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Ajit Singh and anr. Vs. State of Punjab - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1982CriLJ1215
AppellantAjit Singh and anr.
RespondentState of Punjab
Cases ReferredVed Prakash v. State of Haryana
Excerpt:
.....as the apex court of criminal jurisdiction and being a court of record had the ultimate power to review and recall its own orders in exceptional cases. would reveal that this section is intended to apply to all courts, the provisions being 'no court when it has signed its judgment shall alter or review the same'.no court' would include 'all courts'.equally as regards the reliance on the other provisions of the code like sections 424 and 430 when read in conjunction with section 369 it was held as follows (para 18): on a careful reading of sections 369 and 424 and 430, we are satisfied that section 369 is general in its application. it seems to have been assumed that such an application was maintainable on the authority of rattan lai's case supra, this case is, therefore,..........determination in this reference to the full bench are:(1) whether the high court has no power to review or alter its earlier judgment (except to correct clerical errors) rendered within the criminal jurisdiction?(2) whether any alteration or modification of the sentence alone (without touching the merits or the section under which the conviction is recorded) would amount to a review in the eye of law?2. equally at issue is the connected question whether the view expressed by the division bench in lai singh, v. state , can still hold the field in ;the wake of the recent judgment in stale of orissa v. ram chander agarwala : 1979crilj33 ).3. the two petitioners were brought to trial on the charge of attempted murder before the additional sessions judge, amritsar. the learned judge,.....
Judgment:

S.S. Sandhawalia, C.J.

1. The two meaningful questions which in essence fall for determination in this reference to the Full Bench are:

(1) Whether the High Court has no power to review or alter its earlier judgment (except to correct clerical errors) rendered within the criminal jurisdiction?

(2) Whether any alteration or modification of the sentence alone (without touching the merits or the section under which the conviction is recorded) would amount to a review in the eye of law?

2. Equally at issue is the connected question whether the view expressed by the Division Bench in Lai Singh, v. State , can still hold the field in ;the wake of the recent judgment in Stale of Orissa v. Ram Chander Agarwala : 1979CriLJ33 ).

3. The two petitioners were brought to trial on the charge of attempted murder before the Additional Sessions Judge, Amritsar. The learned Judge, however, acquitted them of that charge but held A jit Singh, petitioner guilty substantively Under Section 326, Penal Code, and Charan Singh Petitioner Under Section 326 read with Section 34, Penal Code, and imposed sentences of two years' rigorous imprisonment and fine of Rs. 100 and one year's rigorous imprisonment and fine of Rs. 50 respectively, They appealed, and the matter came up before my learned brother Tewatia, J., silting singly. While upholding their conviction, the sentence imposed was altered in the following terms:

Accordingly, instead of sending back the two appellants who are on bail, to jail, the unexpired portion of their sentence is converted into a fine of Rs. 1,000 each, in addition to the fine already imposed by the trial Court, The entire fine is directed to be deposited within four months from today. In the event of non-compliance of this condition the appellants shall surrender and undergo the remaining portion of their substantive sentences. However, in the event of the realisation of the fine, half of the same shall be. made over to Makhan Singh injured, who shall be intimated about t his right to receive the part of the fine 'by the trial Court where the same is to be deposited. The appeal stands disposed of accordingly.

4. It would appear that both the petitioners failed to deposit the fine within the time prescribed. The present application Under Section 482 of Criminal P. C. was then moved on their behalf praying that the petitioners may now be allowed to deposit the fine and the failure to do so within prescribed time be condoned. Noticing some discordance of judicial opinion on the point whether a relief of this nature could be allowed, my learned brother Tewatia, J. referred the matter to a larger Bench. When the case came up before the Division Bench, reliance on behalf of the petitioners was placed on Lai Singh case 1970 Cri LJ 267)(Punj & Har)(supra) whilst on > behalf of the respondent-State it was contended that the ratio was no longer tenable in view at the observations of their Lordships jn Ram Chander Agarwala's case fl 979 Cri LJ 33)(SC)(supra). The present reference to the larger Bench was thus necessitated.

5. At the very outset it must be noticed that we are inclined to take the view that the two questions before us are now concluded by binding precedent. It would, therefore, be wasteful to examine the issue in principle and in fact within this jurisdiction one would be virtually precluded from doing so. Consequently it suffices to briefly indicate that the dictum of their Lordships in Ram Chander Agarwala's case 1979 Cri LJ 33)(SC)(supra) on a patently analogous issue now completely covers this field as well.

6. That two views were perhaps earlier possible and equally there might have been much to be said for the other side as well is manifest from the exhaustive judgment of the Division Bench, in Lai Singh's case 1970 Cri LJ 267)(Punj & Har)(supra) to which I was a party. Therein the virtually identical question pointedly raised with regard to the revisional jurisdiction of the High Court was formulated in the following terms (para 1 :

Is this High Court empowered to revoke, review, recall or alter its own earlier decision in a criminal revision and rehear the same?

