Page No.# 1/12 GAHC010010452025 2025:GAU-AS:11812 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./59/2025 TANMOY DAS AND 3 ORS SON OF LATE TRALAKHYA RANJAN DAS, RESIDENT OF KHAGESWAR ROAD, TINSUKIA, P.O., P.S. AND DISTRICT- TINSUKIA, ASSAM, PIN- 786125 2: SRI TUHIN DAS SON OF LATE TRALAKHYA RANJAN DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 3: SRI TARUN DAS SON OF LATE TRALAKHYA RANJAN DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 4: SMTI. CHHAYA DAS DAUGHTER OF SRI TANMOY DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 78612 VERSUS BASANA BALA DAS AND 22 ORS Page No.# 2/12 WIFE OF HARALAL DAS, RESIDENT OF KHAGESWAR ROAD, TINSUKIA, P.O., P.S. AND DISTRICT- TINSUKIA, ASSAM, PIN- 786125 2:SRI SRISTI KAR DAS SON OF LATE HARALAL DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 3:SMTI CHAMPABATI DAS WIFE OF SRISTI KAR DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 4:SRI SUBRATA DAS SON OF HARALAL DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 5:SMTI MIMI DAS CHOUHDURY WIFE OF SUBRATA DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 6:SRI SOUVICK DAS SON OF SUBRATA DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 Page No.# 3/12 7:SRI DEBABRATA DAS SON OF LATE HARALAL DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 8:SMTI DOLA DAS WIFE OF DEBABRATA DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 9:MISS DEBOSMITA DAS DAUGHTER OF DEBABRATA DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 10:SMTI KHELA DAS WIFE OF LATE SANKAR DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 11:SRI SUBHRA PRATIM DAS SON OF LATE SANKAR DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 12:SMTI. PRAGYA ROY DAS WIFE OF SRI SUBHRA PRATIM DAS RESIDENT OF KHAGESWAR ROAD Page No.# 4/12 TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 13:SMTI GOURI DAS WIFE OF LATE PANKAJ KUMAR DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 14:SRI PARTHA PRATIM DAS SON OF LATE PANKAJ KUMAR DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 15:SMTI PALLABI DAS MAJUMDER WIFE OF SRI PARTHA PRATIM DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 16:MASTER PRAYAG DAS SON OF SRI PARTHA PRATIM DAS REPRESENTED THROUGH HIS NATURAL GUARDIAN I.E. HIS MOTHER NAMELY SMTI PALLABI DAS MAJUMDER RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 17:SRI BHASKAR DAS SON OF UPENDRA CHANDRA DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA Page No.# 5/12 P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 18:SMTI BINA DAS WIFE OF SRI BHASKAR DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 19:SRI BISHAL DAS SON OF SRI BHASKAR DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 20:SMTI. NANDITA DAS WIFE OF LATE DIBAKAR DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 21:SRI DIBYAN DAS SON OF LATE DIBAKAR DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 786125 22:SRI NARAYAN DAS SON OF LATE UPENDRA CHANDRA DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM Page No.# 6/12 PIN- 786125 23:SMTI RINA DAS WIFE OF SRI NARAYAN DAS RESIDENT OF KHAGESWAR ROAD TINSUKIA P.O. P.S. AND DISTRICT- TINSUKIA ASSAM PIN- 78612 Advocate for the Petitioner : MR. SAILENDRA DEKA, MS. L RONGPIPI,MR. JITENDRA DAS Advocate for the Respondent : MR. A K GUPTA (R-1 TO R-15,R-17 TO R-22), MR. R S MISHRA (R-1 TO R- 15,R-17 TO R-22) -BEFORE- HON’BLE MR. JUSTICE ANJAN MONI KALITA 01.09.2025 ORDER (ORAL) Heard Mr. S. Deka, learned counsel for the petitioners and also heard Mr. A. K. Gupta, learned counsel appearing for all the respondents. 2. This is an application under Section 528 of BNSS, 2023 praying for setting aside and quashing of the impugned order dated 10.06.2023 passed by the learned Additional Sessions Judge No. 2 (FTC), Tinsukia in Criminal Revision Case No. 14 (1)/2023 and order dated 26.09.2024 passed by the learned Additional Session Judge No. 2 (FTC), Tinsukia in Misc Criminal Case No. 05/2023 arising out of Criminal Revision Case No. 14(1)/2023. 3. The brief facts of the case, as narrated, are that the petitioners have assailed the order dated 26.09.2024, whereby the Revision Petition filed by the petitioners against the order dated 22.02.2023 passed by the learned Additional District Magistrate (for short, ‘ADM’), Tinsukia in Case no. 73/2022 has been dismissed for default on the part of the counsel for the petitioners. The petitioners have also assailed the impugned order dated 26.09.2024 passed by the learned Additional Sessions Judge No. 2 (FTC), Tinsukia in Misc Criminal Case No.05/2023, whereby, the petition submitted on behalf of the petitioners for restoration of Page No.