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State Vs. Kunjan Pillai Aiyappan Pillai - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1952CriLJ930
AppellantState
RespondentKunjan Pillai Aiyappan Pillai
Cases ReferredC.P. & Berar v. Krishna Gopala
Excerpt:
- - 2. in this petition it is contended on behalf of the state that the high court had no jurisdiction to keep the accused in the custody of his relatives and that the court was bound under section 384, criminal procedure code to detain him under safe custody in such place and manner as, the court thought fit. it is argued that keeping the accused in the custody of his relatives is not the same thing as detaining him in safe custody. krishna gopal air 1945 nag 77 that after the amendment it is the duty of the court to detain the accused in safe custody and that detention is not the same thing as entrustment to the care of relations. conicheriathu 20 tlj 378. in that case it was held that the remedy by way of review in a criminal case by the exercise of the inherent powers of the high.....joseph vithayathil, j.1. the question raised in this petition relates to the jurisdiction of the high court to review or alter its judgment in a criminal case. the petition is filed by the state under section 470 of the travancore code of criminal procedure to modify the direction in the judgment in referred trial no. 20 of 1123 and criminal appeal no. 136 of 1123 on the file of the erstwhile travancore high court. the judgment in that case was by a bench of that court consisting of sankarasubbier & habeeb mohammed, jj. the accused was convicted by the sessions court of parur of offences punishable under sections 301, 326 and 324, t.p.c., for murdering his wife's brother and for causing grievous hurt to his wife and simple hurt to another brother of his wife, and was sentenced to rigorous.....
Judgment:

Joseph Vithayathil, J.

1. The question raised in this petition relates to the jurisdiction of the High Court to review or alter its judgment in a criminal case. The Petition is filed by the State under Section 470 of the Travancore Code of Criminal procedure to modify the direction in the judgment in Referred Trial No. 20 of 1123 and Criminal Appeal No. 136 of 1123 on the file of the erstwhile Travancore High Court. The judgment in that case was by a Bench of that Court consisting of Sankarasubbier & Habeeb Mohammed, JJ. The accused was convicted by the Sessions Court of Parur of offences punishable under Sections 301, 326 and 324, T.P.C., for murdering his wife's brother and for causing grievous hurt to his wife and simple hurt to another brother of his wife, and was sentenced to rigorous imprisonment for life for the offence under Section 301, rigorous imprisonment for one year for the offence under Section 326 and rigorous imprisonment for 3 months for the offence under Section 324, the sentences being directed to run concurrently.

The High Court, while upholding the finding of the Sessions Judge that the accused committed the acts attributed to him, accepted the defence plea of insanity and set aside the conviction and sentence entered by the Sessions Judge and made the following direction under Section 384 of the Travancore Code of Criminal procedure:

We allow the appellant to be detained in the custody of the relatives under whose care he has already been entrusted by order dated 22.11.1123 on Criminal M.P. No. 479 of 1123, the said relations undertaking to produce the appellant whenever they are called upon to do so by Government. A report as contemplated by Section 384, Criminal P.C. that the appellant is entrusted to the care of his relatives will be sent up to Government and it is for the Government to decide whether the appellant has to be left in the custody of his relations or to be detained in any Asylum as contemplated by the Lunacy Act. We, however, recommend to Government that this is a fit case in which the accused may be allowed to continue under the custody and care of his relations. The appeal is thus allowed. The Referred Trial is disposed of by refusing to confirm the sentence of rigorous imprisonment for life passed by the lower Court The appellant will be handed over to the custody of two of his relatives on their executing a bond each for Rs. 1,000 to the satisfaction of the Registrar, High Court, undertaking to produce the appellant whenever called upon to do so by Government.

Accordingly two relatives of the accused executed a bond undertaking to produce him whenever called upon to do so by Government and he was entrusted to their care. A report to that fact1 was also sent to Government.

2. In this petition it is contended on behalf of the State that the High Court had no jurisdiction to keep the accused in the custody of his relatives and that the Court was bound under Section 384, Criminal Procedure Code to detain him under safe custody in such place and manner as, the Court thought fit. It is argued that keeping the accused in the custody of his relatives is not the same thing as detaining him in safe custody. This question was considered by the learned Judges when they made the direction mentioned above. This is what they say in the judgment:

The next question is the further direction we have to give in this case. We have to act under Section 384 of the Criminal Procedure Code. That section says that in such cases the Court shall order such person to be detained in sale custody in such place and manner as the Court thinks fit and shall report the action taken to Government. Before the amendment of the Criminal Procedure Code the corresponding section of the old Code used the word 'kept' while Section 384 of the new Code uses the word 'detained', when the old Code was in force in India the Madras High Court held in A.B. Mahommed v. Emperor AIR 1922 Mad 54 (2) that it was open to the Court to hand over the insane accused to the care of his relations. But it was pointed out in PROVINCIAL GOVT., C.P. & BERAR v. KRISHNA GOPAL AIR 1945 Nag 77 that after the amendment it is the duty of the Court to detain the accused in safe custody and that detention is not the same thing as entrustment to the care of relations.