The Division Bench after an elaborate discussion both on principle and precedent had rendered an answer to the aforesaid question in the affirmative by holding that at least so far as the revisional jurisdiction was concerned the High Court as the apex Court of criminal jurisdiction and being a Court of record had the ultimate power to review and recall its own orders in exceptional cases. However, we cannot but conclude now that this view can no longer hold the field in the face of the categoric enunciation of the law in Ram Chander Agarwala's case .1979 Cri LJ 33)(SC)(supra,

7. An analysis of the judgment in Lai Singh's case 1070 Cri LJ 267)(Punj & Har) would show that the four postulates which underlie its ratio were:

(i) that the provisions of Section 369 of Criminal P. C. 1898 were applicable only to the trial Court and the original jurisdiction and did not encompass within it the appellate and the revisional jurisdictions of the High Court;

(ii) that the provisions of Sections 369, 424 and 430 of the old Code were indicative of the fact that a review at least within the revisional jurisdiction was not barred;

(iii) that in any case the inherent powers of the High Court Under Section 561A could equally be invoked in this context to remedy any grave injustice;

(iv) that the observations of S. R. Das, J., in U. J. S. Chopra's case : 1955CriLJ1410 were authoritative and binding.

Now a close perusal of the judgment in Ram Chander Agarwala's case 1'979 Cri LJ 33)(SC) would show that all the aforesaid premises' came up for consideration directly or indirectly before their Lordships in the said case. Therein with regard to Section 369 it has been categorically laid down as follows (para 18 :

A reading of Section 369 of Criminal P. C. would reveal that this section is intended to apply to all Courts, the provisions being 'no court when it has signed its judgment shall alter or review the same'. 'No Court' would include 'all courts'.

Equally as regards the reliance on the other provisions of the Code like Sections 424 and 430 when read in conjunction with Section 369 it was held as follows (para 18): '**. On a careful reading of Sections 369 and 424 and 430, we are satisfied that Section 369 is general in its application. The word 'no court' would include all courts and apply in respect of all judgments. Section 424 is confined, in its application, only to the mode of delivery of judgment, the language of the judgment, the contents of judgment etc., and Section 430 of Criminal P. C. to the finality of judgments on appeal, except as provided for. Whether the judgment is by the trial court or the appellate court, Section 369 is universal in its application and when once a judgment is signed, it shall not be altered or reviewed except for correcting a clerical error.'

Reliance on the inherent powers of the High Court Under Section 561A was also excluded in this context by the following observations in para 17 of the report:

If Section 369 of Criminal P. C. is understood as applying to judgments on appeal by the High Court. S- 561-A cannot be invoked for enabling the Court to review its own order which is specifically prohibited by Section 369 by providing that, no court when it has signed its judgment, shall alter or review the same except to correct a clerical error.

Again it was held that the observations of S. R. Das, J., in U. J. S. Chopra's case 1955 Cri LJ 1410)(SC) were a minority view which consequently had no sanctity (para 19 of 1'979 Cri LJ :

As the majority judgment does not share the view expressed by DasJ,, quoted above reliance cannot be placed on the view of Das J. The view expressed by Privy Council in Jai Ram Das's case AIR 1945 PC 94 : 1945(46) Cri LJ 662, that alteration by the High Court of its judgment is prohibited by Section 369 of the Code was not brought to the notice of Das J. Later decisions of this Court, particularly the decision in Supdt. and Remembrancer of Legal Affairs, W, B, v. Mohan Singh : 1975CriLJ812 , held that when once the judgment has been pronounced by the High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained.' Lastly it was concluded as follows (Para 21):In the result we accept the contention put forward by Mr. Mukherjee for the State and hold that High Court has no power to revise its own order. The appeal is allowed.

From the aforesaid authoritative enunciation of the law it seems to be more than manifest that both with regard to the appellate and the revisional jurisdiction of the High Court there is no power to review or revise its earlier judgment, except to correct clerical errors. In face of the all pervading dictum there is no option but to hold that Lai Singh's case 1970 Cri LJ 267)(Punj & Har)(supra) can no longer hold the field and is hereby overruled. Consequently the answer to the first question has to be rendered in the affirmative and it is held that the High Court has no power to review or alter its earlier judgment within the criminal jurisdiction except to correct clerical errors.

7-A. Coming now to the second question it again appears that Ram Chander Agarwala's case 1979 Cri LJ 33)(SC) equally covers the question even a mere alteration of the sentence would amount to review. Therein the High Court of Orissa whilst maintaining the conviction on merits Under Section 20(e) of the Forward Contracts (Regulation) Act, 1952, rendered in its earlier judgment had merely converted the substantively sentence of imprisonment into one of' fine. Their Lordships of the Supreme Court whilst holding that this amounted to a review, which had been held to be barred, reversed the judgment of the High Court. Consequently within this narrow field it is no longer tenable to say that merely an alteration or modification in the sentence alone does not amount to a review in the eye of law. The answer to the second question is also rendered in the affirmative.

