A.H. Saikia, J.
We have heard Mr. B.D. Goswami, learned counsel for the petitioners. None appears for the respondent.
1. This revision petition has been placed before the Division Bench of this Court on being referred by the learned Single Judge (H. Mr. Justice A.P. Singh since retired) by his order dated 18.7.1997 for referring the matter for a final decision by a larger Bench by examining the correctness of this judgment and order delivered by the learned single Judge in Haji Sabajiuddin v. Banamali Das reported in (1982) 1 GLR 722 since the learned single Judge respectfully disagreed with the said judgment while deciding the Crl. Misc. Case No. 107/ 97 (Crl. Misc. Case No. 4(SH)/97) arising out ox Crl. Revision No. 459/96 wherein the solitary quest ion of law involved was as to whether the Court has the power to review its Judgment or final order disposing of a case by exercising inherent power under Section 482 of the code of Criminal Procedure (for short the 'code') notwithstanding the specific bar under Section 362 of the code to alter or review of such judgment and final order of disposals.
2. It would be pertinent to narrate the background of the case which has necessitated making this reference. The learned single Judge on 27.6.1997 having dismissed the Criminal Revision No. 459/96 for non-prosecution passed the following order.
This criminal revision was listed for hearing earlier. It has been adjourned on account of non-availability of the learned counsel for the petitioners on 9.6.1997 on 13.6.1997. To-day also the learned counsel for the petitioners are not present. No mention has been made for adjournment of the case from the side of the counsel for the writ petitioners. Sri S.R. Sen, learned counsel for the respondent is present.
The Criminal Revision relates to quashing or the complaint proceeding pending against the petitioners as C.R. Case No. 780(S)/96 in the Court of the Chief Judicial Magistrate, Shillong. The above Criminal case has arisen from the complaint lodged by Mr. V.S. Jafa, opposite party in this criminal Revision under Sections 500/506/120 of the IPC. An interim order was passed by this Court on exparte motion made by the petitioners on 23.9.1996, as a result the criminal proceedings in the Court of Chief Judicial Magistrate, Shillong in C.R. Case No. 780(S)/1996 have been stayed. From the ordersheet it appears further that after obtaining the interim
stay order the petitioners have not been taking any interest in the case. On 11.3.1997 the case was adjourned, on account or non-appearance of the learned counsel for the petitioner. Again on 31.3.1997 the case was adjourned on the ground of the absence of the learned counsel for the petitioners. On 9.6.1997 also for the same reason the case was adjourned. The petitioners, thus, appear to have lost their interest in the case after obtaining the stay order. I see no ground to await for the petitioners to argue the case, especially when no request on their behalf has been made. Thus the Criminal Revision is accordingly dismissed for non-prosecution. The exparte interim order dated 23.9.1996 is discharged.'
3. Aggrieved by the said dismissal order for non-prosecution, an application has been preferred by the Revision Petitioners seeking for modification/alteration of the said order on the ground that the petitioners were not at fault for non-appearance of their counsel engaged in the case at the time of hearing of the said revision. The said engaged Guwahati based Lawyer, with whom the petitioners had In constant touch had started from Guwahati to Shillong to appear and argue the case. But due to certain development faced by the said Lawyer he could not accomplish his visit for which reason the default in appearance of the said counsel was occasioned. The petitioners taking exception to the observations made by the learned Single Judge in the dismissal order to the effect that the petitioners had lost interest in the case after obtaining the stay order, stated that the petitioners were virtually interested in the case and their interest would not be doubted.
4. The said application was registered as Misc. Case No. 107/97 (Misc. Case No. 4(SH)/97). During the course of hearing of the aforesaid Misc. case, the learned Single Judge had to deal with the question of maintainability of the Misc. application on the ground that whether High Court had the power to re-call its own order of dismissal of the criminal revision for default of appearance of the learned counsel for the petitioner by exercising its inherent poorer vested under Section 432 of the Code.
