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Shyam Bihari Vs. State of Madhya Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMadhya Pradesh High Court
Decided On
Judge
Reported in1973CriLJ1673; 1973MPLJ590
AppellantShyam Bihari
RespondentState of Madhya Pradesh
Cases ReferredAndhra Pradesh v. Devireddi Naei Reddi
Excerpt:
.....the earlier decision was without jurisdiction or in default of appearance, without an adjudication on the) merits or without notice of hearing the parties. the legal position is well settled and discussed in the decision by mookeriee. for fundamentally different are the consequences of failure to comply with statutory requirements in the assumption and in the exercise of jurisdiction. the decision of all other questions arising in the case is but an exercise of that jurisdiction .since jurisdiction is the power to hear and determine it does not depend upon the regularity of the exercise of that power or upon the correctness of the decision pronounced, for the power to decide necessarily carries with it the power to decide wrongly as well as rightly. i am satisfied that the petitioners..........of the rules contained in chapter i, part i, high court rules. the rules nowhere give to a single judge jurisdiction to hear and dispose of an application under article 228. the order of the learned single judse withdrawing the appeal must therefore be regarded as a nullity.that decision has no application to the facts of the present case. there, their lordships were considering the effect of non-compliance of rule 4. that was entirely different provision. it reads as follows:4. save as provided by law or by these rules or by special orders of the chief justice, all matters shall be heard and disposed of by a bench of two iudges.6. the law is auite clear that if there is inherent lack of iurisdiction. the proceedings are null and void and mav be attacked in collateral proceedings: but.....
Judgment:
ORDER

A.P. Sen, J.

1. This order will also govern the disposal of Misc. Criminal Case No. 32 of 1972 (Kailash Dubey v-State of M. P.)

These are two petitions under Section 561-A of the Code of Criminal Procedure for setting aside the judgment and sentences passed by me in Criminal Appeal No. 608 of 1969 (Awadesh Singh v. The State of M. P.). decided on 27-10-1971.

2. Having heard the Parties at a considerable length. I have formed the opinion that these petitions must be dismissed. In my view, the petitioners have chosen a wrong forum for the redress of their grievances, if any. Their remedy lay by way of an appeal to the Supreme Court of India.

3. Three questions arise for considerations in these petitions namely:-

(1) Whether the High Court has any jurisdiction to review its judgment or sentences in exercise of its inherent powers under Section 561-A of the Code of Criminal Procedure?

(2) Whether the judgment and sentences passed by me in appeal were a nullity, having regard to the provisions contained in rule 1' (a) (iv). Chapter I of the High Court Rules?

(3) Whether the petitioners were not served with any notices under Section 423 (1A) of the Code of Criminal Procedure, and alternatively, the notices, if served, were invalid because they did not mention the sections under which they were convicted? If so, the effect of such non-service or defect in the notices. The questions must be answered against the petitioners.

4. It is now well settled that Section 561-A of the Code of Criminal Procedure confers no new powers on the High Court. It merely safeguards all pre-existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. The section provides that those powers which the Court inherently possesses shall be preserved lest it be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent powers had survived the passing of the Code. (See: The State of U. P. v. Mohammad Nairn : [1964]2SCR363 . Under Section 369, when once the Court has signed its judgment, the Court becomes functus officio except for the purpose of correcting clerical errors. The judgment of the High Court in its criminal jurisdiction is ordinarily final and it is not open to the High Court to review or alter it. In Sankatha Singh v. State of U. P.. : AIR1962SC1208 their Lordships of the Supreme Court stated as follows:..Section 369, read with Section 424 of the Code, makes it clear that the appellate Court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error.

An appellate Court has, therefore, no power to review or restore an appeal which has been disposed of. Even though the High Court undoubtedly has inherent powers under Section 561-A. it cannot pass the order of re-hearing of the appeal in the exercise of such powers when Section 369,. read with Section 424 of the Code, specifically prohibits the altering or reviewing of its order by a Court. In the aforesaid case, their Lordships have reiterated this rule in these words:

Inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing.