8. In fairness to the learned Counsel for the petitioner we must notice his vehement reliance on Rattan Lai v. State of Punjab : 1965CriLJ360 . It was pointed out that therein by majority, their Lordships had set aside the order of the High Court in revision and directed it to make an order Under Section 6 of the Probation of Offenders Act, 1958, or if it so desired to remand it to Sessions Court for doing so. A close analysis of the judgment in Rattan Lai's case supra) would show that it has little or no relevance to the issue before us. Therein Rattan Lai appellant had been convicted by the trial Court on the 31st of May, 1962, prior to the application of the Probation of Offenders Act to the District of Gurgaon which was extended thereto on 1st Sept. 1962. The appeal before the Court of Session was dismissed on 22nd Sept. 1932. but the attention of the appellate Court was,not drawn to the provisions of the Act. Later the revision was also dismissed by the High Court on 27th Sept. 1962 without reference to the said Act. In this context the primary and indeed the solitary question before their Lordships of the Supreme Court was whether the appellate or the revisional Court could make an order under the Probation of Offenders Act in cases in which the trial Court on the date of conviction could not have made an order thereunder. It was in this context that the retrospective operation of an ex post facto law was considered and it was held that in exercise of powers under Section 11 of the Act the appellate Court or the High Court in revision could make an order under 0. 6. It is thus plain that the question whether any review of its own order is possible by the High Court or what would actually amount to review was not even remotely before their Lordships in Rattan Lai's case 1965(1) Cri LJ 360)(SC). We are firmly of the view that Rattan Lai's case is no warrant for the proposition that the High Court has the power to review or revise its own earlier Judgment.

8-A. Reliance was then placed on the Division Bench judgment in Shamsher v. State of Haryana, 1975 Chand LR (Cri) 57 wherein an application for extending the benefits of the Probation of Offenders Act to the petitioner; whose appeal had already been disposed of, was allowed. A reference to the judgment makes it patent that the question whether this would amount to a review was not even remotely raised and consequently was not at all adjudicated upon. It seems to have been assumed that such an application was maintainable on the authority of Rattan Lai's case supra, This case is, therefore, distinguishable but if the mere fact of allowing of such application is to be construed as a warrant for assuming a power of review then the same is no longer a good law and the judgment has to be overruled on thi specific point. For the identical reasons the single Bench judgment in Prem Singh v. The State of Punjab, 1980 Chand LR (Cri) 234 which relied on Shamsher Singh's case has to be overruled.

9. Reference also must be made to Ved Prakash v. State of Haryana, (1969) 71 Pun LR (SN) 43. Therein the learned single Judge seems to have taken the view that Section 561-A of the Code empowers the High Court to review or alter its earlier judgment in order to give the benefit of the Probation of Offenders Act to an accused person. On this assumption it was concluded therein as follows:.I would allow this petition, and in exercise of my powers Under Section 4 of the Act read with Section 561-A of the Criminal P. C, in modification of my order, dated 26-3-1969, direct that the petitioner be released on his entering into a bond with two sureties in the sum of Rs. 10,000/-each to appear and receive the sentence for the aforesaid offences for which he has been convicted, when called upon during such period, and in the meantime to keep the peace and be of good behaviour.

It would be plain that invoking the inherent powers Under Section 561-A of the Code is now in head-long conflict with the ratio in Ram Chander Agarwala's case 1979 Cri LJ 33)(SC)(supra) and on this specific point the law has not been correctly laid down in this Court and has to be overruled.

10. Repelled on this basic legal stand, the learned Counsel for the petitioner had then faintly attempted to contend that the relief of the extension of time for the deposit of fine at least would not amount to a review or alteration of the original judgment. In this context it deserves to be recalled that the appellate order whilst granting conditional relief had clearly directed that in the event of non-compliance of this condition the appellants would surrender and undergo the remaining portions of their substantive sentences. On the failure to comply with the condition of the payment of fine within four months the status quo ante would thus be restored and the substantive sentences of imprisonment would be resuscitated. Consequently the allowance of the application would involve a clear review of the earlier judgment on the point of sentence and setting aside the same the payment of fine would have to be substituted. This, as already noticed, would be clearly barred by the direct ratio in Ram Chander Agarwala'a case 1979 Cri LJ 33)(SC)(supra).

11. In the light of the aforesaid discussion and the answer to the two legal questions, Criminal Miscellaneous Application is plainly without merit and is hereby dismissed.

D.S. Tewatia, J.

12. I agree.

K.S. Tiwana, J.

13. I agree.


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