But relying on the proviso to Section 384 Criminal Procedure Code which says that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as Government may have made under the Travancore Lunacy Act of 1110, and the rules passed by Government under Section 63 of the Lunacy Act the learned Judges made the direction mentioned above. Rule 7 provides that when passing a detention order the Court may allow the lunatic to be detained in the custody of a relation or guardian on such condition as the Court may deem fit. The learned Judges therefore held that it was open to the Court when passing a detention order to allow the accused to be kept in the custody of a relative or guardian pending orders from Government and that It was not incumbent upon the Court to direct the detention of the accused in a lunatic asylum.

3. It is argued on behalf of the State that the learned Judges omitted to note that the proviso to Section 384 applies only when the Court orders the detention of the accused in a lunatic asylum and that it does not empower the Court to entrust the accused to the care of his relatives. The proviso reads thus:

Provided that no order for the detention of the accused in a lunatic asylum shall be made otherwise than in accordance with such rules as our Government! may have made under the Travancore. Lunacy Act, 1110.

The words 'in a lunatic asylum' were omitted when the proviso was extracted in the judgment. This according to the learned Public Prosecutor is a mistake committed by the Court as a result of misreading the proviso. He, therefore prays that the direction in the Judgment may be' modified so as to bring into conformity with the proviso to Section 384 of the Code of Criminal Procedure.

4. When the petition came before a Bench consisting of Habeeb Mohammad and Mathew Muricken, JJ., a preliminary objection was raised on behalf of the accused that the Court has no jurisdiction to alter or review its judgment in a criminal case. The question being an important one the learned Judges referred the petition to a Full Bench.

5. The two sections of the Travancore Code of Criminal Procedure which have to be considered when deciding the question raised in this reference are Sections 305 and 470 corresponding to Sections 369 and 561(A) respectively of the Indian Code. Section 305 reads thus:

Save as otherwise provided by this Code or by any other law for the time being in force no Court, when it has signed its judgment, shall alter or review the same except to correct a clerical error.

Section 470 reads thus:

Nothing in this 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 is not disputed that Section 305 applies to the High Court also. The question therefore for consideration is whether in the light of the express provision in that Section (Section 305) that no Court shall, when it has signed its judgment, alter or review the same except to correct a clerical error, the High Court can alter or review its judgment. The argument advanced on behalf of the petitioner is that Section 305 must be read subject to Section 470. The argument is based on the use of the words 'save as otherwise provided by this Code' in Section 305 and the words 'nothing in this Code shall be deemed to limit or affect the inherent power of the High Court' in Section 470. But Section 470 does not confer any new power on the High Court. It only reserves the power which the High Court possessed even before the section was enacted. This is what Lord Peter says in Emperor v. Nazir Ahed AIR 1945 PC 18.

It has sometimes been thought that Section 561-A has given increased powers to the Court which it did not possess before that section was enacted. But this is not so. The section gives no new powers it only provides that those which the Courts already inherently possess shall be preserved and is inserted, as their Lordships think, lest it should be considered that the only powers possessed by the Court are those expressly conferred by the Criminal Procedure Code, and that no inherent power had survived the passing of that Act.

To the same effect is the observation of Lord Russel of Killowen in Jairam Das v. Emperor AIR 1945 PC 94. His Lordship observes thus:

Section 561-A of the Code confers no powers. Ct merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice.

6. If the High Courts had no power before the enactment of Section 470 of the Travancore Code to review or alter its judgment such power has not been conferred on the High Court by that section. The words 'save or otherwise provided by this Code' in Section 305 cannot have reference to Section 470. These words refer to the express provisions of the Code which empowers the Court to alter or review its judgment in certain specified cases. They are Sections 326 (Sentence of whipping which cannot be executed), 359 (Further Enquiry by the District Magistrate), 395 (Sentence for contempt when an apology has been accepted) and 400 (Variation of orders for maintenance). Except in special cases expressly provided for in the Code or by any other law in force Section 305 absolutely prohibits the High Court from altering or reviewing its judgment unless it be for correcting a clerical error. At the same time Section 470 declares that nothing in the Code shall be deemed to limit or affect the inherent power which the High Court possessed at all times to make such orders as will be necessary to give effect to any order passed under the Code or to prevent abuse of the process of Court or otherwise to secure the ends of justice.

The question therefore resolves itself into one of considering whether apart from the provisions of the Code and in spite of Section 305 the High Court possesses an inherent power to alter or review its judgment for the purpose of giving effect to any order or to prevent an abuse of the process of Count or otherwise to secure the ends of justice. We shall consider the views of the various High Courts in India on this question.

