Skip to content


Bombay Cycle and Motor Agency Ltd. Vs. Bhagwanprasad Ramragubir Pandey - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Application No. 982 of 1972
Judge
Reported in(1974)76BOMLR612
AppellantBombay Cycle and Motor Agency Ltd.
RespondentBhagwanprasad Ramragubir Pandey
DispositionAppeal allowed
Excerpt:
criminal procedure code (act v of 1898), sections 561a, 516a, 517, 369, 417, 430--high court, whether possesses power under section 561a, to order rehearing afresh of appeals--under what circumstances high court can pass such order--rehearing of appeal] whether amounts to review of or altering judgment--bombay prohibition act (bom. xxv of 1949), sees, 99, 98, 100--whether obligatory on magistrate to issue notice to and hear party who claim interest in property prior to its confiscation under section 99 of bom. act xxv of 1949.;under section 561a of the criminal procedure code, 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 has not been heard without there being any fault on his part or on.....malvankar, j.1. this is an application by bombay cycle & motor agency ltd., under section 561a of the criminal procedure code, for setting aside the order regarding the disposal of property passed in criminal appeal no. 499 of 1970 and criminal revision application no. 320 of 1970, by this court and for restoration of possession of the property to 'the applicant. it arises this way:2. the applicant is a company registered under the indian companies act, 1913 carrying on business inter alia of hire purchase of vehicles. the applicant alleged that they were the owners of a vehicle viz. 'dodge model b6 d300-133' petrol chassis, with four years of the value of rs. 24,219.10, supplied to them by m/s. premier automobiles ltd., bombay, under sales invoice dated may 2, 1968. under a hire purchase.....
Judgment:

Malvankar, J.

1. This is an application by Bombay Cycle & Motor Agency Ltd., under Section 561A of the Criminal Procedure Code, for setting aside the order regarding the disposal of property passed in Criminal Appeal No. 499 of 1970 and Criminal Revision Application No. 320 of 1970, by this Court and for restoration of possession of the property to 'the applicant. It arises this way:

2. The applicant is a company registered under the Indian Companies Act, 1913 carrying on business inter alia of hire purchase of vehicles. The applicant alleged that they were the owners of a vehicle viz. 'Dodge Model B6 D300-133' petrol chassis, with four years of the value of Rs. 24,219.10, supplied to them by M/s. Premier Automobiles Ltd., Bombay, under Sales Invoice dated May 2, 1968. Under a hire purchase agreement entered into by respondent No. 1, the vehicle was put in his possession. The said agreement dated May 13, 1968 provided that in the event of respondent No. 1 paying the initial hire charges as well as monthly hire charges of Rs. 1,085 per month for a period of eighteen months from July 13, 1968 to December 13, 1969 and other amounts under the said agreement aggregating to Us. 28,330 he shall have an option to purchase the said vehicle on further payment of Rs. 10 as provided under the said agreement. The agreement also provided that the applicant shall remain the owner of the vehicle and respondent No. 1 shall remain in possession as a bailee of the applicant and shall not have any proprietary rights or interest in the said vehicle, unless he exercised the option of purchasing the vehicle by payment of the whole amount due under the said agreement and the petitioners made over to him all their rights, title and interest in the vehicle. According to the applicant, it was entitled to terminate the agreement by notice if respondent No. 1 failed to pay the instalments on the dates they became due or committed breach of the agreement. The Road Transport Officer, Bombay also issued the registration certificate in respect of the said vehicle (registration No. MBC 9203) showing the applicant as the Hire Purchase Company. The applicant alleged that the agreement was entered into between it and respondent No. 1 on the latter's representation made to the applicant that he was carrying on business having an income of Rs. 700 per month, that he was the owner of some immovable property worth about Rs. 2,00,000 and that he wanted to use the said vehicle for private use. Relying upon this representation, the applicant entered into the aforesaid agreement with him. Accordingly, in pursuance of the agreement, the vehicle was put in possession of respondent No. 1, who thereafter fitted on it a body at a cost of about Rs. 8,000. Thereafter respondent No. 1 paid initial hire charges and five instalments from July 1968 to November 1968 and neglected to pay the remaining instalments of hire charges with interest thereon amounting to Rs. 14,105. The applicant, therefore, terminated the hire purchase agreement on April 3/4, 1969 and became entitled to the possession of it in accordance with the terms of the agreement.

3. In February 1969, the applicant came to know that the Police Authorities of the Anti-corruption & Prohibition Intelligence Bureau, Thana, had seized the said vehicle from respondent No. 1's possession on the allegation that it was used by him for committing offence punishable under the Bombay Prohibition Act, 1949. In April 1969, the applicant also came to know that the Police had filed a criminal case being Criminal Case No. 289 of 1969 in the Court of Judicial Magistrate, First Class, Panvel against respondent No. 1 and also respondent No. 2 for offences punishable under the Bombay Prohibition Act, 1949. On May 8, 1969, therefore, the applicant filed an application under Section 516A of the Criminal Procedure Code, in the Court of Judicial Magistrate, First Class, Panvel for possession of the vehicle. However, the learned Magistrate passed an order dated June 12, 1969 rejecting the application and directed that the said vehicle should be brought from Panvel to Alibag where it should remain in the Police custody pending the disposal of the criminal case. The vehicle was brought from Panvel to Alibag at the cost of the applicant in accordance with the order passed by the learned Magistrate. At the time of hearing of the application, the applicant alleged that respondent No. 1 did not put forward his claim in respect of the vehicle. The trial proceeded and ultimately on November 21, 1969 both the respondents were found guilty of the offence punishable under Section 90 read with Section 28 of the Bombay Prohibition Act and were convicted and sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 500 or in default to undergo further rigorous imprisonment for one and a half months. Both of them were also convicted under Section 66(7)(6) of the Bombay Prohibition Act and were sentenced to suffer rigorous imprisonment for six months each and to pay a fine of Rs. 1,000 or in default to suffer further rigorous imprisonment for one and a half months each directing substantive sentences to run concurrently. As regards the motor vehicle, the learned Magistrate passed an order confiscating the same to the Government and directing the P.S.I. Panvel to dispose of the same by public auction and credit the sale-proceeds to the Government. Both the respondents then went in appeal No. 105 of 1969 to the Sessions Court against the order passed by the learned Magistrate and the learned Sessions Judge passed an order on January 17, 1970 acquitting respondent No. 1 and confirming the conviction of respondent No. 2. The learned Sessions Judge also confirmed the order of confiscation passed by the learned Magistrate disposing of the motor vehicle by confiscating the same to the Government, Thereafter the State filed Criminal Appeal No. 499 of 1970 in this Court against the order of acquittal passed by the learned Sessions Judge on January 17, 1970 and respondent No. 1 filed Criminal Revision Application No. 320 of 1970. This Court on August 2, 1971, set aside the order of acquittal and convicted respondent No. 1. It also confirmed the order of disposal of the motor vehicle by confiscating the same to the Government.