Emphasis is, however, laid on the words 'save as otherwise provided' appearing in Section 369 of the Code, and it is urged that the provisions of Section 369 are controlled by those contained in Section 561-A. There is no merit in contention. The words 'save as otherwise provided' in Section 369 cannot have reference to Section 561-A. These words refer to the express provisions of the Code which empower the Court to alter or review its judgment in certain specified cases. It, therefore, follows that the High Court has no inherent powers to alter or review its own judgment in a criminal case once it. has been pronounced or signed. There are no doubt well recognized exceptions to the above principle, such as cases where the earlier decision was without jurisdiction or in default of appearance, without an adjudication on the) merits or without notice of hearing the parties. The decision in Harra Bai v. State of M. P.. 1972 MPLJ (Notes) 57. Is distinguishable on facts. There, the High Court exercised its powers under Section 561-A of the Code to correct a clerical mistake.

5. The contention that the judgment and sentences passed by me, sitting as a Single Judge, are a nullity is based on the provisions contained in Rule 1 (a) (iv). Chapter I of the High Court Rules, which reads as follows:

1. The following matters shall ordinarily be heard and disposed of by a Judge sitting alone-

XX XX XX(q) An appeal, petition or reference under the Code of Criminal Procedure, other than-

(iv) a proceeding in which notice has been issued to an accused who has been sentenced to imprisonment or transportation for a term of two years or more, to show cause why the sentence should not be enhanced;.

The heading of Chanter I in which the rule finds place is 'Jurisdiction of a Single Judge and of Benches of the Court'. It is urged that anv breach of the rule would render the iudgment a nullitv. Reliance is placed on the District Transport Association, Motor Operators. Bhandara v. The Taxation Authority and Secretary Regional Transport Authority, Jabalpur (ILR 1960 Madh Pra 536) in support of the contention. In that case. Dixit. C. J. and Pandey, J. while dealina with Rule 4 of the Rules contained in Chapter I. Part I, High Court Rules, stated as follows:

In our opinion, the order of the learned Single Judge withdrawals the appeal to this Court for disposal was not legal. Under the rules framed by this Court, a petition under Article 228 of the Constitution of India could be heard and decided only by a Bench of two Judges as required by Rule 4 of the Rules contained in Chapter I, Part I, High Court Rules. The Rules nowhere give to a Single Judge jurisdiction to hear and dispose of an application under Article 228. The order of the learned Single Judse withdrawing the appeal must therefore be regarded as a nullity.

That decision has no application to the facts of the present case. There, their Lordships were considering the effect of non-compliance of Rule 4. That was entirely different provision. It reads as follows:

4. Save as provided by law or by these rules or by special orders of the Chief Justice, all matters shall be heard and disposed of by a Bench of two iudges.

6. The law is auite clear that if there is inherent lack of iurisdiction. the proceedings are null and void and mav be attacked in collateral proceedings: but If there is only illegal or irregular exercise of iurisdiction. the course open to the parties is onlv by wav of appeal, revision or review. Where there is no initial lack of iurisdiction. the iudgment rendered is not a nullitv. The legal position is well settled and discussed in the decision by Mookeriee. Acting C. J.. in Hriday Nath Roy v. Ram Chandra Barna Sarma, ILR 48 Cal 138 : (AIR 1921 Cal 34 (FB)).

This jurisdiction of the Court may be qualified or restricted by a variety of circumstances. Thus, the jurisdiction may have to be considered with reference to place, value and nature of the subject-matter. The power of a tribunal may be exercised within defined territorial limits. Its cognizance may be restricted to sub-ject-matters of prescribed value. It may be competent to deal with controversies of a specified character for instance, testamentary or matrimonial cause, acquisition of lands for public purposes, record of rights as between landlords and tenants. This classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject-matter is obviously of a fundamental character. Given such jurisdiction. we must be careful to distinguish exercise of jurisdiction from existence of jurisdiction; for fundamentally different are the consequences of failure to comply with statutory requirements in the assumption and in the exercise of jurisdiction. The authority to decide a cause at all and not the decision rendered therein is what makes up jurisdiction; and when there is jurisdiction of the person and subject-matter. the decision of all other questions arising in the case is but an exercise of that jurisdiction .... Since jurisdiction is the power to hear and determine it does not depend uPon the regularity of the exercise of that power or upon the correctness of the decision pronounced, for the power to decide necessarily carries with it the power to decide wrongly as well as rightly.