7. So far as the Travancore High Court is concerned the earliest case in which the question was considered is Mathu Kora v. Padmanabham Kunju Kunju 15 TLJ 85. In that case the accused was convicted by the Sub-Magistrate. Appeal from that conviction was filed in the District Magistrate's Court, but it was transferred by an order of the High Court to the file of the Sessions Court, and the appeal was decided by that Court. Prom this decision a revision was filed in the High Court and the High Court in ignorance of its own order transferring the appeal to the Sessions Court set aside the decision of that Court on the ground that the appeal lay to the District Magistrate and that the Sessions Judge had no jurisdiction to hear the appeal, and directed the appeal to be presented before the proper Court.

A petition was filed in the High Court to vacate this order. The Criminal Procedure Code that was in force at the time was the Code of 1067. Section 275 of that Code corresponds to Section 305 of the present Code. But there was no provision in that Code corresponding to Section 470 of the present Code. The High Court held that it had inherent power to review Us judgment for rectifying a mistake and for preventing an abuse of the process of Court. This view was taken mainly on the basis of the observations of Mookerji, J. in Pulin Behari Das v. Empror 15 Cal LJ 517; Budhu Lal v. Chattu Gope 44 Cal 816 and Pigot v. Ali Muhammad Mandal 48 Cal 522.

In the first of those cases Mookerji, j., observed thus:

Criminal Courts, no less than Civil Courts, exist for the administration of justice, and Courts of both descriptions have inherent power to mould the procedure, subject to the statutory provisions applicable to the matter in hand, to enable them to discharge their functions as Courts of Justice.

In the 2nd case the learned Judge explained the position thus:

I am not unaware that the Criminal procedure Code does not contain a provision corresponding to Section 151 of the Civil Procedure Code; but that section does not lay down any new principle, it merely embodies a legislative recognition of the inherent power of the Court to mate such orders as may be necessary for the ends of justice. This inherent power is in no sense restricted in application to civil cases; it is equally applicable to criminal matters. This power is not capriciously or arbitrarily exercised. It is exercised 'ex debito justitia', to do that real and substantial justice for the administration of which alone Courts exist; but the Court in the exercise or such inherent power must be careful to see that its decision is based on sound general principles and is not in conflict with them or with the intention of the legislature as indicated in statutory provisions.

In the third case also the learned Judge exhaustively dealt with the question of inherent power of the Court and laid special emphasis on the following observations of Lord Cairns in Rodger v. Comptoir D'Escompte DE PARIS (1877) 3 PC 465:

One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any suitors, and when the expression 'the act of the Court' is used it does not mean merely the act of the primary Court, or any intermediate Court of appeal but the act of the Court as a whole from the lowest Court which entertains jurisdiction over the matter up to the highest Court. which finally disposes of the case.

It has to be noted that tine questions that arose for consideration in these three cases did not relate to the power of the High Court to alter or review its own judgment. The question related to the power of the High Court to pass such orders as are necessary to secure the ends of justice. It has also to be noted that Section 369 of the Indian Code of Criminal Procedure as it stood when these cases were decided expressly excluded the High Court from its purview. The section reads thus:

The Court other than the High Court when it has signed its judgment, shall alter or review the same except as provided under Sections 395 and 484 or to correct a clerical error.

It was by the amendment of 1923 that the High Court also was brought within the scope of the section, except in the case of powers conferred by Letters Patent. Section 561-A was also inserted in the Code only in 1923.

8. Reference is made in Mathu Kora v. Padmanabham Kunju Kunju 15 TLJ 85, to an early decision of the Calcutta High Court by a Full Bench of five Judges, namely, In the matter of Gibbons 14 Cal 42, in which it was held that the High Court has no power to alter or review its judgment. But that decision was not followed by the learned Judges who preferred to decide the question on the basis of the observations of Mookerji, J., referred to above.

9. Mathu Kora. v. Padmanabham 15 TLJ 85 was followed in Kesave Pillai v. Sirkar 15 TLJ 624 In that case it was held that the High Court has inherent power in criminal cases to make any order that is necessary to secure the ends of justice. That was, however, not a case in which the High Court altered or reviewed its judgment, it was a case in which the High Court expunged certain remarks in the judgment of the Sessions Court. The next decision of the Travancore High Court dealing with the question is reported in Chandi v. Conicheriathu 20 TLJ 378. In that case it was held that the

remedy by way of review in a criminal case by the exercise of the inherent powers of the High Court is a very extraordinary remedy to be used only in extreme cases like the case reported in Mathu Kora v. Padmanabham 15 TLJ 85, where the refusal to exercise the inherent power would have brought about a deadlock.

10. The question was again considered in Ittycheria v. Sirkar 26 TLJ 373. In that case Chief Justice Abraham Verghese observed thus:

This question raises another point i.e., whether the High Court can revise an order passed by a Division Bench thereof. Certain High Courts have held that there is no such power of revision. There is no special provision for that purpose in the Criminal Procedure Code. Certain other High Courts have held that there is inherent power in the High Court to revise its own decision when such case has been disposed of without jurisdiction, and that there is no such power if the order was passed wrongly with jurisdiction. This High Court is one of those which held that opinion. See Mathu Kora v. Padmanabham Kunju Kunju 15 TLJ 85 and Chandi v. Conicheriathu 20 TLJ 378.