4. The applicant alleged that it bona fide believed that the vehicle was lying in police custody and would continue to remain in the police custody till the criminal proceedings were finally disposed of. The applicant was not aware of any of the orders passed by the trial Court or the first appellate Court or by this Court regarding the disposal of the motor vehicle. In October 1972, the applicant came to know for the first time that this Court had finally decided the case against the respondents and had passed the order regarding the disposal of the vehicle confiscating the same to the Government. The applicant thereafter made an application on October 30, 1972 under Section 517 of the Criminal Procedure Code to the Judicial Magistrate, First Class, Panvel for obtaining possession of the vehicle from police custody, inasmuch as the Criminal Case No. 289 of 1969 was finally disposed of. It was at this time according to the applicant that it came to know for the first time that the motor vehicle was confiscated to the State because the learned Magistrate rejected the application on the ground that the order regarding the disposal of the property passed by him being finally confirmed by the High Court, lie had no jurisdiction to pass any orders regarding the motor vehicle. The applicant, therefore, contended that it being not a party to the criminal proceeding, the confiscation of the motor vehicle not being in accordance with the provisions of Sections 98 and 99 of the Bombay Prohibition Act, 1949, it was not binding on it, inasmuch as, the order was passed without hearing it and behind its back. It also alleged that respondent No. 1 had used the vehicle for committing the offences under the Bombay Prohibition Act, 1949 without its knowledge. The applicant further alleged that the vehicle was put in possession of respondent No. 1 under hire purchase agreement for bona fide and legitimate use of it for private business purposes. In these circumstances, the applicant eon-tends that grave hardship and loss would be occasioned to it in case the vehicle is allowed to be confiscated under the orders of this Court. It, therefore, prays that, in exercise of the inherent powers of this Court under Section 561A of the Criminal Procedure Code, the order regarding the disposal of the vehicle passed by this Court confirming the order of the lower Courts should be set aside and the vehicle should be ordered to be delivered to it.

5. The application is resisted by the State only. Respondents Nos. 1 and 2 have remained absent though duly served.

6. It is common ground that the vehicle in dispute was put in possession of respondent No. 1 under the hire purchase agreement dated May 13, 1968 and, in accordance with the terms of the agreement, the applicant was to continue to be the owner until the whole of the amount of hire purchase money was paid by respondent No. 1. In case there was a default to pay any of the instalments, the agreement was liable to be terminated and in fact respondent No. 1 paid only few instalments and did not pay the balance. The result was that the applicant terminated the agreement by a notice dated April 3/4, 1969 and at once became entitled to the possession. Similarly, it is also not in dispute that while the criminal ease was pending before the Judicial Magistrate, First Class, Panvel, an application was made by the present applicant for the return of the vehicle mainly on the ground that if it is not returned to the applicant it would not be maintained properly and it would deteriorate, the types would be worn out, colour would become faint and the engine would get jammed with the result the vehicle would be reduced to scrap. The learned Magistrate issued notice of this application to the respondent and on hearing the parties on both the sides rejected the application observing thus:

As far as this inquiry is concerned the person from whose possession the vehicle was attached will be entitled to his possession pending the trial. He had at least the title of it. In this case prima facie I find that the accused is entitled for possession. But the learned Advocate for the accused stated that he is not in a position to state whether the accused wants the vehicle immediately pending the trial. Naturally the return of vehicle to the accused does not arise.

Shri Kale, the learned Advocate for the applicant invited my attention to the fact that the condition would deteriorate on account of its being kept in open ground; there is some force in this argument. Police Inspector Patki in his report dated 12th May 1969 has suggested that the vehicle should be sent to Alibag Police Station Headquarters for proper maintenance and custody. However, I find that there is a difficulty of incurring expenses over transporting this vehicle to Alibag. The applicant is interested in maintenance of the vehicle and, therefore, the applicant should bear the expenses for transporting the vehicle. Rs. 40/- approximately would be the cost for transporting and this should be deposited by the Company for transporting the vehicle in the Court.

Accordingly, the applicant deposited the amount of Rs. 40 in the Court and at his expenses the vehicle was taken from Panvel to Alibag where it is lying in police custody even today. Further it is common ground that after this application was rejected, at the time of passing the final order regarding the disposal of the property under Section 517 of the Criminal Procedure Code read with b. 99 of the Bombay Prohibition Act, 1949, no notice was issued to the Present applicant, much less, it was heard by the learned Magistrate. Thus, the applicant not being a party to the proceedings in the trial Court, it could not be a party to the appeal in the Sessions Court nor to the appeal in this Court. Obviously, therefore, the result was that the order for confiscation of the vehicle under Section 99 of the Bombay Prohibition Act, 1949 came to be passed without the applicant who claimed to be the owner being heard by any Court, It is in these circumstances that the applicant has filed the present application under Section 561A of the Criminal Procedure Code, praying for setting aside the order regarding the disposal of vehicle and for restoration of possession of the same.

