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Mahendra Pal Singh and anr. Vs. State of Uttar Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Case NumberReview Appln. No. 704 of 1958
Judge
Reported inAIR1959All313; 1959CriLJ541
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 367, 369 and 561A
AppellantMahendra Pal Singh and anr.
RespondentState of Uttar Pradesh
Advocates:Virendra Swarup Jauhary, Adv.
DispositionApplication dismissed
Excerpt:
.....therefore, that there are no definite rules as to what the judgment of a high court acting in its appellate as well as revisional jurisdiction should contain, because the judgment of the high court in its criminal jurisdiction is ordinarily final and does not therefore require the statement of any reasons, especially in a revision application where the parties are not bound to be heard. 6. the view that an order like the one sought to be reviewed by the applicants is not open to review, appears to be in consonance with the earlier decisions of this court also. 8. in my opinion, therefore, the application for review is not maintainable and must fail on that account......the applicants and that the sentence also did not appear to be excessive. at the time when the revision application was considered the counsel for the applicants was heard at some length and the order passed shows that the application was dismissed as it was found to be without merits.the applicants have now applied for a review of that order, on the ground that at the time when the application for revision was argued, the learned counsel who argued it inadvertently omitted to urge certain points of law which arose in the case and which deserved the consideration of the court.3. the first question that arises is whether such a review is permissible.4. the ordinary rule which has been enacted in section 369 of the code of criminal procedure is that no court can alter or review its.....
Judgment:
ORDER

A.P. Srivastava, J.

1. This is an application for the review of an order made by this Court on the 27th of February, 1958. The provision under which the application has been made has been mentioned at the top of the application as Section 561A, Cr. P. C.

2. It appears that the applicants were convicted by a Magistrate First Class, Bareilly under Section 325, I. P. C. and each of them was sentenced to undergo one year's Rule 1, and to pay a fine of Rs. 50/-. An appeal was preferred to the Sessions judge but failed. An application in revision was then filed on their behalf in this Court and was rejected by the order now sought to be reviewed.

It was held that there was a clear finding of fact recorded by the lower appellate court which concluded the case against the applicants and that the sentence also did not appear to be excessive. At the time when the revision application was considered the counsel for the applicants was heard at some length and the order passed shows that the application was dismissed as it was found to be without merits.

The applicants have now applied for a review of that order, on the ground that at the time when the application for revision was argued, the learned counsel who argued it inadvertently omitted to urge certain points of law which arose in the case and which deserved the consideration of the Court.

3. The first question that arises is whether such a review is permissible.

4. The ordinary rule which has been enacted in Section 369 of the Code of Criminal Procedure is that no court can alter or review its judgment after having signed it except to correct a clerical error. The rule applies to High Courts also, but in their case it is provided that review will be permissible if it is authorized by the Letters Patent or the other instrument constituting the High Court.

It is not suggested on behalf of the applicants that the Letters Patent or the other instrument constituting the Allahabad High Court contain anything authorising this Court to review its judgments. It may, however, be urged that the order sought to be reviewed cannot be considered to be a judgment as it does not comply with the requirements of Section 367 of the Code. The answer to that contention will, however, be found in the Full Bench decision of Nand Lal Chuni Lal Bodiwala v. Emperor AIR 1946 Bom 276. There it was held in clear terms:

'It must follow, therefore, that there are no definite rules as to what the judgment of a High Court acting in its appellate as well as revisional jurisdiction should contain, because the judgment of the High Court in its criminal jurisdiction is ordinarily final and does not therefore require the statement of any reasons, especially in a revision application where the parties are not bound to be heard. In the absence of anything to show that the order was passed on a preliminary ground without going into the merits of the point raised in the reference, it must, in our opinion, be presumed that the order is a final order on the merits and as such amounts to a judgment.'

In that case a reference had been disposed of by the High Court of Bombay with a very brief order consisting of five words 'no order on this reference* and it was held that the order amounted to a judgment which could not be reviewed.

5. But even apart from the provisions of Section 369, Cr. P. C., there appears to be high authority for the view that finality attaches to orders passed by a High Court in appeals and criminal revisions once they are decided, and it is not open to the same High Court to alter or review the same. Any one feeling aggrieved by the orders can seek his remedy before the Supreme Court alone. Thus, in U. J. S. Chopra v. State of Bombay : 1955CriLJ1410 Das J. (as lie then was) laid down at page 644:

'The summary dismissal of an appeal or revision by the accused with or without hearing him or his pleader, but without issuing notice to the respondent is, so far as the accused is concerned a judgment of conviction and confirmation of the sentence and he can no longer initiate revision petition against his conviction and sentence.'

Bhagwati J. agreed with this view and observed at page 650:

'The order dismissing the appeal or criminal revision summarily or 'in limine' would no doubt be a final order of the Supreme Court not subject to review or revision even by the Supreme Court itself but would not tantamount to a judgment replacing that of the lower court. The convicted person would be bound by that order and would not be able to present another petition of appeal or application for criminal revision challenging the conviction or sentence passed upon him by the lower court.'

It is true that these observations were in the nature of obiter dicta, because the real question which their Lordships were considering in that case was whether an appellant whose appeal had been dismissed summarily could insist on his case being heard on merits once again under Sub-section (6) of Section 439, Cr. P. G., if the State filed an application for enhancement of sentence. But even the obiter dicta of their Lordships of the Supreme Court is entitled to the highest respect and is binding on all the Courts of the country.

6. The view that an order like the one sought to be reviewed by the applicants is not open to review, appears to be in consonance with the earlier decisions of this Court also. Thus in Kali v. Emperor AIR 1923 All 473, the court went to the length of laying down that even if new materials had been discovered which if they were placed before the Court, it might have come to a different conclusion, the Court had no power of review and the only remedy of the accused was to approach the Government.

The decisions in Banwari Lal v. Emperor : AIR1935All466 and Debi Bux Singh v- Rex : AIR1950All299 also negatives the power of review and more recently in Jaganath Singh v. Bideshi : AIR1955All712 , it was held that in normal circumstances the High Court has no power to review its previous decision in criminal case.

An exception was, however, made in respect of those cases where a mandatory provision of law had been contravened resulting in abuse of the process of the Court. In that case a reference arising out of proceedings under Section 145, Cr. P. C., had been heard ex parte without hearing the successful party, who later sought to have the decision reviewed, but it was held that no review was permissible.

A recent decision of the Orissa High Court in Namdeo Sindhi v. State : AIR1958Ori20 , appears to be in line with this view. In that case a revision application had been dismissed. Later it was pointed out that the case had been compounded and on that ground the decision was sought to be reviewed. The review was not allowed.

7. Reliance is placed on behalf of the applicants on Shri Ram v. Emperor 0043/1947 : AIR1948All106 . In that case it was held that it was open to the Court in the exercise of its inherent powers under Section 561A of the Code to reconsider and correct obvious errors and mistakes in its order. The same view was taken in State of U. P. v. Bati : AIR1950All625 .

Without going into the question as to how farthese decisions will be affected by the pronouncement of their Lordships of the Supreme Court inthe case of : 1955CriLJ1410 and conceding forthe moment that the ratio of these decisions is correct they cannot obviously be of any help to theapplicants because in the present case their learnedcounsel has not been able to bring to my notice anyobvious error or mistake in the order by which theapplicant's application in revision was dismissed.There is, therefore, no question of reviewing theorder on the ground that it contained an obviouserror or mistake.

8. In my opinion, therefore, the application for review is not maintainable and must fail on that account. In the circumstances it is not necessary to consider the various points which the learned counsel tried to urge.

9. The application is, therefore, rejected.


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