The petition for review was placed before the Division Bench which disposed of the case and the judgment of the Division Bench is reported in 26 TLJ 341. The learned Judges followed the decision of the Calcutta High Court in Dahu Raut v. Emperor 61 Cal 155, in which it was held that the High Court has no power to alter or review its judgment, even if passed without jurisdiction except to correct a clerical error. It was also observed by the learned Judges that even applying the principle of the rulings of the Travancore High Court in Mathu Kora v. Padmanabham Kunju Kunju, and Chandy v. Conicheiathu, no exceptional or extraordinary circumstances as contemplated in those decisions existed in the case before them and that the exercise of inherent power by the High Court should not be capricious or arbitrary and should not be in conflict with the intention of the legislature as indicated in statutory provisions.

11. The next case of the Travancore High Court in which the question was discussed is Daninel v. Chacko 29 TLJ 340. In that case a petition to review the judgment passed by the High Court in Criminal revision was admitted by Chatfield, C.J., and Venkata Rao, J. Chatfield, C.J., made the following observation while admitting the review petition:

I would agree with the last mentioned case Chandi v. Conicheriathu 20 TLJ 373 and would hold that there is no general power of review vested in this Court as regards its judgment in criminal cases but that such a jurisdiction may be exercised in exceptional cases to prevent abuse of the process of the Court or otherwise to secure the ends of justice.

The petition was subsequently heard by Sankarasubbier and Madhavan Pillai, JJ. After citing with approval Dahu Raut v. Emperor 61 Cal 155, Sankarasubbier, J., observed thus in his order on the question of the inherent power of the High Court to review its judgment:

The next question for consideration is whether this Court has inherent jurisdiction to review its judgment passed in criminal cases and if so what is the extent of such power. The absence of a provision in the Criminal Procedure Code like Section 115 in the Civil Procedure Code is not by itself an indication that this Court has no inherent power to set right matters in criminal cases though they have been once decided by them. Section 115, Criminal P.C., merely declares that such inherent powers as the Court may have shall not be deemed to be limited or affected by anything mentioned in the Code.

The section therefore assumes that Courts have such inherent powers. In other words the power which a Court must have to meet out that real and substantial justice for the administration of which alone Courts exist is always inherent in a Court. Hence there is no sufficient reason for denying the existence of such inherent! power in criminal matters. At the same time the inherent power cannot be exercised in such a way as to override an express provision of law, like Section 275, Criminal Procedure Code. It is for the above reasons that it was pointed out both in Mathu Kora v. Padmanabham Kunju Kunju 15 TLJ 85 and 20 TLJ 378, that it is only for the purpose of rectifying mistakes and preventing abuse of process that the inherent powers can be invoked. As stated in 20 TLJ 378, the refusal to invoke the inherent power must have the effect of bringing about a deadlock.

Madhavan Pillai, J., was of opinion that the High Court could not call into assistance its inherent power to override the express provision of law contained in Section 275, Criminal Procedure Code (Section 305 of the Code of 1117) and preferred to follow the decision of the Calcutta High Court in Dahu Raut v. Emperor 61 Cal 155. The learned Judge also observed that the decision in Mathu Kora v. Padmanabham Kunju Kunju, should be reconsidered and that even if the dictum in that case should be allowed to stand it should be permitted to operate only in a very extraordinary or extreme case like the case reported in 15 TLJ 85, where the refusal to exercise the inherent power was found to have brought about a deadlock.

12. The next case in which the question was considered by the Travancore High Court is Fernandez v. Feranandez 30 TLJ 117 in which Sankarasubbier, J., dismissed a petition to review his order in a Criminal Revision Petition With the following observation:

It is well settled that a criminal Court has no power of review except to correct a clerical error or to avoid a deadlock which the omission to grant the review will entail.

In Lekshmi Amma v. Lekshmi Amma 1944 TLR 113, Madhavan Pillai, J., reiterated the view expressed by him in DanielL v. Chacko 29 TLJ 340 and observed thus:

I have in Daniel v. Chacko, held, after a review of all existing judicial precedents that Section 275, Criminal Procedure Code (corresponding to Section 305 of the present Code) is comprehensive enough to include within its scope even this Court, so that according to that section, this Court also has no power to alter or review its judgment except as provided therein. I did also doubt in that case, the possibility of this Court calling into assistance the inherent power to override the express provision of law in Section 275, even assuming that inherent power exists in this Court in criminal matters, I see no reason even now to modify the foregoing opinion of mine.

In that case the question that came up for consideration was whether a Subordinate Court has jurisdiction to alter or review its judgment in a criminal case.

