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Deepak Thanwardas Balwani Vs. State of Maharashtra and Another - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberReview Petn No. 204 of 1984 in Criminal Writ Petn. No. 367 of 1983
Judge
Reported in1984(1)BomCR441
ActsIndian Penal Code (IPC), 1860 - Sections 34; Code of Criminal Procedure (CrPC) , 1973 - Sections 482
AppellantDeepak Thanwardas Balwani
RespondentState of Maharashtra and Another
Excerpt:
.....- magistrate issued process and complaint registered - issuance of process challenged by way of writ - writ dismissed unheard - review filed - review application deserves to be allowed as reasonable opportunity not afforded to appellant - under section 482 high court empowered to review its judgment if such judgment is pronounced without giving an opportunity of being heard to party entitled to hearing and that party is not at fault - writ petition filed to be recalled and reheard. - section 31(4) (since repealed) :[tarun chatterjee & h.l.dattu, jj] jurisdiction of high court - respondent, a government company, chartered appellants vessel to carry rock phosphate from togo to west coast india - dispute arose between parties - under agreement, respondent had chosen mumbai as port of..........february 1984, the sheristedar of this court inadvertently mentioned in the roznama that the next date of hearing was 8th february 1984. thus he made a mistake in not mentioning in the roznama the correct date of hearing i.e. 13th february 1984. the writ petition was thus called out for hearing on 8th february 1984 when no one appeared on behalf of the petitioner. this court went through the record and dismissed the writ petition having come to a conclusion that the complaint did disclose a prima facie case for issuing process. the rule was accordingly discharged.2. feeling aggrieved by the disposal of the writ petition on 8th february 1984, in this manner, the petitioner filed the present review petition. mr. joshi on behalf of the petitioner submitted that the petitioner and his.....
Judgment:

1. The present petitioner, Deepak Thanwardas Balwani, was prosecuted by respondent No. 2, Navabai Chhangomal Vasandani, in the Court of the learned Metropolitan Magistrate, 7th Court, Dadar, Bombay. The allegations made against him were with regard to offences punishable under sections 341, 397 and 506 (Part II) r/w S. 34 of the Penal Code. The learned Magistrate issued process and the complaint was registered as Case No. 91/S of 1982. The petitioner challenged the said order of issue of process against him by filing criminal writ petition No. 367 of 1983 in this Court and prayed for quashing the said proceedings. The said writ petition was on weekly board beginning from 30th January 1984. It came up for hearing on 2nd February 1984. On that day it was mentioned by Mr. N. D. Jaywant, learned junior of Mr. M. K. Joshi, and applied for date. It appears that initially 6th February 1984 was suggested as the next date but that date was not convenient to the learned counsel appearing on behalf of respondent No. 2. Therefore, another date viz. 8th February 1984 was suggested. But since that date was also not convenient, it being in the middle of the week, the writ petition was adjourned to 13th February 1984. It seems that since 8th February 1984 was one of the dates mentioned for adjournment before the writ petition was actually adjourned to 13th February 1984, the Sheristedar of this Court inadvertently mentioned in the Roznama that the next date of hearing was 8th February 1984. Thus he made a mistake in not mentioning in the Roznama the correct date of hearing i.e. 13th February 1984. The writ petition was thus called out for hearing on 8th February 1984 when no one appeared on behalf of the petitioner. This Court went through the record and dismissed the writ petition having come to a conclusion that the complaint did disclose a prima facie case for issuing process. The rule was accordingly discharged.

