Criminal Appeal u/s. of 29 Domestic Violence Act, 2005 has been dismissed in default for want of prosecution on 30-07-2019. Remedy / Solution / Option – By pass except going to High Court.
Hi Friends and Respected Seniors & Members, NAMSKAR, I am Adv. Sunil Maroti Tayade, MALKAPUR_443101 Dist.Buldana. Maharashtra. Sunil_tayade_mku@yahoo.co.in suniltayademku@gmail.com I am practicing at Civil Court Junior Division, Malkapur & District and Sessions Judge, Malkapur. Well, I want a little but important suggestion from all of you.
On 30-07-2019 District and Sessions Judge, Malkapur has passed an ORDER which is stated that –
“Appellant and counsel absent. Respdt. by Counsel present. Order passed below Exh.no.1. Appellant and her counsel absent when called. Mater is more than 5 years old. It is for hearing/order. No application on record. Hence in view of the earlier order dt. 2.4.19, the matter is dismissed in default for want of prosecution. No order as to cost. R and P be sent back to lower court. Case papers be filed. “
Nature of Disposal: DISPOSED OF OTHERWISE.
Date : 02-04-2019
Business: Appellant and counsel absent. Respdt. by counsel present. Requisition for record issued. Order passed below Exh.no.1. Appellant and her counsel absent when called. Matter is more than 5 years old. It is for hearing. No application on record. Hence keep for order.
Next Purpose :Dismissal Order
Next Hearing Date:07-05-2019
Date : 07-05-2019
Business:Appellant absent. Respdt, absent. Counsel present. P.O. is on summer vacation.
Next Purpose:Dismissal Order
Next Hearing Date:17-06-2019
Date : 17-06-2019
Business:Appellant and counsel absent. Respdt. and counsel absent. On account of sad demise of Adv.Wakhade, the Bar Association Malkapur has passed resolution Not to do the today work. Hence adjn.
Next Purpose :Dismissal Order
Next Hearing Date:30-07-2019
Before giving suggestion on it, kindly see/read the actual position of record. I was not Appellant's Advocate. On 02-04-2019 her Advocate was out of station. He has gone out of Malkapur from some months ago & she tried repeatedly to contact him, but Alas! She failed to contact him.
Well then, she came to me on 07-05-2019, but on this date Presiding Officer was on Summer Vacation and on next date 17-06-2019, on this day, Bar Association, MALKAPUR passed a resolution not to do work due to sad demise of an Advocate. And on 30-07-2019 I was ill so I could not appear in that case as well as could not contact Appellant. And Appeallant was also not presnt; she was thinking that her NEW appointed Advocate means I, will handle it. So she was relaxed & was out of MALKAPUR.
She has been deserted by her Husband from Matrimonial house since 2004, and since then she has been living at her mother’s home MALKAPUR.
Legal Position – Obstacles in my way to Restore / Recall this case.
First thing is that there is no provision in the Code of Criminal Procedure for restoration of a criminal case like
Order IX of the CPC.
Second thing is that Section 362 Cr.P.C. prohibits the court to alter or review the judgement.
Third thing is that the power of dismissal for default and the power of restoration inherent 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.
Now what is the Remedy for me on the side of Appellant to set aside the Order of DISMISSAL for default?
I want to try to convince Session Court that it has ample power to Restore / Recall it inherited in it.
It is my query that How should I convince him?
Through making an application of MJC for Restoration / Recalling this Dismissal Criminal Case,
OR is there any other way except going to High Court?
