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Hoshiar Singh S/O Jug Lal Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Misc. No. 188-D of 1957
Judge
Reported inAIR1958P& H312; 1958CriLJ1093
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 369 and 561A
AppellantHoshiar Singh S/O Jug Lal
RespondentThe State
Appellant Advocate J.L. Bhatia, Adv.
Respondent Advocate V.D. Mahajan, Adv.
DispositionApplication dismissed
Cases ReferredChandrika v. Bex
Excerpt:
.....10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted..........to take advantage of the fact that another judge of this court discharged the rule issued by the learned judge who dismissed the petitioner's revision petition against the acquittal of his two co-accused for the purpose of trying to procure a re-hearing of his own case, which incidentally was not mentioned or discussed at all in the judgment of chopra j.6. no case cited by the learned counsel for the petitioner regarding section 561-a, cr. p. c., had any direct bearing on the present matter. the nearest approach was the decision in chandrika v. bex, air 1949 all 176 (a), in which seth j. ordered the re-hearing of the criminal appeal on a petition under section 561-a. in that case the counsel for the petitioner, who perhaps came from outside allahabad, had obtained an actual date for.....
Judgment:

D. Falshaw, J.

1. This is a somewhat usual application filed under Section 561A of the Criminal Procedure Code by Hoshiar Singh in the following circumstances. As a result of a report officially lodged with the police on behalf of the Punjab University the petitioner was prosecuted along with two other persons, one being Mulk Raj a former clerk employed by the Punjab University, and the other being Vishnu Dutt, the head of the institution known as Gandhi Mahavidayala at Rohtak at which Hoshiar Singh was a student.

Briefly the basis of the case was that Hoshiar Singh had used a forged result intimation card of the Punjab University for the purpose of obtaining a B. A., degree, and he was charged on this account under Section 465/471, I. P. C. Mulkh Raj was charged with the offence of forging the document in question and Vishnu Dutta was charged with abetment of the offence of forgery.

2. The investigation and trial apparently took a long time and the case was only decided in March 1956 by a Magistrate at Delhi, who convicted the petitioner and sentenced him to two years' rigorous imprisonment, but acquitted the other two accused on the ground that the offences alleged against them were not conclusively established, although according to the petitioner, there were other cases of the similar nature pending against them in other courts.

3. The petitioner appealed but the only result of his appeal which was decided by an Additional Sessions Judge at Delhi, was that his sentence was reduced to nine months' Rule 1. The petitioner then filed a revision petition in the High Court which came before Kapur J. on the 28th of May 1956. After hearing the petitioner Kapur J. summarily dismissed his revision petition, and at the same time ordered notice to be issued to the two accused who had been acquitted by the trial Court to show cause why the order for their acquittal should not be set aside.

The case arising out of this order was heard by Chopra J. on the 2nd of April, 1957 when he discharged the rule, holding that although the document in question may have been forged there was no conclusive proof that Mulkh Raj was the forger. He also held that since the prosecution had failed to prove the principal offence of forgery against Mulkh Raj the charge of abetment against Vishnu Dutta must ipso facto fail.

4. On the strength of this decision the petitioner now seeks to have his own case reopened and re-heard under Section 561-A of the Code.

5. All that is provided by Section 561-A is that nothing in the 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.

It seems to me that the intention of this section is to enable the High Court to pass orders not otherwise specifically provided for in the Code for the purpose of securing the ends of justice, and in my opinion it cannot possibly be used for the purpose of reopening a case finally and legally decided by the High Court itself whether in exercise of its appellate or revisional powers.

In the present case if the petitioner considered that the dismissal of his revision petition by Kapur J. was wrong it was open to him to take steps to get the order set aside by way of appeal to the Supreme Court, which apparently he did not do. He cannot now possibly be allowed to take advantage of the fact that another Judge of this Court discharged the rule issued by the learned Judge who dismissed the petitioner's revision petition against the acquittal of his two co-accused for the purpose of trying to procure a re-hearing of his own case, which incidentally was not mentioned or discussed at all in the judgment of Chopra J.

6. No case cited by the learned counsel for the petitioner regarding Section 561-A, Cr. P. C., had any direct bearing on the present matter. The nearest approach was the decision in Chandrika v. Bex, AIR 1949 All 176 (A), in which Seth J. ordered the re-hearing of the criminal appeal on a petition under Section 561-A. In that case the counsel for the petitioner, who perhaps came from outside Allahabad, had obtained an actual date for the hearing of the petitioner's appeal but through some mistake in the High Court office the case was fixed in the list and came up for hearing ten days before the date in question and it was dismissed in the absence of the petitioner's counsel. I do not gather from the judgment that it was summarily dismissed in default and I presume it was treated as a Jail appeal and dismissed after the case had been studied with the assistance of the State counsel. The learned Judge seems to have been of the view that the dismissal of the appeal in these circumstances was an abuse of the process of the court and so was covered by Section 151-A, but with due respect I consider that this is not a correct view nor do I agree with the manner in which the learned Judge has tried to get over the effect of Section 369 of the Code which provides --

'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 established by Royal Charter, by the Letters Patent of such High Court, no Court, when it has signed its judgment, shall alter or review the same, except to correct a clerical error.'

The learned Judge did not consider that re-hearing of the case on the ground that the appellant had not been represented and heard did not amount to reviewing the judgment. In my opinion the present application is not even remotely covered by the provisions of Section 561-A of the Code and I accordingly dismiss it. The learned counsel for the petitioner has made an oral request for the grant of certificate that the case is a fit one for appeal to the Supreme Court. I reject his application.


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