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Gobind Sahai Vs. Emperor - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad
Decided On
Judge
Reported inAIR1916All183; 32Ind.Cas.335
AppellantGobind Sahai
RespondentEmperor
Excerpt:
criminal procedure code (act v of 1898), section 369 - rejection of application for revision--review--power of high court--order, if required to be sealed--allahabad high court rules, ch. vii, rules 5 and 8. - - 2. the applicant gobind sahai was called upon by a magistrate of the first class to show cause why he should not be bound over to be of good behaviour. we, therefore, are clearly of opinion that an application for review in the present matter cannot lie. but in our opinion the rules mentioned above clearly direct that such orders should be sealed. in so far as it is an application for review, the present application must fail and we reject it......he then applied in revision to this court on the 26th of june 1915. on the 22nd of july 1915 mr. justice banerji, sitting singly after hearing counsel on his behalf, passed an order rejecting the application. that order was signed by mr. justice banerji but was not sealed. on the 6th of september 1915 the applicant presented an application to the learned. chief justice on which the following order was passed: 'lay before mr. justice banerji and let this man be informed of the date fixed for hearing.' on the 10th of november 1915 mr. justice banerji passed an order referring the question to this court as to whether or not an application for review can he in the circumstances of the case. he appears to have been in doubt as to the exact nature of this application, as he remarks in the.....
Judgment:

1. The facts before us are as follows:

2. The applicant Gobind Sahai was called upon by a Magistrate of the First Class to show cause why he should not be bound over to be of good behaviour. An order was passed against him and he was directed to furnish security. He appealed to the District Magistrate, but his appeal was dismissed. He then applied in revision to this Court on the 26th of June 1915. On the 22nd of July 1915 Mr. Justice Banerji, sitting singly after hearing Counsel on his behalf, passed an order rejecting the application. That order was signed by Mr. Justice Banerji but was not sealed. On the 6th of September 1915 the applicant presented an application to the learned. Chief Justice on which the following order was passed: 'Lay before Mr. Justice Banerji and let this man be informed of the date fixed for hearing.' On the 10th of November 1915 Mr. Justice Banerji passed an order referring the question to this Court as to whether or not an application for review can He in the circumstances of the case. He appears to have been in doubt as to the exact nature of this application, as he remarks in the course of his order that 'it is difficult to say whether this last application is a fresh one for revision or an application for review of judgment'. He referred the case, however, to a Bench of two Judges with a view to a decision on the question we have mentioned above, pointing out that a Full Bench of the Calcutta High Court had in In the matter of the petition of F.W. Gibbons 14 C.42 held that no review could lie. Apparently it was not brought to Mr. Justice Banerji's notice that the point is one which is already covered by a decision of two Judges of this Court. In the case of Queen-Empress v. Durga Charan 7 A. 672 a Division Bench of this Court held that the High Court has no power under Section 369 of the Code of Criminal Procedure to review an order dismissing an application for revision made by an accused person and the only remedy is by an appeal to the prerogative of the Crown as exercised by the Local Government. The Code of Criminal Procedure of 1882 was then in force and in this respect does not differ from the present Code. It is, moreover, in full agreement with the decision mentioned above reported as In the matter of the petition of F.W. Gibbons 14 C.42. No dissent has ever been expressed from this decision in this Court and we can see no reason whatsoever, when the Legislature has not in express terms given this Court statutory power to review its judgment in criminal cases, to differ from the above-mentioned ruling. We, therefore, are clearly of opinion that an application for review in the present matter cannot lie. But we have also been pressed with the decisions of this Court in the cases of Queen-Empress v. Lalit Tiwari 21 A. 177; A.W.N. (1899) 15 and of Emperor v. Kallu 27 A. 92; A.W.N. (1904) 195; 1 A.L.J. 495; 1 Cr.L.J. 710 and it is urged before us that the order of Mr. Justice Banerji not having been sealed, it is still open to the applicant to come to this Court with the present application. On behalf of the Crown it was urged that the order did not require sealing in view of the language of the Rules 5 and 8 of Chapter VII of the Rules of this Court. It is clear from the office report that such orders are not usually sealed; but in our opinion the rules mentioned above clearly direct that such orders should be sealed. This being so, the two rulings mentioned above do apply to the circumstances of the present case. But in accordance with those two rulings it is only the Judge concerned who can deal with this matter. It will be open, therefore, to the present applicant to make any such application as he deems fit to Mr. Justice Banerji in view of those two rulings. It is not possible: for us to deal with this matter. In so far as it is an application for review, the present application must fail and we reject it. In so far as it is an application contemplated by the rulings mentioned above, it must be dealt with by Mr. Justice Banerji. For this purpose it must be sent back to Mr. Justice Banerji and it will be open to him to pass any such order which he may deem fit to pass.

3. On the case coming up before Mr. Justice Banerji, His Lordship passed the following

Order

4. A Bench of this Court has held that as the order passed by me on the 22nd July 1915 was not sealed, this application for revision must be deemed to be still pending. I have heard the learned Vakil who has now appeared for the applicant and who has addressed the Court at considerable length. I see no reason, in view of the findings of the Courts below, to admit this application. I accordingly reject it.


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