Skip to content


In Re: Biyamma W/O Mohamad - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKarnataka High Court
Decided On
Case NumberCriminal Petn. No. 435 of 1962
Judge
Reported inAIR1963Mys326; 1963CriLJ656
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 369, 424, 430 and 561A; Constitution of India - Article 227
AppellantIn Re: Biyamma W/O Mohamad
Appellant AdvocateG. Shankara Chetty, Addl. Asst. Adv. General
Respondent AdvocateK.V. Narayanappa, Adv.
Excerpt:
.....to do the right and to undo a wrong in the course of administration. 8. if the 'criminal courts had no inherent jurisdiction to alter or review their judgments there was no need to prohibit the exercise of that power by enacting section 369 as well as section 424. the legislature would not have prohibited the exercise of a non-existing power. review or alteration of a judgment should not be done except under exceptional circumstances and that strictly in accordance with the provisions contained in section 561-a. emperor air1933cal870 .for the reasons mentioned above, i am unable to subscribe to the correctness of that decision as well as the decision of the andhra pradesh high court in public prosecutor v......and hear the appeal on merits which we did not do when we heard the appeal.3. if this court has power to review the order, i have no doubt it is a fit and proper case for so doing. therefore, all that we have to see is whether we have power to review our order referred to above.4. the provisions of law that are necessary to be borne in mind in deciding the point under consideration are sections 369, 430 and 561-a, cri. p. c.section 369 says :'save as otherwise provided by this code or by any other law for the time being in force or, in the case of a high court by the letters patent or other instrument constituting such high court, no count, when it has signed its judgment shall alter or review the same, except to correct a clerical error.'in is well settled that section 369 by itself.....
Judgment:

Hegde, J.

1. In this application under Section 561-A, Cri. P. C., the State seeks to get reversed our order made in Criminal Appeal No. 51 of 1962, wherein we set aside the order of conviction made by the learned Second Additional Sessions Judge, Belgaum, in Sessions Case No. 49 of 1961 and directed a retrial.

2. The material facts are very few. In Sessions Case No. 49 of 1961. the two accused before the trial Court were tried for an offence under Section 302 read with Section 34, I. P. C. In that case, the first accused had to be provided with legal assistance by the State, as she was too poor to engage a lawyer to defend her. In the trial Court she was convicted and sentenced to suffer imprisonment for life. A-2 was acquitted. As against her conviction and the sentence, she appealed to this Court from Jail. In this Court her appeal was handled by one of the counsel appearing on behalf of the Legal Aid Society. At the hearing, the learned Counsel for her represented to the Court that the Counsel appointed by the trial Court to defend the accused had not enough time to acquaint himself with the facts of the case. It was said that he had been engaged on the very day the case came up for trial, i.e., 11-12-1961; therefore, he was unable to discharge his duties properly. This statement made on behalf of the appellant was not controverted by the learned Counsel appearing for the State. The Judge's notes printed also gave us the impression that the defence Counsel had been engaged only on the date of the trial of the case. Therefore, we allowed the appeal and set aside the conviction of the appellant with the following remarks:

'It is unfortunate that despite this Court repeatedly pointing out to the learned Sessions Judges that the principles of natural justice require that the Counsel appointed on behalf of the State for an accused, who is tried for a grave charge, should be given sufficient time to prepare the case, there are still several Sessions Judges who seem to be either ignorant or indifferent both to the principles of natural justice as well as to the decisions pronounced by this Court.'

It is now brought to our notice that our conclusion that the standing Counsel had been appointed on the date of the trial of the case is not factually correct and that at the hearing of the appeal, the learned Counsel on either side as well as this Court had proceeded on a misapprehension of facts. For that reason it is prayed that we should review the order made by us in Criminal Appeal No. 51 of 1962 and hear the appeal on merits which we did not do when we heard the appeal.

3. If this Court has power to review the order, I have no doubt it is a fit and proper case for so doing. Therefore, all that we have to see is whether we have power to review our order referred to above.

4. The provisions of law that are necessary to be borne in mind in deciding the point under consideration are Sections 369, 430 and 561-A, Cri. P. C.

Section 369 says :

'Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court by the Letters Patent or other instrument constituting such High Court, no Count, when it has signed its judgment shall alter or review the same, except to correct a clerical error.'

In is well settled that Section 369 by itself applies only to judgment in trial cases. But reading Section 369 with Section 424, Cri. P. C. which provides that the Rules in Chapter XXVI (Section 369 is in Chapter XXVI) as to the judgment of a Criminal Court of original jurisdiction shall apply, so far as may be practicable, to the judgment of any Appellate Court other than a High Court, there is no doubt that appellate Courts other than High Courts are precluded from altering of reviewing their judgments once they are pronounced and signed. See Sankatha Singh v. State of Uttar Pradesh : AIR1962SC1208 . But this rule does not apply to the decision under consideration. Then we come to Section 430.

Section 430 reads :

'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.'