If the decision is wrong, 'the wronged party can only take the course prescribed by law for setting matters right: and if that course is not taken the decision, however wrong cannot be disturbed.' Malkar-iun v. Narhari (1901) ILR 25 Bom 337 at P. 347 (PC). See also, the decision of their Lordships in Hira Lai Patni v. Sri Kali Nath AIR 1962 SC 199.

7. Now the word 'ordinarily' in Rule 1 (a) (iv) of the High Court Rules cannot mean 'always'. Rule 1 does not enact that all classes of cases mentioned in the different clauses shall always be heard by a Bench of two Judges. It onlv provides that the classes of cases specified therein will 'ordinarily' be heard by a Bench of two Judges. That means that the jurisdiction of a Single Judge to hear such classes of cases under particular circumstances is not ruled out. It is significant to note that under Rule 4. which Dixit, C. J. and Pandey, J. interpreted, the expression 'ordinarily' is omitted. It provides in express terms that save as provided by law or by these rules or by special orders of the Chief Justice, all matters shall be heard and disposed of by a Bench of two Judges. The use of the word 'shall' makes the requirement of Rule 4 mandatory. That is not the case under Rule 1 (a) (iv). If the rule making authority intended that the matters mentioned in Rule 1 should be heard by a Bench of two Judges, thev would have made a provision in the same terms as in Rule 4.

8. The same auestion arose before a Full Bench of the Andhra Pradesh High Court In re, Putta Ranganarakulu. AIR 1956 Andh Pra 161 : (1956 Cri LJ 1049 FB). There a Single Judge of the Hieh Court sitting in summer vacation dismissed an appeal preferred by an accused from jail to the Hieh Court aeainst a sentence of transportation for life notwithstanding the provisions of Rule 218 of the Criminal Rules of Practice, The provisions of that rule were in pari materia with rule 1 fa). K. Subba Rao. C. J., stated as follows.

The words 'will ordinarily be heard by a Bench of two Judges' are clear and unambiguous and thev cannot obviously mean 'always'.

The learned Chief Justice pointed out that if the rule-making authority intended that the matters mentioned in rule 218 shall be heard by a Bench of two iudees, they would have made a provision in the same terms as in rule 218-A. The question again arose before another Full Bench of the Andhra Pradesh High Court in Public Prosecutor, Andhra Pradesh v. Devireddi Naei Reddi AIR 1962 Andh Pra 479 : (1962) 2 Cri LJ 727 (FB), and the view taken by Subba Rao. C. J.. was reiterated. I respectfully follow the same view. The judgment in the appeal is. therefore, not vitiated by reason of the terms of rule 1' (q) (iv) of the High Court Rules.

9. No doubt, the appeal was a 'proceeding', within the meaning of rule 1 (a) (iv), in which notice had been issued to Awadesh Sinah an accused who had been sentenced to imprisonment for a term of three years, to show cause whv the sentence awarded to him by the trial Court should not be enhanced. Initially, the appeal could be heard and decided by a Single Judge. But once such a notice was issued to Awadesh Sinph, rule 1 (a) (iv) required the Registry (Registrar?) to place the appeal before a Bench of two Judges. Due to inadvertence the appeal was heard by me as a Single Judge without any objection by Awadesh Singh. I could understand if Awadesh Singh came forward with the application under Section 561-A of the Code for a rehearing on. the ground that there was irregularity. Apparently, no preiudice has been caused to Awadesh Singh and he has chosen to serve out the sentence. The difficulty is that the petitioners have come forward with the application and their case does not fall within rule 1 (q) (iv). Thev had not been sentenced to anv imprisonment by the learned Additional Sessions Judge and, therefore, there was no auestion of an enhancement of their sentence. The notices issued to them were, in reality, notices under Section 11 (3) of the Probation of Offenders Act. These notices were proceedings separate and distinct from the appeal. In a criminal appeal which a Single Judge is competent to hear, he can undoubtedly exercise the powers under Section 11(3) of the Act. of his own motion. Such an appeal is not governed by rule 1 (a) (iv) of the High Court Rules.