In Re CHANDY 1944 TLR 280, Nokes and Madhavan Pillai, JJ., expressed the view that the High Court has no power to alter or review its judgment. After reviewing the decisions of the Indian High Counts and of the Travancore High Court on the question Nokes, J., observed that the decision in Kora v. Kunju 15 TLJ 85, required reconsideration by a Full Bench. Madhavan Pillai, J., also agreed with this view and observed thus:

Having regard to the exact origin of the dictum in MathuKora v. Padmanabham Kunju Kunju the same being found by me to be based solely on the observations of Mookerji J., in Pulin Behari Das v. Emperor 15 Cal LJ 517, the authority of which even in British India has been considerably attenuated by the amendment in 1933 of Section 369 of the British Indian Criminal Procedure Code and by the later Calcutta decision in Dahu Raut v. Emperor 61 Cal 155, it seems to me that the only opinion consistent with Section 275, Criminal Procedure Code (Section 305 new Code) is the one expressed by my brother in his order, viz., that, under the Code of Criminal Procedure there is no power to review a judgment or order in a criminal matter.

In Kalyanikutty Amma v. Surjar 1945 TLR 944, which was cited at the bar the question of the power of the High Court to alter or review its judgment did not arise for consideration. That case related to the power of the High Court under Section 470, Criminal P.C., to interfere in proceedings that are pending in subordinate Courts.

13. It is thus seen, on a review of the decisions of the Travancore High Court relating to the power of the High Court to alter or review its judgment in a criminal case, that the tendency of the later decisions of that Court was to deny the existence of such power in the High Court.

14. We shall now consider the position taken by the other Indian High Courts on the question. A Pull Bench of five Judges of the Calcutta High Court considered the question 'In the matter of Gibbons 14 Cal 42, already referred to. All the five Judges held that the High Court has no power to review or alter its judgment. Potharam, C.J., who wrote the leading judgment observed thus:

Speaking for myself and, indeed, in this matter I think for the whole of the Judges constituting this Bench, I have no doubt whatever that in cases of this kind, no power of review resides in the Court or in my bench of the Court, This is an opinion which I have expressed before in y the High Court at Allahabad Queen Empress v. Durga Charas 7 All 672 and it is an opinion which has been expressed in the High Court at Bombay Queen Empess v. Fox 10 Bom 176 and in opposition to which so far as I know there is no reported case to be found.

His Lordship concludes with the following observation:

The verdict and judgment of a Division Bench of this Court, coupled with the sentence, are, in my opinion, absolutely anal. As soon as they have been pronounced and signed by the Judges, this Court is 'functus officio' and neither the Court itself nor any Bench of it, has any power to revise that decision or interfere with it in any way.

It has to be noted that this case was decided before Section 369 of the Indian Code of Criminal Procedure was amended. The section as it stood then contained the words 'other than a High Court.' Yet their Lordships held that the section applied to the High Court also and that it had no power to review or alter its judgment.

15. The cases in which Mukerji, J., made the observations which are quoted with approval in Mathu Kora v. Padmanabham Kunju Kumju 15 TLJ 85, namely Pulin Behari Das v. Emperor 15 Cal LJ 517; BudhulalL v. Chattu Gope, 44 Cal 816 and Pigot v. Ali Mohammad 48 Cal 522, were not, as stated above, cases in which the question of the power of the High Court to review or alter its judgment came up for consideration. Those cases also were decided before Section 369 of the Indian Code of Criminal Procedure was amended.

16. In Dahu Raut v. Emperor 61 Cal 155, a Division Bench of the Calcutta High Court followed the decision 'in the matter of Gibbons 14 Cal 42 and held that the High Court when it has signed its judgment has no power to alter or review it except to correct a clerical error. Lort-Williams, J., observed thus in that case:

After we had signed the orders we were 'functus officio' and, when we ceased to sit together, the Bench, of which we were members, ceased to exist and could not ever be revived, if one Bench had power to decide that the orders of another bench were made without jurisdiction and were void 'ab initio', a third Bench would have power to decide that the orders of the second Bench also were made without jurisdiction and so on 'ad Infinitum'.

McNair, J., the other learned Judge who took part in that decision observed thus:

With great respect I am entirely in agreement with the view that was expressed by the Lahore High Court in Raju v. The Crown 10 Lah 1, that Section 561(A) in no way adds to the powers of the High Court. It merely declares that such inherent powers as the Court may possess shall not be deemed to be limited or affected by anything contained in the Code. The inherent powers of the Court did not include the power to revise an order which has been made in the Criminal Appellate Jurisdiction. We are, therefore, compelled to look to Section 369 to see whether the power of review is contained in that section.

I have no doubt that the intention of this section is to debar the High Court from reviewing its own Judgment in criminal matters. The only exception which is permitted is in the case of a clerical error. It is essential even in civil matters that there should be finality in the orders of the Court, and in criminal matters it is obvious that such finality is of even greater importance. In my opinion the object of this section is to procure such finality. The provisions of Section 369 were carefully considered by the Pull Bench of this Court in 'In the matter of Gibeons 14 Cal 42, where it was held that no power of review resides in the Court or in any Bench of the Court.