7. Now on the arguments advanced before us by the learned Counsel on both the sides the first question that arises for consideration is, whether the present application for setting aside the order of disposal of property passed by this Court in Criminal Appeal No. 499 of 1970 and Criminal Revision Application No. 320 of 1970 is maintainable under Section 561A of the Criminal Procedure Code. The learned Counsel Mr. Vyas appearing on behalf of the applicant has contended that all that he has prayed for in this application is that the applicant should have been given a hearing in accordance with the provisions of Section 99 of the Bombay Prohibition Act, 1949, (hereinafter called the Act) read with Section 517 of the Criminal Procedure Code (hereinafter called the Code) before the learned Magistrate passed the order confiscating the vehicle under Section 99 of the Act read with Section 517 of the Code, which order was confirmed by the Sessions Court in Criminal Appeal No. 106 of 1969 and by this Court in Criminal Appeal No. 499 of 1970 and Criminal Revision Application No. 320 of 1970. The preponderance of authority, so the learned Counsel contends, is that the High Court has inherent power to set aside an order passed by it in Criminal Appeal or in Criminal Revision Application and direct rehearing of the case if it finds that such an order is necessary to give effect to any order under the Code or to prevent the abuse of the process of a Court or otherwise to secure the ends of justice. In the instant case, according to the learned Counsel, the order confiscating the vehicle having been passed by the Courts without hearing the applicant, such an order amounts to abuse of process or otherwise it defeats the ends of justice. On the other hand, the learned Assistant Government Pleader appearing on behalf of the State, has argued that the applicant not being diligent in approaching the Court for safeguarding his rights regarding the vehicle in dispute, he is not entitled to the benefit of the provisions of Section 561A of the Code. The question, therefore, that falls for our determination is, whether the present application is maintainable under Section 561A of the Code.

8. It is needless to say that where a Criminal Appeal has been disposed of on merits by the High Court having jurisdiction to do so, the judgment of the High Court becomes final under Section 430 of the Code and, therefore, it is not liable to be reviewed or interfered with under Section 561A of the Code because under Section 561A of the Code, there is no inherent power in the High Court to review or reconsider, alter or interfere with its judgment delivered in a criminal matter. However, there are certain exceptions to this rule recognized by the decisions of various Courts and also of this Court and one of the exceptions is that in a proper ease if the High Court finds that a party Was entitled to be heard before an order affecting his interest was passed and such a party is not heard for no fault of his, the High Court in such a case has inherent power to set aside the order under Section 561A of the Code and give the party a proper hearing. In this connection the learned Counsel Mr. Vyas has relied upon several authorities out of which we may refer to a few.

9. The first of such authorities is a Full Bench decision of Travancore-Cochin, State v. Kunjan Pillai A.I.R [1952] T C 310 In that case, the petition was filed by the State under Section 470 of the Travancore Code to modify the direction in the judgment, in Referred Trial No. 20 of 1123 and Criminal Appeal No. 136 of 1123 on the file of the erstwhile Travancore High Court that the accused be entrusted to the custody of his relatives. The judgment in that case was by a Bench of that Court consisting of Sankarsasubbier and Habeeb Mohammed, JJ. The accused was convicted by the Sessions Court of Parur of offences punishable under Sections 301, 326 and 324 of the Indian Penal Code for murdering his wife's brother and for causing grievous hurt to his wife and simple hurt to another brother of his wife, and was sentenced to rigorous imprisonment for life for the offence under Section 301, rigorous imprisonment for one year for the offence under Section 326 and rigorous imprisonment for three months for the offence under Section 324, the sentence being directed to run concurrently. The High Court, while upholding the finding of the Sessions Judge that the accused committed the acts attributed to him, accepted the defence plea of insanity and set aside the conviction and sentence inflicted by the Sessions Judge and passed an order regarding the entrustment of custody of the accused to his relatives. Accordingly two relatives of the accused executed a bond undertaking to produce him whenever called upon to do so by Government and he was entrusted to their care. A report to that effect was also sent to Government. When the petition came before a Bench of that High Court for hearing, a preliminary objection was raised on behalf of the accused that the Court had no jurisdiction to alter or review its judgment in a criminal case. The question being an important one, the learned Judges referred the petition to a Pull Bench. The High Court held that Section 369 of the Code applies to the High Court also. Section 561A did not confer any new power on the High Court. It only reserves the power which the High Court possessed even before the section was enacted. The word 'save as otherwise provided by this Code' in Section 369 cannot have reference to Section 561A. These words refer to the express provisions of the Code which empowers the Court to alter or review its judgment in certain specified cases. The High Court has no power to review or alter its judgment in a criminal case except in the case mentioned in Section 369 or where the Court has acted without jurisdiction or where it has decided the case without giving an opportunity to a party of being heard, and Section 561A does not confer on the High Court any such power. In the case of absence of jurisdiction the judgment can be treated as one not valid in law and the passing of a fresh judgment cannot in strict sense be regarded as altering or reviewing a prior judgment. With regard to cases in which the parties were not given an opportunity for being heard it may be taken to be an implied condition of such judgment or order that it should be open to reconsideration at the instance of the party prejudicially affected. The power of the Court to reconsider the matter is implied in the very nature of an ex parte decision. Applying these principles, therefore, the High Court came to the conclusion that the direction in the judgment of the High Court allowing accused to be entrusted to the custody of his relatives being made on the basis of the interpretation of the proviso to Section 384, Travancore Code of Criminal Procedure and Rule 7 of the Rules passed under the Travancore Lunacy Act, even if the direction in the judgment is not strictly in accordance with law, this is not a case in which the Court has acted without jurisdiction or where there was an abuse of the process of Court or where any grave injustice was done to any party. Though, therefore, it was not a case where the High Court had decided earlier case without giving a hearing to the party, still while laying down the scope of the application of Section 561A of the Code, the Travancore-Cochin High Court was of the opinion that the High Court has power under Section 561A of the Code to set aside its own decision where it finds that the case was decided without giving an opportunity to a party of being heard. In the opinion of that High Court in such cases in which the parties are not given an opportunity of being heard, it can be taken to be an implied condition of such judgment or order that it should be open to reconsider at the instance of the party prejudicially affected, because the power of the Court to reconsider the matter is implied in the very nature of an ex parte decision.