5. It was argued before the learned Single Judge that Section 482 of the Code gives a wider power to the High court to dispense justice when an injustice has been caused to a particular party on account of something done by it or on account of some fault of the learned counsel representing him and the Court can re-call its own order and restore Justices to the affected party after granting opportunity of hearing to the parties. Much reliance was placed on a decision of this Court in Haji Sabajiuddin's case (supra). In the said decision.
the factual position of which was similarly situated with the case in hand, the learned Single Judge held that a final order disposing of a case passed otherwise than on merit can be recalled by exercising inherent power of the Court because the final order passed dismissing the criminal revision for default without disposing the matter on merit may be appropriately called as administrative order and as such, the same does not come within the purview of Section 362 of the Code. Relevant portion of the said judgment in paragraphs 8, 13 and 15 are quoted below :
'8. What will be the meaning of 'final order' for the purpose of Section 362 A final order may surely be understood as distinguished from any interlocutory order. Under Section 397(2) the powers of revision conferred by Sub-section (1) of that Section shall not be exercised in relation to any Interlocutory order passed in any appeal, inquiry, trial or other proceeding. Section 362 also may not apply to interlocutory orders. Does the expression 'final order disposing of a case' imply in it the idea of an order passed on merit of the case Will it also include an. order resulting in final ending of the case but not passed on its merit In other words, if an order of an administrative nature is passed which has nothing to do with the merit of the case, yet it resulted in bringing the case to an end, should it be within the purview of this Section 7 Does dismissal of a case for default of appearance amount to disposal of a case Does the idea of disposal necessarily imply hearing of the parties and/or exercise of the judicial mind on the merits of the case ?
13. From the forgoing decisions it may be deduced that an order of dismissal of a criminal revision Petition for default of appearance may not be regarded as a final order disposing of a case, as envisaged in Section 362 CrPC and as such, when one or more of the requirements of Section 482 CrPC are present, and where glaring injustice stages the Court at the face, such an order can be set aside and the Petition restored and heard on merit by the High court exercising powers under Section 482 CrPC.
15. Under the above circumstances and for the reasons discussed above, I am inclined to take the view that the impugned order of dismissal for default may not be treated as a final order disposing of the case on merit; and accordingly it is ordered that it toe set aside and the case be restored to file in its original number, and be listed for hearing. If the lower Court records have been sent back, they should be recalled forthwith.'
6. Upon careful consideration of the said decision of this court, the learned Single Judge in the present criminal revision was candidly hesitant to approve the view taken in the said Judgment. The learned Single Judge was of the opinion that the order of dismissal for default could not be interpreted as an administrative order when Court had passed the said order in exercising its judicial function. According to him, order of dismissal for default immediately on its passing took the shape of final order as opposed to interlocutory order and the same must be treated as 'final order disposing of a case' as contemplated by Section 362 of the Code. As such the inherent power of this court under Section 482 of the Codo cannot be resorted to due to bar under Section 362 of the Code. In this backdrop the matter has been referred to the Division Bench for appropriate decision on this question of law.
7. For better appreciation and proper discussion or the issue in hand, it would be necessary and expedient to refer Sections 362 and 482 of the Code which runs 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 erroro.'
'482. Saving of inherent power of High Court. - Nothing in this Code steal! Be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary 'to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.'
8. An ordinary reading of Section 482 or the Code indicates that the High Court is conferred with the inherent, powers to be exercised only for either of three purposes specifically mentioned in the said section a The High Court As not permitted to invoke this power in respect or any matter covered by the specific provision of the Code. It is settled position or law that the High Court in exercise of this inherent power in wider sense possesses :-
(a) the power to pass an order which may be necessary to give effect to any order under this Code;
(b) the power, using as a sheild, to prevent the abuse of the process of the court;
(c) the power to secure the ends of Justice and ; (d) finally the ultimate power to perform the real and substantial justice.
In order to make wrong right the necessary power is always available to the High court under this section but this power, being discretionary, always to be exercised with caution. This section is not intended to toe used against any express bar of law or to cause impediment in dispensing justice. If there is any provision in the code for redressal of grievance of any aggrieved party or any express bar of law postualated in other provision of the Code the inherent power of this Court is clearly not available. The power shall always to be exercised sparingly and with circumspection.
9. Equipped with such wider power of the High Court under Section 482 now let us interpret the provision of law laid down under Section 362 of the Code as quoted above, relating to the applicability of Section 482 to this section. Section 362 creates a bar to alter or review of any judgment or 'final order disposing of a case' of the Court. It is settled law that the court is not empowered to review or alter its own judgment. The word 'judgment' has not been defined in the Codes. But defination is only to be found in the code of Civil Procedure. Section 2(9) of the CPC defined judgment as follows :-
' 'Judgment' means the statement given by the Judge on the ground of a decree or order. In Black's Law Dictionary 'judgment' has been defined as follows :-
'Judgment. A sense of knowledge sufficient to comprehend nature of transaction.