17. So far as the Allahabad High Court is concerned a single Bench of that Court held in Kunji Lal v. Emperor AIR 1935 All 60, that the High Court has no power to alter or review its Judgment in a criminal case. Bennet, J., observed thus in that case:

I am of opinion that review is a definite method of procedure and that if the legislature intended by the Amending Act, Act 18 of 1923, to make a provision in the Code for a review there would have been a definite section dealing with a right of review and laying down the conditions under which that right could be exercised, in the case of Civil Procedure Code there is a definite provision for review in Section 114 and there is an order of the Code, Order 47, dealing with the circumstances under which a review is permitted, if a review were intended by the Criminal Procedure Code there would have been some definite provision of this nature.

The learned Judge referred to the decisions of the various Indian High Courts and came to the following conclusion:

The above authorities make it clear that prior to 1923 all the High Courts were in agreement that no power of review lay in criminal cases. The judgment of the Lahore High Court in Rahu v. Emperor AIR 1928 Lah 462, gives good reasons for holding that the alterations in the Code in 1923 do not have the effect of allowing any power of review.

18. This case was followed in Banwarilal v. Emperor AIR 1935 All 466. In that case it was observed by Kendall, J., that Section 369 was amended in 1923 in such a way as to show that the High Court had no power of altering or reviewing a judgment except to correct a clerical error and that the legislature did not attempt or intend to deprive the High Court of any inherent power which it had hitherto possessed, with regard to the effect of introducing Section 561(A) into the Code the learned Judge observed thus:

That section does not in terms invest the Court with any powers which it did not possess before. But it does refer to an inherent power which the High Court is already in possession. We have given above the authority for holding that the High Court possessed no inherent power to review its judgment before the amendment of 1923. Consequently, it cannot be said that Section 561-A either modifies the provisions of Section 369 or clothes the Court with any fresh power.

19. The learned Public Prosecutor referred to a decision of the Allahabad High Court, namely Sri Ram v. Emperor AIR 1948 All 106, in support of his position. That was a case in which a mandatory provision of law was overlooked in a trial in respect of an offence under the Hoarding and Profiteering Prevention Ordinance. The accused was convicted by the Magistrate and in revision the sentence was reduced. Subsequently It was brought to the notice of the High Court by a petition that the amendment to Section 14-A of the Hoarding and Profiteering Prevention Ordinance made by a later Ordinance was overlooked at the trial and that in accordance with that amendment the Magistrate was bound to try the case in a summary way unless he was specially directed by the District Magistrate to try the case in the ordinary manner. Objection was taken that since the High Court had already disposed of the revision petition it had no power to review or alter its judgment.

The learned Judges repelled that contention and held that under Section 561-A it could exercise its inherent power to secure the ends of justice, and since a mandatory provision of law has been overlooked at the trial the Court corrected the error. This cannot, however, be said to be a case in which the High Court reviewed or altered its judgment. The question raised in the subsequent petition was neither raised nor considered in the revision petition that had been disposed of by the High Court. This decision cannot therefore be taken to be an authority for the position that the High Court has inherent power to review or alter its judgment. This is what the learned Judges observed in that case:

Where a revision has been decided, we are not of the opinion that a second revision would lie or that a party has a right to have the matter reheard or reargued, but where as in this case, a mandatory provision of law has been overlooked, we think this Court has power to correct an obvious error.

20. In Kale v. Emperor AIR 1923 All 473 (2), the Allahabad High Court held that even if any new materials were discovered which, if they had been placed before the Court, might have induced the Court to come to a different conclusion; the High Court had no power to review its Judgment and that the only remedy was to apply to Government.

21. The Bombay High Court also has taken the view that the High Court has no power to review or alter its judgment vide Queen Empress v. Ganesh Ramakrishna 23 Bom 50 and Nandlal Chunilal v. Emperor AIR 1946 Bom 276 (FB). In the last case on a reference made by the Sessions Judge under Section 438, Criminal P.C., the High Court passed an order to the following effect without issuing notice: 'No order in this reference'. Subsequently the applicant at whose instance the reference was made filed a revision petition in respect of the same matter. It was held that since the effect of allowing the revision petition would be altering or reviewing the prior judgment of the Court the petition was barred by Section 369.

22. The view taken by the Madras High Court is also the same. Vide Appayya v. Venkatapayya AIR 1923 Mad 276 (1). In Sankaralinga Mudaliar v Narayana Mudaliar AIR 1922 Mad 502 (FB), Veerappa Naidu v. Avudayammal AIR 1925 Mad 438 (FB) and Marudyya Thevar v. Shanmugasundra Thevar AIR 1926 Mad 139, the Madras High Court held that Section 561A confers no new powers on the High Court and that the Court cannot by invoking its inherent powers extend the powers given to it by statute. These cases however, did not relate to the power of the High Court to review its judgment. In Ranga Rao v. Emperor 23 Mad LJ 371, the Madras High Court held that in a case in which a reasonable opportunity was not given to the accused to be heard the dismissal of the appeal would be without jurisdiction and that the Court had power to rehear the appeal.

