi's case (AIR 1981 SC 736) (supra) wherein also their Lordships have held that inherent powers cannot be invoked when there is a complete bar. Scope of Section 482 Cr. P.C. was then considered by their Lordships in Manohar Nathu Sao Samarth v.

Marot Rao, (AIR 1979 SC 1084) (supra). Thus on one side as mentioned above the principles which have been laid down by their Lordships of the Supreme Court can be summarised as under:-

1. That the powers to deal with the case must flow from the

NEUTRAL CITATION NO. 2025:MPHC-JBP:22021

4 MCRC-11296-2025 statute,

2. That the powers given under Section 362 Cr. P.C. (S. 369 Cr. P.C. old) given to the Court for reviewing or altering is limited only for correcting an arithmetical or clerical error and specifically prohibits Courts from touching the judgment by taking away the powers altering or reviewing the judgment or the final order and as such principle of functus officio has been accepted.

3. That the prohibition contained in Section 362 Cr. P.C. (Section 369 Cr. P.C. Old) is not only restricted to the trial Court but also extends to appellate Court or the revisional Court."

7. If the facts of the present case are considered in the light of observations made by the Full Bench of the Rajasthan High Court and as there is no orders on merit passed by this Court and the same was dismissed only for non-compliance of the peremptory order, in such circumstances, this Court deems it appropriate to allow this petition. Accordingly, this M.Cr.C. stands allowed.

8. M.Cr.C.No.2308 of 2025 is restored to its original number subject to payment of cost of Rs.2,000/- (Rupees Two Thousand Only) to be deposited in the account of M.P. High Court Bar Association (SB A/c No.519302010000549, IFSC CODE: UBIN0551937, Union Bank of India, State Bar Council High Court Branch, Jabalpur, within a period of seven working days.

9. Copy of this order be kept in the file of M.Cr.C.No.2308 of 2025.

(VISHAL MISHRA) JUDGE

THK