10. In : AIR1962SC1208 (supra), the decision of their Lordships, if in that case it was found that there was no notice, would have been otherwise. The auestion of notice, therefore, assumes importance. From the circumstances appearing on record. I am satisfied that the petitioners were served with the notices to show cause whv the benefit under Section 4 of the Probation of Offenders Act extended to them should not be withdrawn. On 28-3-1970. the notices were issued to them. On 23-4-1970 Kailash Dube was arrested in connection with an offence punishable under Section 302 of the Indian Penal Code. He was served with the notice on 25-4-1970. Indeed learned Counsel appearing on his behalf frankly concedes that he was served, but his contention is that as he was served while in police custody, the service was not a valid one. On 16-7-1971. since tha petitioners did not appear, bailable warrants of arrest were issued against them. The warrant against Kailash Dube was returned unserved by the Station Officer. T. T. Nagar, Bhopal, vide report dated 9-8-1971. In that report, the Station Officer stated that Kailash Dube had been convicted under Section 302 of the Indian Penal Code and serving out the sentence of life imprisonment. The contention that the police should have produced him is neither here nor there. Admittedly, Kailash Dube never reauested the iail authorities for his Production in this Court.

11. The notice under Section 11(3) of the Probation of Offenders Act (Ex. A) issued against Shyam Bihari was personally served on him vide process-server's endorsement dated 24-4-1970. and it bears the initials of Shyam Bihari of even date. In response to the notice, Shvam Bihari wrote a letter dated 25-4-1970 to the Deputy Registrar of this Court (Ex. B) stating that he did not want to represent in the matter. Despite this, when Shvam Bihari did not appear, a bailable warrant was issued on 16-7-1971 against him. The warrant was returned with the endorsement that Shyam Bihari was serving out a sentence under Section 302 of the Indian Penal Code in the Naini Jail. It is accepted before me that Shvam Bihari was arrested at Allahabad on 23-6-1971 in connection with offences punishable under Sections 302 and 307 of the Indian Penal Code. Apparently, he was later released on bail by the Allahabad High Court on 20-9-1971.

12. The application under Section 561-A of the Code though filed in the name of Shvam Bihari is not supported by an affidavit by him. One Awadh Narayan, brother-in-law of Shvam Bihari, has sworn an affidavit alleging that the notice issued to Shvam Bihari was never served on him and that the letter dated 25-4-1970 purported to have been sisned by Shvam Bihari was not written by him in response to the notice. I, therefore, felt a necessity of an enauirv into the matter. The learned Sessions Judge afforded an opportunity to Shyam Bihari to cross-examine Shankerlal, Head Constable, who effected the service. The learned Sessions Judge has in his report dated 11-1-1972 found, as a fact, that the notice (Ex. A) was personally served on Shyam Bihari. It was then urged before me that (i) Shankerlal. Head Constable, be recalled for the purpose of identifying whether the person to whom he served the notice was Shvam Bihari or not and (ii) Shyam Bihari be permitted to examine an handwriting expert with a view to ascertain whether the signature appearing on the notice was his signature and whether the letter written in response to the notice was written by him. The matter was again remitted to the learned Sessions Judge for the purpose. He recalled Shankerlal, Head Constable, who stated that he had obtained the signatures 'X to X of a person who came out of Quarter No. 7/2, North T. T. Nagar. Bhopal. He also proved the endorsement 'Y to Y' regarding service. In his cross-examination, he was frank enough to state that he could not remember the age of the person on whom the notice was served by him. but stated that he was aged about 25 vears. Much is made of this fact. The learned Sessions Judge by his report dated 25-2-1972 has stated that Shvam Bihari did not want to examine any hand-writing, expert, and that in fact he went to the extent of denying that he had made any such application in this Court. The failure of (sic) the opportunity is a circumstance which speaks for itself. The genuineness of the signature on the notice as well as of the letter is beyond question. Head Constable, Shankerlal, has no doubt stated that he does not recollect or remember the identity or age of the person on whom he served the notice. But that is quite natural. The learned Sessions Judge rightly observes in his report dated 25-2-1972 that 'it is difficult to expect a constable who served a notice about two years back, to recollect and remember the identity or age of the person on whom he served the notice.' The finding of the learned Sessions Judge that Shyam Bihari was served personally with the notice must, therefore, be confirmed.

13. The result, therefore, is that both the petitions are dismissed as being wholly without substance.


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