23. The Lahore High Court also has taken the same view. In Mohammad Sadiq v. Empror AIR 1925 Lah 355 that Court held that when an appall was dismissed without the appellant or his pleader being given a reasonable opportunity of being heard the order dismissing the appeal was one passed without jurisdiction and that the Court had inherent power to rehear the appeal. The learned Judges however made it clear that they were not holding that the Court has, under Section 561A, inherent power to review its judgment or order.

24. In Mathra Das v. Emperor AIR 1927 Lah 139, a Single Judge of the Lahore High Court i.e., Broadway, J. took the view that Section 369 did not limit the power of the High Court to make such orders as may be necessary to secure the ends of justice. This decision was however dissented from in Raju v. Emperor AIR 1928 Lah 462. In that case it was held that Section 561A does not confer any new powers on the High Court and that it merely declared that such inherent power as the High Court possessed shall not be deemed to be limited or affected by anything contained in the Code. It was also held that.

there never has been an inherent power in the High Court to alter or review its own judgment in a criminal case once it has been pronounced and signed except in cases where it was passed without jurisdiction or in default of appearance without an adjudication on the merits.

The learned Judges also observed that

With this view all the Courts in India are in accord, and it is not disputed that this was the law prior to the addition of Section 561A to the Criminal Procedure Code by the Act of 1923.

Fford J. who wrote the leading judgment also observed that he consulted Broadway J. who decided the case reported in A.I.R. 1927 Lah 139 and that the latter authorised him to say that he was not satisfied with his judgment in that case and that he was inclined to the view expressed by Ffrode J. This decision was followed in Edward Few v. Emperor AIR 1939 Lah 244.

25. The view taken by the Nagpur High Court is also the same. In Ganapat v. Emperor AIR 1931 Nag 169, a single Judge of that Court held that when the High Court has once passed a judgment or order it is final under Section 369 and that the provisions of Section 561A cannot be Invoked for reconsidering the question of sentence. In Diwan Singh v. Emperor AIR 1938 Nag 132, a Division Bench of that Court held that the High Court has no power to alter or review Its own judgment in a Criminal case once it has been pronounced and signed except in a case where it was passed without jurisdiction or in case of default of appearance without an adjudication on the merits, or to correct a clerical error. In Bashiruddin Ahmed v. Emperor AIR 1937 Nag 181, it was held that when the Court has sentenced the accused it becomes 'functus officio,' that it has no jurisdiction to let the accused on bail and that the inherent power of the High Court under Section 561A cannot be invoked with respect to a matter which is expressly dealt with by the Code.

26. The Patna High Court held in Asst. Govt. Advocate v. Upendranath AIR 1931 Pat 81, that Section 561A did not confer on the High Court power to alter or review its judgment in a criminal case but that where an order is passed 'ex parte' it must be regarded as a tacit term of such order that though unqualified in expression it should be open to reconsideration at the instance of the party prejudicially affected and that therefore the Court has power to rehear the matter. In Emperor v. Rashibihari Singh AIR 1934 Pat 551, the High Court dismissed an appeal by the accused from the conviction and sentence of the Sessions Judge. Subsequently a reference was made to the High Court about the legality of the sentence which was not brought to the notice of the High Court when the appeal was heard. It was held that the High Court had power to set right the mistake in the exercise of its inherent jurisdiction.

27. In Mohan Singh v. Emperor AIR 1944 Pat 209, it was held that where the High Court has pronounced its judgment and signed it, it becomes 'functus officio' and that neither the Judge who passed the judgment nor any other Bench of the High Court has any power to review or alter it except for correcting clerical errors, if any.

28. The Oudh Chief Court has also taken the same view on the question. In Jodha v. Emperor AIR 1940 Oudh 369, it was held

that the High Court has not and never has had any inherent power to review its own judgment and that Section 561A, Criminal Procedure Code does not confer on it any power so to do.

To the same effect is the decision in Mani Ram v. Emperor AIR 1947 Oudh 221.

29. The position taken by the cochin High Court is also the same. In Narayana Mallan v. Bhariravan Sippu 3 Cochin 7, the then Chief Court held that it had no power to review its judgment in a criminal appeal or an order dismissing an application for revision and that if after passing a judgment convicting the accused the Court entertained any doubt as to the propriety of the conviction the only course to adopt was to report the case to the local Government for action being taken under Section 401 of the Code of Criminal Procedure. This case was followed in Krishna Warriar v. Parutkutty Amma 8 Cochin 1.