The information of an opinion or notion concerning something by exercising the mind upon it.
The official and authentic decision of a court of justice upon the respective rights and claims of the parties to an action or suit therein litigated and submitted to its determination.'
Similarly the final order has also not been defined either in this Code or in the Code of Civil Procedure. In Black's Law Dictionary (Sixth Edition) 'final order' 'has been-defined as under:
'One which terminates the litigation between the parties and the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.'
Section. 362 of the code only contemplates the judgment and final order disposing of the case. Taking into consideration the meaning of both the 'judgment' and 'final order' as discussed above, we are of the view that the expression 'final order disposing of a case' definitely signifies a well considered and decisive order passed on merit. It is abundantly clear that when a case is dismissed for default of appearance of the aggrieved parry or the Lawyer representing the
party, there is no decision on merit. Once the matter is not decided on merit, we are of the opinion, by no stretch of imagination, the dismissal order for default may be termed as 'final order disposing of a case'.
10. In Haji Sabajiuddin's case (supra) that centres round the present reference, the learned Single Judge had addressed the issue with an elaborate discussion on the provisions oil Section 362 as well ass 482 of the Code. In arriving at a decision in the said case which was similarly situated with the present case. His Lordship had had occasioned to rely upon a catena of decisions on this point as viewed by various High Courts. In the said case, a clear distinction between judgment or final order passed on merit and a final order disposing the case passed otherwise than on the merit, had been culled out on the basis, of various decisions of other High Courts.
11. Disapproving the view setforth in the said decision the learned single Judge in his order dated 18.7.1997 held as follows :-
The Legislature added the words 'final order disposing the case' for the first time in 1973 when the code was recast. In the corresponding provision of Section 369 of the old Codo, the words 'final order disposing of the case' did not occur. In Section 369 the words 'judgment' alone was used which obviously meant that an order which is passed by the Court finally disposing of the case on merit would not be open for review unless special provisions is made to enable the Court in that regard. The provision as it stood before 1973 Code was re-legislated did not bar review of order passed by Courts without touching on the merits of the case it amounted to an order 'final disposing of the case' Realising the anomaly that orders which finally disposed the case without dwelling on the merits or the case may not come within the purview of the word 'judgment' the legislature as an abundant precaution tried to plug every conceivable situation to give fall meaning to the bar which is sought to impose by Section 362. It was for this reason that it added the words 'final order disposing of the case' along with the word 'Judgment' occurring in the Section from before.
In Haji Sabajiuddin's case (supra) emphasis has been given by the learned Single Judge on a interlocutory order or an administrative order with the purposes that 'order finally disposing the case' without going into the merits of case be either of the two. I do not find myself in a position to contribute to the philosophy that an order which is passed by the Court in exercise of its judicial function would be an administrative order only because for some of the other reason the
Court has not thought it necessary to decide the case on merits.
12. In a decision of Mysore High Court in Madian v. State of Mysore reported in 1963 Mysore-191 the Court had faced with a situation similar to the fact situation occurring in the instant case. In the said case also a criminal revision petition was rejected on the ground that Advocate was absent and also that there was no compliance of the objection. His Lordship dwelling upon in depth on the provisions of Sections 369 and 561-A of the old Code (corresponding to Sections 362 and 482 of the new Code respectively) held that High court in exercising of inherent power can re-consider the order of dismissal for default of appearance of the learned counsel for securing of the ends of justice. The relevant finding in paragraph-4 of the judgment is quoted below :-
'4. The legal position that emerges from the aforesaid discussion is that subject to the provisions contained in the code of Criminal Procedure and the Act constituting the High court, a judgment delivered or an order passed on merits is final after it is duly signed by the Court. The inherent power of the High Court cannot be exercised in matters specifically covered by the provisions of the code. Where the Code is silent about, the power of the High Court in respect of any matter arising before it. It can pass suitable orders in exercise of its inherent powers to give effect to any order pass under the Code, or to prevent the abuse of the process of any Court or to secure ends of Justice. This power can also be exercised to reconsider orders of dismissal of an appeal, or application parsed without jurisdiction or in default or appearance, where reconsideration is necessary to secure the ends of justice.'