# 7/12 the Criminal Revision Case No. 14 (1)/2023 has been rejected. 4. During the pendency of the matter before the learned ADM, Tinsukia, on 19.12.2022, the petitioners have filed a petition for adjournment along with a prayer for directing the respondents herein to furnish the copy of the petition, relevant documents and the reports called for by the learned ADM, Tinsukia. However, while passing the order dated 19.12.2022, the learned ADM, Tinsukia failed to pass any order regarding furnishing of the aforesaid documents and fix the matter again on 20.02.2023 for submission of written statement. On 20.02.2023, no order was passed by the learned ADM, Tinsukia but on 22.02.2023, the learned ADM, Tinsukia vide, it’s order dated same, made the conditional order dated 18.11.2022 absolute by restraining the petitioners from causing any annoyance to the respondents herein by the use and enjoyment of the road/ passage in dispute. 5. The petitioners being aggrieved by the aforesaid order passed by the learned ADM, Tinsukia filed a Criminal Revision Petition No. 14(1)/2023 before the learned Additional Sessions Judge No.2 (FTC), Tinsukia praying for setting aside the impugned order dated 22.02.2023 passed by the learned ADM, Tinsukia. Thereafter, the learned Additional Sessions Judge No. 2 (FTC), Tinsukia vide, order dated 17.03.2023, admitted the petition and was pleased to stay the order dated 22.02.2023 passed by the learned ADM, Tinsukia while issuing notices upon the respondents. Thereafter, the respondents appeared in the matter on 19.04.2023. On 10.06.2023, when the matter was called upon, there was no representation on behalf of the petitioners as the conducting counsel for the petitioners was suffering from illness. However, the junior counsel who was supposedly to be present in the Court, could not reach Court in time due to puncture of a tyre of his vehicle. As none appeared, the learned Addl. Sessions Judge No. 2 (FTC) Tinshukia, passed the order dated 10.06.2023, whereby he dismissed the Criminal Revision Petition for non-prosecution. Learning about the dismissal of the matter, the petitioners on the very same day filed an application for restoration of the said Criminal Revision Petition No. 14(1)/2023 on the ground as mentioned above. The said restoration application was put up on 13.06.2023 and registered as Misc Criminal Case No. 05/2023. On receipt of the notice, the respondents therein filed a written objection to the restoration application. The matter was heard on 26.06.2024, wherein, the learned Additional Sessions Judge No. 2 (FTC), Tinsukia fixed the matter for arguments on 12.07.2024. Page No.# 8/12 Ultimately, the matter was heard on 26.09.2024 and the learned Additional Sessions Judge No. 2 (FTC), Tinsukia dismissed the Misc Criminal Case No.5/2023 holding that the grounds shown by the petitioners in the petition are not found to be satisfactory. 6. Mr. S. Deka, learned counsel for the petitioners submits that though there is no specific provision under the Cr.P.C. for restoration of a Criminal case, unlike Order XI of the Civil Procedure Code; and Section 362 of the Cr.P.C. prohibits the Court to alter or review the judgment, however, he submits that in a case which is dismissed for default as the same cannot be termed a judgment as per Section 353 of Cr.P.C., the bar under Section 362 Cr.P.C. is not applicable in such cases. He submits that the learned Court below i.e. Additional Sessions Judge No. 2 (FTC), Tinsukia in his findings mentioned specifically that he was unable to review his order passed in Criminal Revision Petition. Thereby, Mr. Deka, learned counsel for the petitioner submits that the learned Court below has committed an error by treating the restoration application as a review application and his order as a judgment. Mr. Deka further submits that since the order passed is dismissal for default, that cannot be treated as a judgment, finally passed and therefore there is no question of reviewing the same. He submits that the Misc petition is simply for restoration of the impugned order as, if the same is allowed to be sustained than the rights and liabilities of the parties will be finally settled and thereby, the petitioners will be deprived of their valuable rights. 