30. It will thus be seen that practically all the High Courts in India are unanimous in their view that the High Court has no power to review or alter its judgment in a criminal case except in the case mentioned in Section 369 of the Indian Code of Criminal Procedure or where the Court has acted without jurisdiction or where it has decided the case without giving an opportunity to a party for being heard, - and that Section 581-A does not confer on the High Court any such power. It is true that the Travancore High Court held in some early cases that the High Court has such power. But in the later decisions of that Court the correctness of this view was doubted and a desire, was expressed to fall in line with the other High Courts of India on this Question, We do not think that there is-any reason why this Court should adopt a view different from that adopted by all the other High, Courts in India. Some of the High Courts have held that when a judgment is passed by the High Court without Jurisdiction or without giving an opportunity to the parties to be heard the judgment can be reviewed. In the case of absence of jurisdiction the judgment can be treated as one not valid in law and the passing of a fresh judgment cannot in strict sense be regarded as altering or reviewing a prior judgment.

31. With regard to cases in which the parties were not given an opportunity for being heard it may be taken to be an implied condition at such judgment or order that it should be open to reconsideration at the instance of the party prejudicially affected. The power of the Court to reconsider the matter is implied in the very nature of an 'ex parte' decision, it was so observed by the Privy Council in Krishnaswami Panikondar v. Ramaswamy Ccettiar AIR 1917 PC 179. Although this observation was made by the Privy Council with reference to proceedings in a civil suit the same principle must apply to proceedings in a criminal case also as held by the Patna High Court in Asst. Government Advocate v. Upendra Nath AIR 1931 Pat 81. These two cases will not therefore be real exceptions to the rule contained in Section 369. It was therefore to be held that except in cases where the Court has acted without jurisdiction or where the case was decided without an opportunity being given to the party to be heard the High Court has no power to alter or review its judgment in a criminal case save in matters specially provided for in section 369 (Indian Code of Criminal procedure).

32. Reference was made by the learned Public Prosecutor to a case in which this Court reviewed its judgment in a criminal revision, namely State v. Mathai Karutha Kunu Criminal R.P. No. 178/1950. That was a revision from an order of acquittal. This Court set aside the order of acquittal, and, instead of remitting the case to the Court below for fresh disposal, convicted the accused. The State filed petition to review this order on the ground that the revisional Court has no power to convert a finding of acquittal into one of conviction. In allowing the petition this Court observed that it was under the impression that the State had preferred an appeal from the order of acquittal that it happened to convict the accused. The conviction was therefore set aside and the case was remitted to the Court below for fresh disposal. This was really a case in which the Court had no jurisdiction to convict the accused and will come within the category of eases of want of jurisdiction. We cannot, therefore, regard this as an authority for the position that the High Court has got inherent power to review or alter its judgment notwithstanding the provision in Section 369, Code of Criminal Procedure. We, therefore, hold that the High Court has no power to review or alter its judgment in a criminal case except in matters specially provided for in the Code of Criminal Procedure and in cases in which the Court has passed the judgment without jurisdiction or without giving an opportunity to the parties for being heard.

33. So far as this particular case is concerned the direction in the judgment allowing the accused to be entrusted to the custody of his relatives was made on the basis of the interpretation of the proviso to Section 384, Travancore Code of Criminal Procedure and Rule 7 of the Rules passed under the Travancore Lunacy Act. The interpretation put upon the proviso does not appear to be in consonance with the rulings of the Indian High Courts on the point. The learned Judges themselves have cited with approval the ruling in Provincial Govt., C.P. & Berar v. Krishna Gopala AIR 1945 Nag 77 to the effect that alter the amendment of the Criminal Procedure Code the Court will not be justified in entrusting the accused to the care of his relations. But the learned Judges relied on Rule 7 of the rules passed under the Lunacy Act which, according to them, authorises the Court while passing a detention order to allow the lunatic to be kept in the custody of his relations. We are not called upon to canvass the correctness of this view. It is clear from the judgment that the learned Judges have applied their mind to the question of interpreting the proviso. They also considered the applicability of Rule 7 of the rules passed under the Lunacy Act.

The complaint of the learned Public Prosecutor is that the Court ought to have detained the accused in safe custody and reported the matter to Government for appropriate action being taken by Government with regard to the accused. According to the direction in the judgment the relations of the accused to whose care he has been entrusted have to give an undertaking to produce the accused whenever called upon to do so by Government and have to execute a bond for that purpose. It is seen from the bond executed by them that they have undertaken to produce the accused before Government when they are called upon to do so. If therefore Government want the production of the accused they have only to call upon the persons who have executed the bond either directly or through the High Court to produce the accused. In the circumstances, even if the direction in, the judgment is not strictly in accordance with law we do not think that this is a case in which the Court has acted without jurisdiction or where there has been an abuse of the process of Court or where any grave injustice was done to any party. In this view of the case also there is no reason why the petition filed on behalf of the State should be allowed. We therefore dismiss the Criminal Miscellaneous Petition.

Koshi, C.J.

34. I concur.

Govinda Pillai, J.

35. I too agree.


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