1. This is an application by the petitioners, who were original accused Nos. 1 and 5, for a review of the decision of this Court, dated the 16th May last, and for a re-trial on the ground that certain fresh evidence is now available to them. The petitioners state that they are informed by the Local Government that the power to order re-trial rests with this Court and that they have been directed to apply to this Court for ordering a re-trial.
2. We have now heard the learned Government Pleader on behalf of the Crown in support of the view that this Court can review its judgment; but he admits frankly and fairly that he is not able to support the view that this Court has any jurisdiction to review its own judgment. The learned Counsel for the petitioners also has not seriously contended that this Court has any such jurisdiction. It is quite clear from the provisions of the Code of Criminal Procedure and from the various decisions of the different High Courts, that the High Court has no power to review its own judgment. It is enough to refer to the following oases decided under the Code Of 1882: In the matter of Gibbons 14 C. 42 : 7 Ind. Dec. 29. Queen-Empress v. Durga Charan 7 A. 672 : A. W.N. (1885) 177 : 4 Ind Dec. 867; Queen-Empress v. Fox 10 B. 176 : 5 Ind. Dec. (N. S.) 502; Queen-Empress v. Mohun Abhesing (1895) Un.Cr. C 791; Queen-Empress v. Bhimappa 19 B. 732 : 10 Ind. Dec. 490. and Queen-Empress v. Ganesh Ramkrishna 23 B. 50 : 12 Ind. Dec. 33. The last two cases no doubt refer to the power of the Sessions Court to review its judgment, but the principle underlying the decisions is the same. There is no difference on this point between the Code of 1882 and the Code of 1893 now in force; and so far as I know, in practice this view has been consistently followed. I feel quite clear that we have no jurisdiction to entertain this application. On this ground, and on this ground alone, I would discharge the rule.
3. The only 'remedy open to the petitioners, in my opinion, is by way of an application to the Local Government or to the Governor-General-in-Council under Section 401 of the Code of Criminal Procedure for the suspension or remission of the sentences passed on them. It seems to me that it will be open to, the Government to make such inquiry in connection with the tatter which is now relied upon on behalf of the petitioners as new evidence and to make such further inquiry in connection with the case in the light of this new evidence, as they may think proper. We can properly express our opinion on the application under Section 401, if required to do so by the Government under sub-section (2) of that section.
4. Having regard to the gravity of the case, I desire to express my opinion that it will be proper to postpone the execution of the sentences passed on the petitioners, until the inquiry above alluded to has been finished and the final conclusion on the application of the petitioners under Section 401 of the Code of Criminal Procedure arrived at by the Government.
5. A copy of this judgment should be sent to the Government.
6. I entirely agree and have nothing to add.