7. In view of the aforesaid submissions, Mr. Deka, learned counsel for the petitioners submits that this petition may be allowed and the impugned order passed by the learned Addl. Sessions Judge No. 2 (FTC) may be set aside and quashed and consequently to restore the Criminal Revision Petition No. 14 (1)/2023 pending before the learned Addl. Sessions Judge No. 2 (FTC), Tinsukia. 8. Mr. Deka, learned counsel for the petitioners cited the following case laws to strengthen his arguments:- (i) Madan Lal Kapoor-vs-Rajiv Thapar; reported in MANU/SC/78842007; (ii) Taj Mohammad-vs-State of Uttar Pradesh and Ors; reported in MANU/SCOR/113686/2023; (iii) Jawahar Lal @ Jawahar Lal Jalaj; reported in 2015 0 Supreme (AII) Page No.# 9/12 3489; (iv) Raj Narain-vs-State; reported in 1958 0 Supreme (AII) 188; (v) Daanish Haque -vs- Central Bureau of Investigation; reported in 2024 0 Supreme (Cal) 1256. 9. A cumulative reading of the aforesaid judicial pronouncements, it is seen that the Hon’ble Apex Court as well as High Court are of the opinion that, in principle, a criminal matter cannot be dismissed for default and it must be decided on its own merit. It may be relevant to reproduce hereinbelow paragraph Nos. 23 & 26 from the case of Jawahar Lal (Supra) as decided by the Allahabad High Court:- “23…The same view was expressed by the Karnataka High Court in Ibrahimsab-vs-Faridabi (1986) 2 Kant LJ 65. It was held that expression “final order disposing of the case” means a considered order on merits and not an order of dismissal for default and the provision contained in Section 362, does not come in the way of the Court recalling such order and restoring the revision dismissed for default. The decision in Chandran’s case (1989) 2 Ker LJ 845 (supra) did not also consider the scope of the inherent power of this Court under Section 482 of the Code and power of this Court to dismiss an appeal or any other criminal proceeding in exercise of that power or the power of restoration. Having considered those matters in detail in the light of the pronouncements of the various High Courts, I am of the considered view that this Court has all the inherent powers to make any order to prevent the abuse of the process of Court or for the ends of justice or to enforce discipline by invoking the powers under Section 482 of the Code, Section 386 of the Code notwithstanding. The provision contained in Section 386 cannot therefore have any application to the exclusion of those inherent powers. Viewed from this angle and in the light of the principle laid down in Ram Naresh Yadav’s case (1987 Cri LJ 1856) (SC). I hold that this Court has power to dismiss an appeal or any other criminal proceeding Page No.# 10/12 for default and this Court has also the power to restore such proceeding on sufficient grounds being shown for non-appearance. But the right of dismissal and power of restoration can be exercised only by this Court, and that too in exercise of the powers under Section 482 of the Code, and not by any of the Courts subordinate to this Court since those Courts have no inherent powers envisaged under Section 482 of the Code. The point formulated is answered thus:- (i)a criminal appeal shall be disposed of only after perusing the record and hearing the appellant or his pleader, if he appears and the Public Prosecutor, if he appears; (ii)a criminal appeal can be decided on merits, only after hearing the appellant or his counsel; (iii)The High Court has powers under Section 482 of the Code of Criminal Procedure to dismiss an appeal or revision or any other criminal proceeding for default or non-prosecution; (iv)The High Court has also inherent power to restore any matter dismissed for default or non-prosecution on sufficient reason being shown; (v)The power of dismissal for default and the power of restoration inhere only in the High Court and cannot be exercised by the Courts subordinate to the High Court since they do not possess the inherent powers under Section 482 of the Code”. “26..The views expressed by the various High Courts in the aforesaid decisions are in favour of the restoration of such petition, which has been dismissed in default in exercise of powers under Section 482 of the Code of criminal Procedure with a view to secure the ends of justice and I am also in respectful agreement with the views expressed by the various High Courts in the aforesaid decisions”. 10. The views expressed by the various High Courts in the aforesaid decisions are for Page No.# 11/12 restoration of such petitions which have been dismissed for default in exercise of power under Section 482 Cr.P.C. with a view to secure ends of justice. 