10. The next decision relied upon by the learned Counsel is- the Full Bench decision of the Andhra Pradesh High Court reported in Public Prosecutor v. Devireddi A.I.R [1962] A.P. 479. In that case, the accused who was tried by the Sessions Judge on a charge under Section 302, Penal Code, was convicted under Section 326, Penal Code. The accused thereupon preferred an appeal to the High Court. As against the order of implied acquittal on the charge of murder there was no appeal by the State under Section 417, Criminal Procedure Code. The single Judge before whom the appeal came later on for hearing suo motu issued a notice under Section 439, Criminal Procedure Code, to the accused to show cause why the sentence should not be enhanced. Both the appeals and revision were heard together and the single Judge altered the conviction from one under Section 326 to one under Section 302, Penal Code. In a petition under Section 561A, Criminal Procedure Code, to declare that the judgment of the single Judge was without jurisdiction, void and of no legal effect and to quash the same, the High Court held that inasmuch as the appeal and the revision were properly posted before the single Judge and he had valid seizing of the case, there was no lack of inherent jurisdiction in disposing of those cases and so, the judgment was not a nullity. What the Judge did was that he misconstrued the terms of Section 423(1)(b), Criminal Procedure Code, and exercised the jurisdiction which was legally vested in him in an erroneous or illegal manner by altering the finding under Section 326, Penal Code into one under Section 302, Penal Code. It had consequently resulted in an erroneous decision being reached by him. However, while referring to the scope of the application of Section 561A of the Code, the High Court has observed in para. 31 of the judgment, that though there is no such inherent power in the High Court under Section 561A to alter or review its own judgment once it has been pronounced, in cases where the judgment is passed without jurisdiction or in default of appearance i.e. without affording an opportunity to the accused to appear, the High Court has such inherent power under Section 561A of the Code.

11. The Allahabad High Court has expressed the same view in Chandrika v. Rex : AIR1949All176 In that case an application was made for rehearing of an appeal which was decided and dismissed in the following circumstances. On an, application being made, a date was fixed for the hearing of the appeal. That date happened to be July 5, 1948. By a mistake of the office, however, the ease was listed for hearing earlier and was heard and disposed of on June 25, 1948, ten days before the date fixed for its hearing. The learned Counsel for the appellant, under the belief that the ease could not be taken up before July 5, 1948, was not at Allahabad and, therefore, no appearance was made on behalf of the appellant when the ease was heard. The appellant was, thus, deprived of an opportunity of being heard before the case was decided against him. The High Court therefore held (p. 176) :.There cannot be the least doubt that these facts constitute a sufficient cause for setting aside the proceedings, starting with the hearing of the appeal and terminating with judgment, inasmuch as by a mistake on the part of some clerks of this Court great injustice has been done to the appellant, as he was deprived of an opportunity of being heard. The hearing of the appeal, under the circumstances indicated above, amounted to an abuse of the process of the Court, although it was not deliberate and only inadvertent.

In such a case, therefore, the High Court has inherent power to set aside the proceeding starting with the hearing of the appeal and terminating with the judgment. Similar view has been taken by the Calcutta High Court in Rajjab Ali v. Emperor I.L.R (1918) 46 Cal. 60. In that case a Division Bench of that High Court has observed thus (p. 63) ;.The result of the decisions of this Court subsequent to the Full Bench case seems to be this: that where a case is disposed of merely for default of appearance or where an order is passed to the prejudice of an accused person and by mistake or inadvertence no opportunity has been given to him to be heard in his defence such an order is not one to which the ruling in the Full Bench case applies.

The Full Bench case referred to in that case is reported in In the matter of Gibbons I.L.R (1886) 14 Cal. 42. In that case the Calcutta High Court held that a High Court had no power to review its orders in criminal eases. The facts in Rajjab Ali's case were little different but nevertheless the rule laid down in that case is as quoted above.

12. The Madras High Court also is of the same view as reported in Soma Naidu, In re I.L.R (1923) 47 Mad. 428. In that case it was held:

An order to the prejudice of an accused without affording him an opportunity of being heard as, for instance, where by mistake a case was posted on a day anterior to that fixed in the notice to the accused and the sentence was enhanced in his absence, is null and void ab initio, as being one passed without jurisdiction and that the proper course in such a case is to proceed with the matter afresh after proper notice to the accused.

One may not agree with the reasons given by the Madras High Court in the aforesaid decision, because it is difficult to accept the view that a judgment delivered in a case which is heard by mistake on a day anterior to the one fixed for hearing is null and void or without jurisdiction. The fact, however, remains that according to the Madras High Court, the proper course in such a case is to hear the matter afresh. In In re Anthony Doss (1906] Cri. L.J. 224 the Madras High Court has held that though Section 561A preserves such inherent powers of the High Court as were already possessed by it, and the High Court in the exercise of such powers has no right to set aside its own judgment on the ground that it is erroneous in law or in fact, there are no doubt well recognised exceptions to the above principle, such as cases, where the earlier decision was passed without jurisdiction or in default of appearance without an adjudication on merits. In that case the Criminal Revision which was sought to be restored, was an old one, was on the fair list for a number of days and, in fact, the counsel for the petitioners took several adjournments for being heard. The petitioner and his counsel were found absent on the date of hearing and the case was adjourned for the next day. But as the petitioner and his counsel were found to be absent even on the next day, the petition was dismissed by the High Court on merits after perusing the records and hearing the Public Prosecutor. It was, therefore, held that no case had been made out for restoration and rehearing of the petition, nevertheless the learned Judge has observed in para. 4 of the judgment that there are well recognised exceptions to the above principle such as cases where the earlier decision was passed without jurisdiction or in default of appearance without an adjudication on the merits. The Madras High Court, therefore, also has accepted the principle that in a proper case the High Court has power to set aside its own judgment and grant rehearing to the aggrieved party under Section 561A of the Code.