We shall presently consider what is meant by the expression 'final' found above. Then comes Section 561-A which reads:

'Nothing in this Code 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.' From the language of the section it is clear that this Section does not confer new powers but merely safeguards the existing inherent powers. See: Emperor v. Nazir Ahmad . Section 561-A does not come into operation, if a given case is governed by any other provision of law. It is a residuary power. Hence if the finality provided in Section 430 is held to prohibit the Court from altering or reviewing the judgments passed then Section 561-A can be of no assistance. Therefore, we have to first find out the scope of Section 430.

5. While Section 369 specifically prohibits the Court from altering or reviewing a judgment signed, Section 430 merely says that the judgment passed by the appellate Courts is 'final'. This difference in the language employed in the two sections is Hot without significance. I respectfully agree with Seth, J. when he says in Chandrika v. Rex : AIR1949All176 that the expression 'Judgment shall be final' found in Section 430 means that the judgment shall not be open to any further appeal. The powers of interference otherwise than in appeal are not taken away.

6. The expression 'judgment shall be final' is an expression familiar to lawyers and Judges. It is found in numerous Statutes laying down rules of procedure. That expression is always understood to mean that no further appeal lies as against the judgment in question. But such provisions do not exclude on their own force the right of revision or review or alteration if otherwise such courses are permissible. But the absence of prohibition cannot be considered as a conferment of power. Unlike in the Civil Procedure Code, there is no provision in the Criminal Procedure Code conferring power on the Criminal Courts to alter or review their judgments or orders. Therefore, we have to see whether those powers could be considered as inherent powers falling under Section 561-A.

7. It is a cardinal principle of administration of justice that an erroneous act of the Court shall not prejudice any party. This Rule is embodied in the well known maxim 'act us curiae neminem gravabit'. Every Court whether Civil or Criminal must in the absence of express provision to the contrary be deemed to possess as inherent in its very constitution all such powers as are necessary to do the right and to undo a wrong in the course of administration.

8. If the 'Criminal Courts had no inherent jurisdiction to alter or review their judgments there was no need to prohibit the exercise of that power by enacting Section 369 as well as Section 424.

The Legislature would not have prohibited the exercise of a non-existing power. The Legislature while wisely, if I may say so with respect, prohibited the subordinate Courts from altering of reviewing their judgments left the field clear to the High Court because any error or mistake committed by the subordinate Courts can be corrected by the High Court either by exercising its revisional powers or by exercising its power of superintendence under Article 227 of the Constitution but such remedies are not available as against any errors or mistakes that may be committed by the High Court. Therefore, I am of the opinion that the High Court has inherent power to alter or review its appellate judgments.

9. The view taken by me finds support from the decision in Sri Ram v. Emperor : AIR1948All106 and the majority decision in Raj Narain v. The State : AIR1959All315 (FB). I fully accept and adopt the principles enunciated in those decisions so far as they are relevant to the point under consideration. But a contrary view has been taken in some of the decisions brought to out notice. A Bench of the Lahore High Court in Raju v. Emperor AIR 1928 Lah 462 held that there has never been an inherent power in the High Court to alter or review its own judgment once it has been pronounced or signed except in cases where it was passed without jurisdiction of in default of appearance without an adjudication on merits. Their Lordships further observed that the words 'or otherwise to secure the ends of justice' can only mean that such other inherent power as the Court possesses is likewise preserved: The High Court is not given, nor did it ever possess an unrestricted and undefined power to make any order which, it might please to consider, was in the interests of justice: Its inherent powers are as much controlled by principles and precedent as are its express powers by statute.

10. As regards the scope of the expression 'or otherwise to secure the ends of justice', I am in respectful, agreement with the observations made by their Lordships. But I am unable to discern from the judgment any principle which justifies the view that the High Court has no inherent power to alter or review its own judgment once it has been pronounced or signed excepting under the two circumstances mentioned in the judgment i.e., where it was passed without jurisdiction or in default of appearance without an adjudication on merits. Their Lordships conceded that under certain circumstances the High Court has jurisdiction to alter or review its judgment. I am aware of the facts that it is a very serious thing to alter or review a judgment once pronounced and signed. Review or alteration of a judgment should not be done except under exceptional circumstances and that strictly in accordance with the provisions contained in Section 561-A. The existence of power is one thing, its exercise is another. I am unable to understand why the exercise of the power should be limited to two circumstances. In the present case under a total misapprehension of facts we proceeded on the basis that there had been an infringement of natural justice. We had not considered the appeal on merits. Therefore, the ends ot justice require that we should review our order and hear the appeal on merits.

11. It is true that the above cited decision of the Lahore High Court was followed by a Bench of the Calcutta High Court in Dahu Raut v. Emperor : AIR1933Cal870 . For the reasons mentioned above, I am unable to subscribe to the correctness of that decision as well as the decision of the Andhra Pradesh High Court in Public Prosecutor v. Devireddi Nagi Rcddi AIR 1962 Andh Pra 479 (FB).

12. In the instant case, I am of the view that it is necessary to review and alter our earlier order allowing the appeal and ordering a retrial. Such a course is necessary to secure the ends of justice. I accordingly direct that our earlier order in Criminal Appeal No. 51 of 1962 be altered, the appeal be readmitted under its original number and listed for hearing


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