2. Feeling aggrieved by the disposal of the writ petition on 8th February 1984, in this manner, the petitioner filed the present review petition. Mr. Joshi on behalf of the petitioner submitted that the petitioner and his advocates were under a bona fide belief that the matter was adjourned to 13th February 1984 and accordingly on that day they attended the Court but only to find that it was disposed of on 8th February 1984, under the circumstances mentioned hereinabove. Therefore, according to Mr. Joshi, no opportunity of being heard was given to the petitioner before deciding his case against him and as such it can be said that this Court acted in violation of the principles of natural justice and hence without jurisdiction. Therefore, the order passed by this Court on 8th February 1984 should be recalled, it being a nullity in the eye of law, further submitted Mr. Joshi. He then urged that the averments made in the review petition that there was a genuine mistake as regards the correct date of hearing are not in dispute inasmuch as respondent No. 2 did not file an affidavit in reply controverting the facts mentioned in the review petition. Mr. Gursahani, learned counsel appearing on behalf of respondent No. 2, was asked by the Court whether his client was interested in filing an affidavit in reply to controvert the facts mentioned in the review petition to which Mr. Gursahani answered in the negative. And the fact remains that no such affidavit has been filed by respondent No. 2 in this respect. Mr. Gursahani, in fairness, submitted that his learned junior had told him that the correct date of hearing was perhaps 13th February 1984, and not 8th February 1984. Thus, Mr. Gursahani did not seriously challenge that there was a genuine mistake as to the correct date of hearing being 13th February 1984. Therefore, the hearing of the review petition was commenced on the basis that the correct date of hearing of the original writ petition was 13th February 1984 and not 8th February 1984.

3. Mr. Gursahani urged that even if there was a mistake about the correct date of hearing of the writ petition, the review petition is not maintainable. It may be noted here that this review petition is purported to have been filed under the provisions of S. 482 of the Criminal P.C. 1973 corresponding to S. 561A of the Criminal P.C. 1898. Therefore, Mr. Gursahani submitted that once the High Court, in its exercise of revisional jurisdiction had pronounced the judgment the same cannot be reviewed or revised under the provisions of S. 482 of the Criminal P.C. 1973. To bring home his point Mr. Gursahani relied upon an authority of the Supreme Court in State of Orissa v. Ram Chander Agarwala, : 1979CriLJ33 in which it was held that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code which would enable the High Court to review the same or to exercise revisional jurisdiction. Their Lordship further held that the provisions of S. 561A cannot be invoked for exercise of a power which is specifically prohibited by the Code. Mr. Joshi did not dispute and in fact he cannot dispute this position in law. However, according to him the facts of the case before the Supreme Court could be distinguished inasmuch as in the said matter the Orissa High Court had reviewed its earlier judgment on the ground that there was no proper notice to the accused persons for enhancement of sentence as the one issued to them was not that clear so as to enlighten the parties and the lawyer whether the enhancement of sentence was with regard to substantive imprisonment or of the regularising the amount of fine. Their Lordships of the Supreme Court were of the view that the order of the learned Judge of the Orissa High Court was not correct because they did not find any basis for such a conclusion arrived at by the High Court. In other words, the Orissa High Court had reviewed its earlier judgment which was pronounced on merits after giving proper notice to the parties. Mr. Joshi was very candid in submitting that once the parties had enough opportunity of being heard, they cannot make a grievance about a decision arrived at by the High Court if such opportunity was not availed of by them and ask for review or revision. Therefore, according to him, the order of the Orissa High Court in review was correctly set aside by the Supreme Court because the parties in that case had ample opportunity of being heard in the matter of sentence and as such the Orissa High Court could not have reviewed its earlier order. I am in full agreement with the submissions of Mr. Joshi and am of the opinion that the facts and circumstances of our case are quite different and distinguishable from those in the case before the Supreme Court because in our case the petitioner had no notice that his writ petition would be taken up for hearing on 8th February 1984. In fact, the petitioner was told that it was fixed for hearing on 13th February 1984. Therefore, there was every reason for him and his lawyers to remain absent on 8th February 1984. In other words, his case was disposed of on 8th February 1984 without giving him an opportunity of being heard. It is thus important to note that the Supreme Court was not dealing with a case in which no opportunity of being heard was given to a party before the case was disposed of. It is no doubt true that their Lordships further dealt with the matter, apart from the merits, and held that the judgment of the High Court in appeal or revision cannot be reviewed or revised except in accordance with the provisions of the Criminal PC and that the provisions of S. 561A of the Code cannot be invoked for exercise of power which is specifically prohibited by the Court. As I have stated earlier, there is absolutely no dispute about this position in law. But when the High Court disposes of a matter without hearing a party who is entitled to a hearing it can be said that the High Court acted without jurisdiction and in violation of the principles of natural justice. When such are the facts of a particular case, as in our case, the High Court can review its earlier order in its inherent powers provided under section 482 of the Criminal P.C. 1973.