13. The Lahore High Court also has taken the same view in Muhammad Sadiq v. Emperor A.I.R [1925 ). Lah. 355 and has held that where an appeal has been dismissed without the appellant or his pleader being given a reasonable opportunity of being heard in support of the same, the order dismissing the appeal must be held to have been passed without jurisdiction and the Court has inherent power to make an order that the appeal should be reheard after giving the appellant or his counsel a reasonable opportunity of being heard in support of the same. The same High Court in Raju v. Emperor A.I.R [1928] Lah. 462 has laid down that though the High Court has no inherent power to alter or review its own judgment once it has been pronounced or signed except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on merits, it in the exercise of its inherent powers can make an order that the appeal be reheard.

14. Lastly, this Court also in A.H. Satranjiwala v. The State (1970) 74 Bom. L.R. 742 has held that, under Section 561A of the Code or otherwise, there is no inherent power in the High Court to review or reconsider a 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 its being without jurisdiction. In other words, this Court has taken the view that where principle of natural justice is violated and the judgment is delivered without hearing a party who has a right to be heard, such a judgment can be set aside and the High Court has inherent power to allow rehearing of the case afresh. In that case the appeal for rehearing of which an application was made under Section 561A of the Code, was regularly placed on the Board for hearing. When the appeal reached hearing, neither the petitioner nor his advocate was present, and the learned Judge proceeded to hear the appeal on merits in the absence of the petitioner who was the respondent in that appeal, and his advocate. In the said appeal, the order of acquittal passed by the learned Presidency Magistrate was reversed and the petitioner was convicted of the offence with which he was charged. The petitioner, therefore, presented the petition under Section 56.1A of the Code praying that the appeal should be restored and reheard in the interest of justice. This Court found on merits that in the circumstances of the case the petitioner was not entitled to be reheard. However, the principle that in a proper case an appeal can be reheard particularly where the judgment pronounced is without jurisdiction or is delivered in violation of the principles of natural justice or the judgment is obtained by an abuse of the process of the Court was accepted by this Court.

15. Considering, therefore, the authorities of the various; High Courts we are of the view that under Section 561A of the code, a High Court has inherent powers to make an order that the appeal be reheard in a proper case where a party who is entitled to be heard is not heard without there being any fault on his part or on the part of his counsel.

16. Apart from the authorities, a perusal of the relevant sections on this point viz. Sections 369, 430 and 561A would make it clear that there is nothing in these sections to prevent the High. Court from exercising its inherent powers to grant a fresh rehearing in a proper case. Section 369 does not in our opinion apply to a judgment delivered by the High Court on its Appellate Side. The provisions of Section 369 fall in Chapter XXVI of the Code which speaks 'of the judgment'. A reference to Sections 366, 367, 368 and 370 and 373 will show that this chapter speaks about the judgment delivered by the trial Courts. It is no doubt true that Section 369 also says, '(in the case of a High Court by the Letters Patent or other instrument constituting such High Court)''. But this clause only refers to the original jurisdiction of the High Court and not to its appellate jurisdiction. We may mention here that Clause 26 of the Letters Patent of the Calcutta, Bombay and Madras High Court empowers the High Court in its original criminal jurisdiction to review its judgment in certain circumstances. In our opinion, therefore, Section 369 does not come in the way of the exercise of the inherent powers of the High Court to order a fresh rehearing of an appeal in a proper case. Moreover, the clause 'save as otherwise provided by this Code' used in the beginning of Section 369 also saves the inherent powers of the High Court which are preserved by Section 561A of the Code. Coming then to Section 430 it says that judgments and orders passed by an appellate Court upon appeal shall be final, except in the cases provided for in Section 417 and Chapter XXXII. This provision applies to the High Court on its Appellate Side. It makes judgments and orders passed by the appellate Court upon appeal final. But the use of the word 'final' does not necessarily mean that in no case a High Court has any inherent power to order rehearing afresh. In our opinion, all that this section does in making such judgments and orders final is to declare that there shall be no further appeal. It is true that the provisions contained in Section 430 are subject to Section 417 and Chapter XXXII of the Code and they are not made subject to the provisions of Section 561A. But, in our opinion, it was unnecessary to make the provisions contained in Section 430 subject to the provisions of Section 561A, because Section 561A does not confer any additional powers on a High Court, it only preserves whatever inherent powers a High Court has. We, therefore, do not think that even Section 430 of the Code would prevent a High Court from passing an order of rehearing afresh of an appeal in a proper case. As regards Section 561A it says that nothing in the Code (including the provisions of Sections 369 and 430) shall be deemed to limit or affect the inherent power 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. Surely, therefore, if in a particular ease, High Court finds that a judgment is obtained by abuse of process or it is without jurisdiction or it is delivered without hearing the party who is entitled to be heard without the party or his counsel being at fault and, therefore, it is necessary in the interest of justice to set aside the judgment and order and grant rehearing afresh of the appeal, then certainly the High Court has such power under Section 561A of the Code.