13. In another case reported in 1977 Crl. Law Journal 1520 (Kailaeh Nath Lahiri v. Shantilal Khushaldas and Brothers) it was held that the inherent power of the High Court to set aside the order of dismissal of a revision petition for default of appearance cannot be taken away toy Section 362 of the Code. The relevant portion of the judgment in paragraph-3 is excerpted below :-
'3. The respondent resisted this application for setting aside the or-Jar of dismissal of the revision application exparte. A preliminary objection was raised by Sri S.K. Kakodkar, learned Advocate for the respondent, that this Court has no jurisdiction to set aside an order dismissing a revision application a Sri Kakodkar argues that inherent powers of the Court mentioned in Section 482 of the CrPC, cannot be used in view of the specific provisions of Section 362 which in terms bars the jurisdiction of the Court to set aside such order :-
.....
Shri Kakodkar draws my attention to the words 'or final order disposing of a case' occurring in that Section. He argues that in view of the specific bar introduced by this amended Section of the new code which corresponds to Section 369 of the old code, this Court has no power to set aside the order of dismissal in question. I am unable to agree with Sri Kakodker. What Section 362 forbids is the alteration or review of the 'final order disposing of a case' but it does not prohibit the total obliteration of such order. Sri Kakodkar wants me to conclude that if alteration or review, i.e., not possible, obliteration should impliedly be considered as impossible. This view cannot be accepted because the alteration or review pre-supposes the continuation of the initial order and the effectuation of some changes, in it, whereas the setting aside of the order means the complete abrogation of it. There is, therefore, no specific bar contained in Section 362 or in any other section of the code against the setting aside of an order of dismissal for default. It follows that the inherent powers of this Court are not taken away ass far as the setting aside of the orders of dismissal ex parte are concerned.
14. In another case reported in 1980 Crl. LJ 80 (Smt. Prema Jain v. Sudhir Kumar Jain) the Delhi High Court held that the dismissal of an application for maintenance under Section 125 of the Code for default of appearance was an order of administrative in nature rather than a judicial one and such dismissal order can be restored. In paragraphs 23, 24 and 25 of the judgment. His Lordship observed as follows :-
'23. An application under Section 125 of the New Code cannot be a police report as contemplated by Section 173 nor is it a complaint as defined by Section 2(b). The result produced by its conclusion is neither acquittal nor conviction, not oven a discharge. Moreover, a final order under Section 125, to be taken as such, must satisfy the conditions laid down by Section 354(6), i.e., it must state the points for determination, the decision thereon and reasons for the decision. In the present case no evidence whatever had been adduced and the stage of passing a final order had not as such been reached and consequently no such order was actually passed. The mare fact that the order of the Magistrate had the effect of consigning the petition for maintenance to the record room would not by itself be enough clothe it with the attributes of a final order.
24. It has been contended for the respondent that Prema Jain could have been filed a fresh application under Section 125 of the code of Criminal Procedure and it was not necessary,
therefore, to ask for the restoration of the application dismissed in default. The remedy suggested on behalf of the respondent would not, however, have served the ends of justice and this is because a petition under Section 125 is different from a complaint in one more essential aspect, accused person can be punished in the same manner as he was punishable under the first complaint on the institution of the second complaint in event of the dismissal of the first complaint and that is why racing up a proceeding already consigned to the record room may not be needed. So far as the case of maintenance is concerned, however, the Court can award the allowance from the date of the order or at the best from the date of the petition and if the previous petition be not restorable the petitioner would get no relief for the period elapsing between the date of the first application and that of the second one. As pointed out by the Supreme Court the provision under consideration is meant for the benefit of the weeker and helpless sections of the society and it must, therefore, be construed in such a manner as to permit dispensation of full justice.
25. The order in the present case was administrative in nature rather than a judicial one, and the Magistrate cannot be held to be incapable of reviewing or reversing the same. This view finds strength in the provisions following Section 125 in the same Chapter which entitled the Court to alter, to review or event to cancel its judicial orders.'