4. In this connection we may refer to a judgment of a division bench of this Court in A. H. Satranjiwala v. The State of Maharashtra : (1972)74BOMLR742 . In that case it was held that u/s. 561A of the Code or otherwise, there is no inherent power in the High Court to review or consider the previous judgment of the High Court in a criminal matter except where the previous judgment was pronounced without jurisdiction or in violation of the principles of natural justice or possibly, in a case where it was obtained by an abuse of the process of the Court which would really amount to it being without jurisdiction. In our case, since the petitioner was not afforded an opportunity of being heard to which he was entitled in law it can be well said that was entitled in law it can be well said that the judgment pronounced by this Court on 8th February 1984 was in violation of the principles of natural justice and thus without jurisdiction. Therefore, such an order or judgment can be reviewed or revised u/s. 561A of the old Criminal P.C. which corresponds to Section 482 of the new Criminal PC. We may also usefully refer to another ruling of a division bench of this Court in Bombay Cycle & Motor Agency Ltd. v. Bhagwanparsad Ramragubir Pandey : (1974)76BOMLR612 wherein it was clearly held that u/s. 561A of the Criminal PC 1898, the High Court has inherent powers to make an order that an appeal may be reheard in a proper case where a party who is entitled to be heard had not been heard without there being any fault on his part or on the parts of his counsel. That the petitioner and his Advocates did not remain present in this Court on 8th February 1984, in the instant case, was no fault on their part and the petitioner cannot be condemned, without being heard, for no fault of his. Before parting with this discussion it may also be noted that at some stage of hearing Mr. Irani, holding for Mr. Gursahani, brought to my notice another ruling of a division bench of this Court in State of Bombay v. Geoffrey Nanners & Co. : AIR1951Bom49 in which it was held that when an oral judgment is delivered by the High Court in its criminal appellate jurisdiction, the order made receives its finality when it is recorded and a writ in terms of the order is issued under the seal of the Court and it cannot thereafter be altered or reviewed. But the very next paragraph in this judgment shows that the said division bench had further held that it would, however, be open to the High Court to review or alter its judgment, given in exercise of its criminal appellate jurisdiction after it has been recorded and a writ issued in pursuance thereof, where there is an error apparent on the face of the record or an obvious mistake about the facts which, if not corrected, would lead to miscarriage of justice.

5. So far as our case is concerned, the mistake that was committed as regards the correct date of hearing has got to be rectified so as to see that justice is not miscarried. In fact, not correcting that mistake and not re-hearing the writ petition would mean denying justice to the petitioner. To allow this review petition would mean affording a reasonable opportunity of being heard to both the parties. That would be equity and fair play. Again, if the original writ petition is re-heard all afresh no prejudice will be caused to respondent No. 2. On the contrary if it is re-heard both the parties will have opportunity of marking their submissions to this Court whether their criminal proceedings taken by respondent No. 2 against the petitioner in the Court of the learned trial Magistrate should or should not be quashed. Hence, I find no substance in the submissions of Mr. Gursahani that this review petition is not maintainable.

6. In this view of the matter, I am of the opinion that in its inherent powers as provided in S. 482 of the Criminal PC 1973, the High Court can review or revise its judgment if such a judgment is pronounced without giving an opportunity of being heard to a party who is entitled to a hearing and that party is not at fault. For the mistake of the Court, a party cannot suffer.

7. In the result, I allow this review petition. The judgment and order recorded by this Court on 8th February 1984 in Criminal Writ Petition No. 367 of 1983 is recalled. The said writ petition shall be re-heard all afresh. The lower Court be accordingly informed that the writ received by it from this Court be treated as a nullity and the stay granted earlier continues. Hence it shall not proceed with Case No. 91/S of 1982 till find disposal of Criminal Writ Petition No. 367 of 1983 and further directions.

8. Petition allowed.


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