17. The learned Assistant Government Pleader Mr. Gambhirwala has, however, argued that in the instant case the applicant is guilty of want of diligence and, therefore, he is not entitled to the benefit of the exercise of the inherent powers of this Court preserved under Section 561A of the Code. In support of this argument he has drawn our attention to the fact that though the applicant was fully aware that its vehicle was seized by the Police in a criminal case under the Act and had also applied for restoring the possession of the vehicle in May 1969, not only did it not approach the trial Court to prevent the confiscation when the trial Court delivered its judgment ordering confiscation of the vehicle on November 21, 1969, but even when the Sessions Judge confirmed the order of confiscation of the vehicle in Criminal Appeal No, 106 of 1969 on January 17, 1970, and this Court confirmed the order of the Sessions Judge on August 2, 1971 in Criminal Appeal No. 499 of 1970 of this Court, it also took no steps to prevent the confiscation of the vehicle. The reply of the learned Counsel Mr. Vyas appearing for the applicant is that it is no doubt true that the applicant was fully aware of its vehicle being seized by the Police in connection with an offence under the Act, the applicant bona fide believed that after the criminal case is finally disposed of the vehicle would be returned to the applicant. When the criminal case was pending for hearing the applicant did apply for return of the vehicle so that it would be properly maintained. But when it found that the trial Court had taken suitable steps to maintain the vehicle at the cost of the applicant itself, it did not think it necessary to pursue the relief of the return of the vehicle further because according to the learned Counsel all that the applicant was anxious about was to maintain and preserve the vehicle instead of allowing it to be kept in open to rust and worn out. After the trial Court took these steps to preserve the vehicle in good condition the learned Counsel says that the applicant bona fide believed that it would be returned to it after the case was finally disposed of. Unfortunately, however, the applicant did not come to know when the criminal case was disposed of in the trial Court and whether or not the appeals were filed and they were also heard and disposed of by the Sessions Court, Alibag and this Court, These facts are not contested by respondent No. 3 before us. It is, therefore, difficult to hold in view of these facts that the applicant was guilty of want of diligence as contended by the learned Assistant Government Pleader.

18. Another argument advanced by the learned Assistant Government Pleader is that rehearing of an appeal, even in such circumstances, assuming that the applicant, was entitled to be heard before an order confiscating his1 vehicle was passed by the Court, amounts to granting a review or altering the judgment. We cannot agree. In our opinion, when a party applies for alteration of a judgment, the party prays for inducing some changes in the judgment. But when a party makes an application under Section 561A and prays that his appeal should be reheard because he has a right to be heard and he was not heard, all that he wants is to set aside the whole of the proceeding of the appeal including the judgment. In other words, he prays that the judgment delivered without hearing him should not be treated as a judgment at all because he not being heard it could not be called a judgment which presupposes that the Judge delivering the judgment has heard the parties on both the sides. Surely, when a judgment is reviewed or altered, the judgment itself is reconsidered but when a party prays for rehearing on the ground that the party is not heard, the party prays for treating the judgment as no judgment at all. In our opinion, therefore, an application for setting aside the judgment and for rehearing afresh of the appeal cannot be considered to be an application either for the review of the judgment or for alteration thereof. In our opinion, therefore, there is no force in this argument.

19. The question then that remains to be considered is whether in the instant case the applicant was entitled to be heard before the order of confiscation of its vehicle was passed by the Court. In this connection, a reference to the provisions of Sections 98, 99 and 100 of the Act would be useful.

20. Section 98 provides for things liable to confiscation and so far as it is relevant here, it says:

Section 98. (1) ...

(a) ...

(b) ...

(c) ...

(d) ...

(2) Any receptacle, package or covering in which any of the articles liable to confiscation, under Sub-section (1) is found and the other contents of such receptacle, package or covering and the animals, carts, vessels or other conveyances used in carrying any such article shall like-wise be liable to confiscation by the order of the Court.

Section 99 which is material in this context reads thus:

Section 99. When during the trial of a case for an offence under this Act the Court decides that anything is liable to confiscation under the foregoing section, the Court may, after hearing the person, if any claiming any right thereto and the evidence if any, which he produces in support of his claim, order confiscation, or in the case of any article other than an intoxicant, hemp, mhowra flowers or molasses give the owner an option to pay fine as the Court deems fit in lieu of confiscation:

Provided that no animal, cart, vessel, vehicle or other conveyance shall be confiscated if the owner thereof satisfies the Court that he had exercised due care in preventing the commission of the offence.

(Italics ours.)

It is, therefore, clear that during the course of the trial, when the Court decides that anything is liable to confiscation under Section 98, the Court is given the discretion either to confiscate or not to confiscate such a tiling but before it exercises its discretion either to confiscate or not to confiscate, it is obligatory on the Court to hear the person claiming any right to such property and also hear the evidence if any which he may produce in support of his claim, and it is after hearing- the person and the evidence adduced by him that the Court is to exercise its discretion whether or not it should confiscate the thing liable to confiscation. It is needless to say that no party can be heard and would be able to produce evidence in support of his claim unless he is given a notice. Admittedly, the applicant was not a party to the criminal proceeding. The learned trial Magistrate was fully aware that the applicant was putting up a claim of ownership of the vehicle and on that basis had also applied for restoration of possession. It is not a case, therefore, where there was nothing before the learned Magistrate to show that any third person was claiming a right to the property liable to confiscation. The words 'if any' used in Section 99 definitely show that if the Court is aware of any such person claiming right to the property liable to confiscation, it is after hearing such party and also hearing the evidence produced by him that the Court is to exercise its discretion whether or not it should confiscate the property liable to confiscation. It is common ground that in this ease no such notice was issued by the learned trial Magistrate before he passed an order confiscating the vehicle. Proviso to Section 99 makes an exception to the principal provision of that section, in that it says that no animal, car, vessel, vehicle or other conveyance shall be confiscated if the owner thereof satisfies the Court that he had exercised due care in preventing the commission of the offence. In the instant case, therefore, after issuing a notice to the applicant if he had appeared and had produced evidence to satisfy the Court that he had exercised due care in preventing the commission of the offence, there could be no discretion left in the Court for confiscating the vehicle and in such a case, the proviso says that the Court shall not confiscate the vehicle. Though, therefore, the Act itself casts an obligation on the Court to hear the applicant and the evidence which he might produce to satisfy the Court that he had exercised due care in preventing the commission of the offence, the learned Magistrate having1 failed to issue notice to the applicant in spite of the specific provisions of Section 99 of the Act, the applicant was deprived of a hearing to which he was entitled with the result that he was also deprived of his property without giving a hearing. In our opinion, therefore, in the instant case the applicant had statutory right to be heard before his vehicle was confiscated to the Government, under Section 99 of the Act. Incidentally we may also refer to Section 100 of the Act the proviso to which also confers a right on a person claiming any right to anything liable to confiscation under Section 98 of the Act. This section applies to the situation where an offence under the Act has been committed and the offender is not known or cannot be found.

