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Sohan Lal Vs. State of Punjab - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Judge
Reported in1983CriLJ175
AppellantSohan Lal
RespondentState of Punjab
Cases ReferredSwarth Mahto v. Dharmdeo Narain Singh
Excerpt:
.....5 (2) of the prevention of corruption act and section 161 of the penal code was dismissed by this court on july 30, 1982, in the absence of his counsel and the state counsel as well. , as well. the appellant as well as his counsel had sufficient notice of the hearing of his case and consequently there is no case for the review of the judgment dated july 30, 1982, whereby the appeal was dismissed after discussing the merits of the case......without jurisdiction or in default of appearance without an adjudication on the merits or without notice of hearing to the parties it could be reviewed. the learned counsel again emphasises that he had no notice of the hearing of his case by me. i am of the view that when the case was listed for hearing simultaneously before two benches if the counsel had not been negligent he could have by a perusal of the list come to know of this fact that the case was to be heard by me. it is not a case of 'no notice' but it can be said to be a case of a 'double notice'. the perusal of the lists of both the benches could have revealed the mistake about which the learned counsel could have obtained a clarification from the registrar. the office has owned the responsibility about the mistake committed.....
Judgment:
ORDER

C.S. Tiwana, J.

1. This is an application under Section 482 of the Criminal P. C on behalf of Sohan Lal whose appeal against his conviction of the offences under Section 5 (2) of the Prevention of Corruption Act and Section 161 of the Penal Code was dismissed by this Court on July 30, 1982, in the absence of his counsel and the State counsel as well. It has been prayed that the order dismissing the appeal should be recalled and the case should be re-heard. The dismissal by this Court was ordered on merits by a perusal of the whole of the relevant evidence.

2. The appeal in question is No. 330-SB of 1980. It had previously been fixed for final hearing before K. S. Tiwana J. for all the period from April 19, 1932 to July 19, 1982. It had only come down from No. 9 to No. 5 in the list, as K. S. Tiwana J., was for all this period sitting in a Division Bench, The need for a Single Bench list was only for supplying some work to his Lordship if on any day the Division Bench was to break. The case was again on the list of his Lordship for the fortnight from July 26, 1982 to Aug. 6, 1982. It had even been shown on the daily list for Aug. 2, and Aug. 3, 1982. Then it was mentioned in the list for August 4, 1982, that it had already been decided by this Court on July 30, 1982. It so happened that the case had also remained on the list pertaining to my Bench for the period from July 26, 1982, to August 6, 1982, and in this manner it having been taken up on July 30, 1982, was decided on that date.

3. The real point for determination is whether the petitioner had a sufficient notice about the hearing of his case by me on the date it was decided.

4. It has been held in State of Orissa v. Ram Chandra Agarwala : 1979CriLJ33 , that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment, as there is no provision in the Criminal P. C. which would enable the High Court to review the same or to exercise revisional jurisdiction. There is a specific prohibition in Section 362 of the Code that after any court has signed its judgment or final order disposing of a case, it shall not alter or review the same except to correct a clerical or arithmetical error. It wag further laid down in Ram Chander Agrawala's case that the provisions of Section 561-A of the old Code corresponding to Section 482 of the new Code cannot be invoked for the exercise of a power which is specifically prohibited by the Code. The whole matter was recently discussed by a Full Bench of our own High Court in Ajit Singh v. State of Punjab 1982 Chand LB (Cri) 363 : 1982 Cri LJ 1215. There was an order of this Court that the un-expired portion of a sentence was to he converted into a fine of Rs. 1,000/-. The fine was directed to be deposited within four months from the date of judgment. It had then been provided that in the event of non-compliance of that condition the appellants shall surrender and undergo the remaining portion of their substantive sentence. Subsequently, they wanted more time for the payment of the fine but it was held by this Court that in the face of the provisions contained in Section 362 of the Code no alteration in the judgment was possible.

5. There is an authority reported as Chandrabali v. State 1979 Cri LJ 1218 (Allahabad High Court, Lucknow Bench) which is very much relevant. An appeal against conviction was dismissed on account of the accused and his counsel being absent. It was laid down that in such circumstances a final order could be deemed to have been passed within the meaning of Section 362 of the Code. No review was said to be possible.

6. Learned Counsel for the petitioner has urged that on account of a mistake of the office in preparing the list he had been misled into believing that the case was to be heard by K. S. Tiwana J., and not by me. He has at first relied upon Shyam Bihari v. State of Madhya Pradesh 1973 Cri LJ 1673 (Madh Pra). It was laid down in that case that there were some exceptions to the rule about the absence of review. According to that authority, where the earlier decision was without jurisdiction or in default of appearance without an adjudication on the merits or without notice of hearing to the parties it could be reviewed. The learned Counsel again emphasises that he had no notice of the hearing of his case by me. I am of the view that when the case was listed for hearing simultaneously before two Benches if the counsel had not been negligent he could have by a perusal of the list come to know of this fact that the case was to be heard by me. It is not a case of 'no notice' but it can be said to be a case of a 'double notice'. The perusal of the lists of both the Benches could have revealed the mistake about which the learned Counsel could have obtained a clarification from the Registrar. The office has owned the responsibility about the mistake committed in showing the case on the list of K. S. Tiwana J., as well. According to it, as soon as the mistake came to its notice a clarification was made in the cause list of August 4. 1982.

7. According to the learned Counsel for the petitioner, his case could be said to be covered by Swarth Mahto v. Dharmdeo Narain Singh 1972 Cri App R 156 : 1972 Cri LJ 879 (SC). There was an appeal before the Patna High Court against the acquittal of two persons of an offence under Section 420 of the Penal Code. In the cause list before the High Court only the number of the case was mentioned but the names of the respondents, and the name of the advocate were missing. The High Court hearing the appeal in the absence of the respondents allowed it and convicted the respondents of the offence under Section 420 of the Penal Code. It was then held by the Supreme Court that the mere showing of the number of the appeal in the list did not give a sufficient notice to the lawyer for appearance. According to the Supreme Court when an advocate examines the cause list he is generally guided not by the number of the case but by his name appearing against the case. Under these circumstances, it was held that there was no proper hearing of the appeal and thus the order of conviction and sentence recorded by the High Court was set aside. The High Court was directed to hear the appeal afresh after issuing necessary notice to the parties. The ratio of this authority, t0 my mind, does not apply to the case at all. The name of the lawyer and the name of the appellant were very much there in both the lists fixed for final hearing simultaneously before two Benches. The appellant as well as his counsel had sufficient notice of the hearing of his case and consequently there is no case for the review of the judgment dated July 30, 1982, whereby the appeal was dismissed after discussing the merits of the case. The application consequently stands dismissed.


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