11. In view of the aforesaid judicial pronouncements and the Principles laid down by the various High Courts including the Hon’ble Apex Court, Mr. Deka, learned counsel for the petitioners submits that this Court has enough power under Section 482 Cr.P.C. to pass an order to restore the petition of the petitioners for proper adjudication, more so, the case being a criminal matter. 12. Per contra, Mr. A. K. Gupta, learned counsel for the respondents submits that the applicable statute herein i.e. the Cr.P.C. vide, section 362 completely bars such restoration. He submits that the Section prohibits any judgment or final order of disposing a case to be altered or reviewed except to correct a clerical or arithmetic error. He submits that since in this case, there is no correction of clerical or arithmetic error and the final order that has already been passed by the learned Addl. Sessions Judge No. 2, Tinsukia, it is not permissible for the Trial Court to review it’s final order or judgment, therefore, he submits that this petition may not be entertained by this Court. He further submits that it is apparent from the application filed for restoration of the petition before the learned Additional Sessions Judge No. 2, there was no convincing cause shown as to why the counsel for the petitioner could not attend the Court on the particular date when the matter was taken up. Therefore, he submits that the learned Additional Sessions Judge No.2 has, in fact, correctly dismissed the case for non-prosecution and thereafter, dismissed the application for restoration. 13. On perusal of the order dated 10.06.2023 as well as of 26.09.2024, it is seen that the learned Additional Sessions Judge No. 2 dismissed the Application for restoration on the following grounds; firstly, the application that was filed for restoration was not signed by the petitioner and without any affidavit thereof, secondly, the grounds shown by the petitioners in the application are not found to be satisfactory, and thirdly, he did not find any reason to review his own order. As far as the first ground is concerned, this Court respectfully disagrees with the ground cited by the aforesaid Court due to the fact that Gauhati High Court Rules allow a petition for restoration to be filed by the counsel concerned without having petitione’r(s) signature(s) on such applications. As far as the second ground is concerned, the petition for restoration was filed immediately thereafter and the reason shown was that the Page No.# 12/12 conducting counsel was not well and the Junior counsel assisting him in the case could not be present because of the punctured tyre of his vehicle. The application was filed along with a verification which mentioned the date as 10.06.2023 i.e. the very same day when the order of dismissal was passed by the aforesaid Court. Though, the date of filing of the application is disputed by the learned counsel for the respondents, this Court does not find any relevancy in that aspect of the matter as the application for restoration was, in fact, filed without any delay. As far as the third ground is concerned, the petition for restoration of a dismissed petition cannot be termed as a petition for review of an order. This Court has gone through the judicial pronouncements and is of the considered view that the power of restoration is with the High Court and this power can be exercised by this Court, in cases wherein, the ends of justice would be met by exercising such power. This Court is also of the view that the law laid down in the case of Jawahar Lal (supra), the restoration of a petition which has been dismissed for default, can be done by this Court by exercising the power under Section 482 Cr.P.C. for ends of justice. 14. Taking the facts in its entirety, as well as the judicial pronouncements cited in the instant case, this Court is of the opinion that the prayer for restoration of Criminal Revision Petition no. 14(1)/2023 may be allowed by setting aside the impugned order dated 10.06.2023 and 26.09.2024 respectively passed by the learned Addl. Sessions Judge No. 2, Tinsukia in Crl. Rev. 14 (1)/2023 and Misc Criminal Case No. 05/23. Accordingly, this Court directs restoration of Crl. Rev. 14 (1)/2023 which was dismissed by the learned Addl. Sessions Judge No. 2, (FTC), Tinsukia vide the impugned orders. 15. With the aforesaid directions, this instant petition is disposed of as allowed. JUDGE Comparing Assistant