21. Apart from the provisions of Sections 98, 99 and 100 of the Act, no person can be deprived of his property without giving him a hearing. In such cases, therefore, apart from this specific provision of Sections 99 and 100 it was necessary for the learned Magistrate to issue a notice to the applicant before the vehicle was confiscated to the State.

22. In this connection we may refer to a few decisions under the Opium Act, 1878 and one decision under Mysore Prohibition Act, 1948. In Manghcm Dass v. Bahim Bux A.I.R [1921] . Pat. 232 the Patna High Court has held that an order confiscating the conveyance under Section 11 of the Opium Act, 1878 should not be passed without giving an opportunity to the alleged owner to prove that he did not know and had no reason to believe that opium was transported in the conveyance in question. That was also a case where the Police had seized a motor car on the ground that opium was transported in it by the accused persons. The order of confiscation of the motor car was passed by the Sub-Divisional Magistrate without hearing the alleged owner and, therefore, when that matter went in appeal to the Sessions Court, the learned Sessions Judge made a reference to the High Court. The Patna High Court accepted the reference so far as it said that the alleged owner was entitled to be heard before the order of confiscation was passed and he could show that he did not know nor he had any reason to believe that the motor car was used for transporting opium. Similarly, in In re G.N. Chakrapany Chettiar A.I.R [1942] Mad. 724 the Madras High Court also took the same view and held that a conveyance ought not to be confiscated unless the owner knew or had reason to believe that his vehicle was likely to be used for the purpose of transporting contraband articles. That was also a case under Section 11 of the Opium Act, 1878. Similar view was taken by the Calcutta High Court in Shaikh Abdul Rahaman v. The King-Emperor 15 C.W.N, 296. That was a case where a boat was confiscated, because it was found to have been used for transporting opium and the High Court set aside the order of confiscation because the same was passed without giving the owner of the boat an opportunity of being heard. It is interesting to note that this view was taken by these High Courts notwithstanding the fact that neither Section 11 nor Section 12 of the Opium Act, 1878 confers any specific right on a claimant of being' heard muchless of any opportunity to be given to him for proving that he either did not know or had no reason to believe that his conveyance was used for transporting opium. Similarly, in Hassankhan v. Govt. of Mysore A.I.R [1952] Mys. 39 which was a case under Mysore Prohibition Act, 1948, the Mysore High Court was of the view that an order confiscating a conveyance under Section 14 should not be passed without giving an opportunity to the alleged owner to prove that he did not know and had no reason to believe that the conveyance was likely to be used for transporting liquor illicitly. 'We had no advantage of perusing the relevant provisions of the Mysore Prohibition Act, 1948. However it appears from the judgment cited above that there was no specific provision in the Act providing for any such notice or hearing to be given to a claimant. Even then the Mysore High Court took the view that before the conveyance could be confiscated to the State, the claimant was entitled to be heard.

23. The learned Assistant Government Pleader, however, argued that in the instant case the order of disposal of the vehicle confiscating it to the State was passed by the learned Magistrate under Section 517 of the Code and not under Section 99 of the Act and therefore question of notice does not arise. It is no doubt true that Section 517 of the Code also enables a criminal Court to make an order for the disposal of such property by confiscation. It is also true that it does not refer specifically to any notice to be given to a claimant or he being required to be heard before the order of confiscation is passed under that section. But it is necessary to notice that when Section 99 of the Act makes a specific provision for confiscation of certain kinds of properties connected with any offence under that Act, the application of Section 517 so far as confiscation is concerned is excluded. When, therefore, in cases under the Act a criminal Court passes an order disposing of any such property by confiscation it does so under Section 517 of the Code read with Section 99 of the Act. So far as the argument regarding the absence of any specific provision of notice in Section 517 is concerned, it is enough to point out that in State Bank of India v. Bajendra Kumar A.I.R [1960] S.C. 401 their Lordships have stated the position of law thus (p. 403) :.It is true that the statute does not expressly require a notice to be issued, or a hearing to be given to the parties adversely affected. But though the statute is silent and does not expressly require issue of any notice there is in the eye of law a necessary implication that the parties adversely affected should be heard before the Court makes an order for return of the seized property.

That was a case where certain currency notes were ordered to be returned by the Sessions Court to the State Bank of India, a third party and the High Court set aside that order without hearing the State Bank of India. It was under these circumstances, that the Supreme Court held that though Section 517 did not specifically refer to any notice being issued to-a third party or to a right of the third party being heard, still in the eye of law there was a necessary implication in Section 517 of the Code that the party adversely affected should be heard before the Court makes an order under Section 517 of the Code.

24. We are, therefore, of the opinion that in the instant case, the applicant had a statutory right of notice being given to it and heard before the learned Magistrate passed the order confiscating the vehicle to the State.