15. In another case of Janha Das v. Daitari Chandra Pattanaik reported in (1991) 4 Orissa Criminal Report-484, the Orissa High Court held that the dismissal of the criminal Revision for default was neither a judgment nor a final order and such order is administrative in nature rather than a judicial order and as such, Section 362 is not be a bar to restoration of the criminal revision. In paragraph-3 of the said judgment the Court held as follows:
'3. The learned sessions Judge while allowing restoration of the revision relied on 31 (1965) CLJ 789 Rekha Jena v. Manoranjan Jena and AIR 1957 Patna 33 Ranwatar Thakur and Ors. v. State of Bihar. In these decisions, it has been held that an order of dismissal for default is in the nature of an interlocutory order and it cannot be said to be a 'judgment' within the meaning of Section 369, Criminal procedure code (Section 362 of the now Code) and no finality is given in such an order as per the provision of the said Code. While deciding the case of Rekha Jena v. Manoranjan Jena (supra) the case of Hadibandhu Naik and Ors. v. Panchanan Sahu, 26 (1960) CLJ 416 had been referred to. In the case of Smt. Prema Jain v. Sudhir Kr. Jain. 1980 CLJ 80, it has been held that an
order dismissal for default is administrative in nature rather than a judicial one and Magistrate has power to set aside the same and restored the application. On the basis of these decisions, the impugned order seems to be free from any defect.'
16. We have given our thoughtful consideration to the ratio laid down in the above cited cases of various other High Courts and the orders dated 27.6.1997 and 18.7.1997 passed by the learned Single Judge in the present Criminal Revision Petition including the decision of Haji Sabajiuddin's case (supra). Having regard to those decisions, we are of the considered view that bar prescribed under Section 362 of the Code does not extent to the power of dismissal for non-prosecution. This ex-parte dismissal, in our firm opinion. In view of the above cited decisions, is not a 'final order disposing of a case' in as much as by disposing of a revision Petition for non-appearance of the revision Petitioner, the Court has not gone into merit of the case. Since the matter has been disposed of without addressing itself to the merit of the case, it is always open to the Court to exercise its inherent power under Section 482 of the Code to recall the order of dismissal for default of appearance in order to ensure the ends of justice.
17. While approving the ratio of the above cited cases to the effect that the order of dismissal for default of appearance is open for recalling in exercise of inherent power of the High Court under Section 482 of the Code, we, with great respect, are unable to endorse the view taken in the decision of Haji Sabajiuddin's case (supra), Prema Jain's case (supra) and Janha Das's case (supra) to the effect that the order of dismissal for default is neither a judgment nor a final order but an administrative order. We are disinclined to agree how an order passed by the Court in exercise of its judicial function could be termed as an administrative order when for some or other reasons Court has to dismiss the matter for default of appearance of the learned Counsel appearing on behalf of the Petitioner without deciding the case on merit. It is clear that when the case is dismissed for default, definitely Court passes a judicial order in exercising its judicial function. Therefore such dismissal order for default, in our view, cannot be accepted as an administrative order. Both the expressions 'administrative order' and 'judicial order' carry distinct and separate meaning. According to Dictionary meaning (Black's Law Dictionary) an 'administrative order' means - The final disposition of a matter before an administrative agency ; product of an administrative adjudication. Such order may be declaratory or it may contain an affirmative or negative command. A regulation issued by an administrative agency interpreting or applying the provisions of a statute. Administrative acts having force of law, designed to clarify
or implement a law or policy.', while 'judicial order' means - 'one which involves exercise of judicial discretion and affects final result of litigation.' By a plain reading of those definitions, one can easily arrive at the conclusion that order of dismissal for default does not fall within the purview of the administrative order when the same is passed in performing the judicial duty in dispensation of justice. As we have already opined, such order of dismissal for default is required to be recalled by exercising the inherent power of this Court only to secure the ends of justice in rendering real and substantial justice.
18. We are also of the view that by recalling such order not based on merit, the Petitioner would be afforded a reasonable' opportunity so that he may be heard without prejudicing his interest. At the same breath, it can also be said that if the dismissal order for default is recalled, the respondent would not also be adversely affected. The main theme of dispensation of justice is to do real and substantial justice-reminding the universal philosophy that justice must not only be done but must appear to have been done.
19. Consequently, we are hereby unhesitatingly approve and accept the principle of law laid down in Haji Sabajiuddin's case (supra) with a modification that order of dismissal for default of appearance is not an administrative order but a judicial order, aimed to secure ends of justice and we hold that the same is applicable in the present case.
20. For the forgoing reasons, decisions and discussions, we hereby answer the reference accordingly and the order dated 27.6.1997 is hereby recalled and the Revision Petition No. 495/96 is restored to its file.
21. Place the matter before the learned single Judge who is requested to proceed accordingly.