25. Here is, therefore, a case in which the applicant was deprived of its vehicle, a property worth about Rs. 36,330 and out of the price of which only Rs. 14,225 were received by the applicant, without issuing a notice to it and without giving it an opportunity to produce evidence to prove that in spite of its due care to prevent the offence being committed, the respondents used it for commission of the offence even though the applicant was not at fault. After such an order was passed by the trial Court, the applicant not being a party to it, the order could not be challenged by it, with the result, that the order came to be confirmed by the Sessions Court in Criminal Appeal No. 105 of 1969 and thereafter by this Court in Criminal Appeal No. 499 of 1970. It is possible to contend as the learned Counsel Mr. Vyas has done that all these judgments including the judgment of this Court were obtained by abuse of process though inadvertently because no notice was issued to the applicant much less it was heard as required by Section 99 of the Act. The learned Counsel Mr. Vyas has also argued that these judgments so far as the disposal of the vehicle is concerned having been obtained without hearing the applicant and, therefore, in violation of the principle of natural justice it could be said that these judgments so far as they related to the disposal of the vehicle by confiscation of the same to the State, were without jurisdiction. In fact this Court in A.H. Satranjiwala v. The State cited above has observed that if a judgment or order is passed in violation of the principle of natural justice, such a judgment would be a judgment passed without jurisdiction. We are, however, doubtful whether a judgment or order passed without hearing a party would be a judgment or order without jurisdiction. In the instant case however the judgment of the trial Court or of the lower appellate Court or even of this Court could be said to have been obtained in violation of the principles of natural justice and therefore by abuse of process, though inadvertently, so far as these judgments relate to the disposal of property. At any rate we have no hesitation in holding that this is a fit case where in order to secure the ends of justice it is necessary in the instant case to order rehearing afresh of the appeal so far as it is against the order of disposal of the vehicle, for which a High Court in our opinion has inherent power in a ease like the present one.

26. The learned Counsel Mr. Vyas has also urged before us that a third party aggrieved by an order affecting him on the ground that he is not even given a hearing can apply under Section 561A of the Code for setting aside the judgment or order even though the party has the remedy under the Code. In support of his argument he has relied upon Nawal Kishore v. State of Punjab A.I.R [1964] P&h.; 269. In that case, warrant, of search on the face of it was illegal as the Indian Press Emergency Powers Act, 1931, under which the Sub-Divisional Officers purported to have issued it, was no longer on the Statute Book having been repealed by the Press (Objectionable Matter) Act, 1951. The Punjab High Court, therefore, held that though the petition filed by the aggrieved party under Section 99B of the Criminal Procedure Code for want of an order of forfeiture under Section 99A of the Code, was not tenable still as the illegality had come to the notice of the High Court, it could interfere, and in exercise of its power under Section 561A of the Code, prevent the abuse of the process of the Court and secure the ends of justice by calling upon the Government to restore the property seized from the petitioner. We are, therefore, unable to find anything in this decision to say that even though a remedy is available to an aggrieved party, High Court can interfere under Section 561A of the Code. In fact, the facts in that case were such that there could be no remedy available to the petitioner to challenge the order. The only provision available was Section 99B of the Code which could not apply because there was no order of forfeiture.

27. The learned Counsel also raised another contention before us and it is this, that according to him, the power of confiscation conferred on a criminal Court by Section 99 of the Act is limited only to the course of the trial. After the trial is over, the aggrieved party can apply under Section 517 of the Code for setting aside the order of confiscation and the restoration of the property to him, 'We need not enter into this question because we find from the record that an application was made by the applicant to the trial Court after the Criminal Appeal No. 499 of 1970 was heard and disposed of by this Court and the trial Court rightly rejected that application, because the order of disposal was already confirmed by this Court.

28. In the view, therefore, we have taken, the applicant is entitled to the rehearing afresh of the appeal so far as the disposal of the vehicle by confiscation is concerned. Accordingly, the order passed by this Court so far as it relates to the disposal of the vehicle by confiscation to the State deserves to be set aside. The difficulty then arises regarding the rehearing of the appeal on the question whether or not the lower Courts were right in confiscating the vehicle to the State. In this connection we have already indicated that there being no notice issued to the applicant he could not adduce any evidence in support of his claim nor could he place any material on the record to show that in spite of his due care to prevent the vehicle being used for the commission of any offence under that Act the respondents had used it for commission of such offence. We have, therefore, no material on the record on the basis of which we can hold either way on the issue which requires evidence, and in respect of which the onus is only on the applicant to prove in view of the proviso to Section 99 of the Act. Surely the State who is a party to this proceeding has also right to adduce evidence to prove that the applicant had not exercised due care in preventing the offence. That being the position, we are not in a position, to decide the question whether or not in the circumstances of this case the vehicle is liable to be confiscated to the State. We, therefore, think that the proper course in this case would be to set aside the order passed by this Court in Crimnal Appeal No. 499 of 1970 and Criminal Revision Application No. 320 of 1970 so far as the order relates to the disposal of the vehicle by confiscation to the State and remand the case to the trial Court for disposal according to law after giving an opportunity to the parties on both the sides to adduce evidence on the issues required to be decided under the provisions of Section 99 of the Act. We, therefore, pass the following order:

29. The application is allowed. The order passed by this Court in Criminal Appeal No. 499 of 1970 and Criminal Revision Application No. 320 of 1970 confirming the order of the Sessions Court in Criminal Appeal No. 105 of 1969 on its file, and also the order passed by the trial Court in Criminal Case No. 289 of 1969, so far as these orders relate to the disposal of the vehicle by confiscation of the same to the State, are set aside and the proceedings are remanded back to the trial Court for disposal of the case according to law, so far as it relates to the disposal of the vehicle by confiscation to the State. On receipt of the record and proceeding, the trial Court shall issue notices to the parties and the present applicant and after hearing the parties including the present applicant on the issue as to whether or not the vehicle could be confiscated to the State, shall dispose of the case according to law in the light of the observations made in the judgment, so far as it relates to the disposal of the vehicle by confiscation to the State.

30. The interim stay granted in the proceeding is made absolute till the final disposal of the case by the trial Court, so far as it relates to disposal of the vehicle by confiscation to the State.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //