B.J. Divan, J.
1. This application has been filed under the provisions of Article 226 and Article 227 of the Constitution of India and under Section 439, or. P. C The petitioner has prayed that by a Writ of certiorari or by a Writ in the nature of Certiorari or by any other Writ, direction or order, the judgment and order of conviction and sentences recorded by the learned Sessions Judge, Surendranagar, in Sessions Case No. 5 of 1966 on May 20, 1966, in so far as the said order of conviction and sentence affects the petitioner, sentencing the petitioner to suffer R.L for five years on each flaunt under Section 395 and Section 394, I.P.C., be quashed and set aside and by such Writ, direction or order, the petitioner may be ordered to be acquitted and be ordered to be set at liberty forthwith. The petitioner has also prayed for an order for bail pending the hearing and final disposal of this petition.
2. The facts giving rise to this petition are rather peculiar. The petitioner and five other parsons were charged with offences punishable under Section 395 read with Section 397, Section 394 and Section 342, I.P.C. The trial against the six accused persons proceeded before the learned sessions Judge, Surendranagar in Sessions Own No. 5 of 1966. The learned Sessions Judge by his judgment and order, dated May 20, 1966, convicted accused No. 1 under Sections 395 and 394,:I.P.C. and sentenced him to R. I. for a period of 7 years and to pay a fine of Rs. 500/, in default R. I. for six months so far as the charge under Section 395, L P.C., was concerned and also sentenced him to R. I. for five years on the charge under Section 394, I.P.C. The sentences were directed to run concurrently so far as accused No. 1 was concerned. The learned Sessions Judge convicted accused No. 3 under Section 395, I.P.C., and sentenced him to R. I. for seven years. Accused No. 3 was also convicted under Section 394, I.P.C. and was sentenced to R. I. for five years on that count. The present petitioner was accused No. 4 before the learned Sessions Judge and the petitioner was convicted under Sections 395 and 394, I.P.C., and was sentenced to R. I. for five years on each count. The substantive sentences of all the three accused, accused Nos. 1, 3 and 4 were directed to run concurrently Accused Nos. 2, 5 and 6 were acquitted by the learned Sessions Judge. The present petitioner, i.e., original accused No. 4, preferred an appeal from jail and that appeal was numbered as Criminal Appeal No. 576 of 1966 in this High Court and that appeal was dismissed summarily on July 6. 1966, by a Division bench of this High Court consisting of Vakil and M.U. Shah, JJ. Independently of the appeal filed by the present petitioner, the other two accused, viz., accused Nos. 1 and 3 preferred Criminal Appeal Nos. 603 of 1966, and that appeal was filed through their Advocate, Mr. A. H. Mehta. That appeal of accused Nos. 1 and 3 was admitted by the Division bench consisting of Vakil and M. U. Shah JJ. on July 28, 1966. The appeal of accused Nos. 1 and 3 was finally disposed of by a Division Bench of this High Court consisting of Bekshi Actg. C.J. (as he then was) and Thakore J., and the Division Bench allowed the appeal and acquitted accused Nos. 1 and 3 and directed that these two accused persons should be set at liberty so far as this case was concerned. This judgment of the Division Beach was delivered on December 15, 1967. After that Division bench judgment was delivered, the petitioner has presented the present Special Criminal Application, praying for the reliefs sat out above.
3. The contention of the petitioner is that on a careful appreciation of the entire evidence in the case, the Division Bench while dealing with the appeal of original accused Nos. 1 and 3, has completely disbelieved the prosecution evidence: and accordingly the petitioner has filed this application so that in the interests of justice, the High Court may set aside the order of conviction and sentence passed by the learned Sessions Judge against the present petitioner. As we have pointed out earlier, the present application has been filed under three alternative provisions of law, viz., Articles 223 and 227 of the Constitution and the revisional jurisdiction under Section 429, Or. P.C.
4. Mr. Mehta, appearing on behalf of the petitioner before has, based his arguments and contentions on the decision of the Supreme Court in U. I. S. Chopra v. State of Bombay : 1955CriLJ1410 ; and the question that we have to consider is whether in the light of the principles enunciated by the Supreme Court in that case, the High court has any power to deal with the case of the accused under any of the provision a of law under which the jurisdiction of the High Court has been invoked by the petitioner.
5. In Chopra's case : 1955CriLJ1410 (supra), what happened was that Chopra was convicted by the Presidency Magistrate, 13th Court, Bombay, of an offence under Section 66(b), Bombay Prohibition Act, and sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 250 or to undergo rigorous imprisonment for one month. Chopra preferred an appeal to the High Court at Bombay but his appeal was summarily die-missed by a Bench of that Court on January 19, 1953. After the dismissal of that appeal, the State of Bombay preferred a Criminal Revision Application to the High Court for enhancement of the sentence and thereafter notice was issued to Chopra under the provisions of Section 439(2), Criminal F. C. and at that stage the learned Counsel for Chopra contended before the High Court that he had a right under Section 439(6), Criminal P.C. to show cause also against his conviction. The High Court of Bombay did not permit him to show cause against order of conviction but ultimately the High Court did not think fit to pass any order of enhancement of sentence and ultimately under a certificate granted under Article 134(1)(c) of the Constitution, the appeal was taken to the Supreme Court. S.R. Das J. (as he then was) and Bhagwati and Imam JJ., reached the same conclusion, viz., that Chopra's appeal should be allowed and the High Court of Bombay should be directed to allow Chopra an opportunity to show cause against his conviction and then to dispose of the matter according to law. The view which appealed to Das J., was that under the provisions of Section 430, Criminal P.C. there was a finality of all orders passed in the exercise of appellate jurisdiction but under the terms of the non obstante clause in Section 430, Criminal P.C. an exception was made in the case of judgment and orders passed by an appellate Court which become final, except in cases provided in Section 417 and Chap. 32, Criminal P. C. Chapter 32, which contains Sections 432 to 442(both inclusive) deals with reference and revision; and the powers of the High Court in revision are set out in Section 439, Criminal P. C. and are thus set out in Chap. 32. According to the view which appealed to Das J., therefore, though an order passed by the High Court summarily dismissing the appeal under Section 421 was otherwise final under the provisions of Section 430, if the matter arose under Section 439, then the High Court could issue a notice of enhancement under Section 439(1) and while disposing of that notice of enhancement under Section 439(5), the High Court was bound to give an opportunity to the convicted person of showing cause against his conviction; and it was in the light of the provisions of exception set out in Section 430, that S. R. Das J., based his conclusion. The majority of the learned Judges constituting the Bench of the Supreme Court in Chopra'a case : 1955CriLJ1410 viz., Bhagwati and Imam JJ., came to the same conclusion but on a different reasoning. The view which appealed to the learned judges-constituting the majority was that what be-came final and replaced the order of the Lower Court was the judgment of the appellate Court and after considering various authorities on the point, the learned Judges constituting the majority, as observed by Bhagwati J. in Para 27 of the report, held that a judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would be arrived at after due consideration of the evidence of all the arguments and would, there. fore, be a judgment; and such judgment when pronounced would replace the judgment of the lower Court thus constituting the judgment of the High Court and that only such final judgment is to be executed in accordance with law by the Court below. The further view which was taken in Chopra's case : 1955CriLJ1410 , (supra) by the learned Judges constituting the majority was that when the High Court summarily rejected a petitioner's appeal under Section 421 on the ground that there was no prima facie case for the interference by the High Court or when the High Court summarily rejected a revision application or rejected a Reference made to the High Court endorsing or stating that the Reference was not accepted, all that was happening was that the High Court was expressing its view that in none of the three cases was there a prima facie case for the interference by the High Court, In para 22 at page 647 of the report. Bhagwati J. has classified the different types of oases when a convict person gets a tight to show-cause against his conviction. He has pointed out that there are four different types of such cases:
(1) Where his petition of appeal has been summarily dismissed either without hearing him or after hearing him or his pleader as the case may be.
(2) When his appeal has been dismissed after a full hearing following upon the notice of appeal being issued to the opposite patty.
(3) When his application for revision has been summarily dismissed either without hearing him or after heating him or his pleader as the case may be; and
(4) Where his application for revision has been dismissed after a full hearing following upon a notice issued to the opposite party. At page 651 of the report, Bhagwati J. has observed:
In cases where the petition of appeal or the application for criminal revision is admitted by the High Court and a notice is issued to the opposite party and the High Court maintains the conviction with or without reducing the sentence passed upon the accused, the judgment of the High Court in the exercise of its appellate or revisional jurisdiction would replace the judgment of the lower court and there would be no occasion at all for the exercise by the High Court of its revisional powers under Section 439(1) which can only be exercised qua the judgments of the lower Courts and certainly not qua its own judgments.
The cases (3) and (4) noted above would therefore be outside the purview of Section 439(1). If that is so there would be no question of giving the accused an opportunity of being heard either personally or by pleader in his defence under Section 439(2) and the provisions of Section 439(6) would certainly not come into operation at all.
Earlier at page 650, Bhagwati J. has observed:
In the cases (1) and (3) noted above there. fore there being no judgment of the High Court replacing the judgment of the lower Court, Section 439(1) would operate and the High Court in exercise of its revisional jurisdiction either 'suo motu' or on the application of the interested party would be in a position to issue the notice of enhancement of sentence which would require to be served on the accused under Section 439(2) so that he would have an opportunity of being heard either personally or by pleader in his own defence.
In that event the convicted person in showing cause why his sentence should not be enhanced would also be entitled to show cause against his conviction.
Therefore, Bhagwati & Imam JJ. based the majority decision in Chopra's case : 1955CriLJ1410 , on the footing that an order of summary dismissal either of a revision application or a petition of appeal does not amount to a judgment of the High Court in the sense of a judgment pronounced after a full hearing given to both the parties and Betting out the reasons for the conclusions reached by the High Court. But even though the learned Judges-constituting the majority came to that conclusion they have in their judgment observed that there is a principle of finality of judgment even in criminal matters-
At page 648 of the report, Bhagwati J. observed:
The principle as to the finality of criminal judgments has also been invoked while considering this question. This principle has been recognised by this Court in Janardan Reddy v. State of Hyderabad : 2SCR344 , where Fazl Ali J. observed:
It is true that there is no such thing as the principle of constructive 'res judicata' in a criminal case, but there is such a principle as finality of judgments, which applies to criminal as well as civil cases and is implicit in every system, wherein provisions are to be found for correcting errors in appeal or in re. vision. Section 430, Criminal P.C...has given express recognition to this principle of finality by providing that judgments and orders passed by an Appellate Court upon appeal shall be final, except in cases provided for in Section 417 and Chap. 32.
6. It is because of this principle of finality of an order passed by an appellate Court conferred upon such order by Section 430, that at p. 650 of the report, Bhagwati J. has observed:
The order dismissing the appeal or criminal revision summarily or 'in limine' would no doubt be a final order of the High Court not subject to review or revision even by the High Court itself but would not tantamount to a judgment replacing that of the lower Court. The convicted person would be bound by that order and would not be able to present another petition of appeal or application for criminal revision challenging the conviction or the sentences passed upon him by the lower Court.
But such order would not have the effect of replacing the judgment or order of the lower Court which would in that event be subject to the exercise of revisional jurisdiction by the High Court under Section 439 of the Criminal Procedure Code at the instance of the State or an interested party.
It is, therefore, clear that even according to the majority of the learned Judges in Chopra's case : 1955CriLJ1410 an order of Summary dismissal of an appeal is final subject to the revisional jurisdiction of the High Court under Section 489, Criminal P.C. so far as the exercise of that power is concerned at the instance of the State or of an interested party or of the High Court acting suo motu. But barring this exercise of the power under Section 439, Criminal P.C. at the instance of the State or at the instance of an interested party or at the instance of the High Court acting suo motu, the convicted person himself, whose appeal has been summarily dismissed is bound by the order summarily dismissing his appeal and he would not be entitled to present an. other petition of appeal or Criminal Revision Application challenging the convictions or sentences passed upon him by the lower Court. It must not be forgotten that those observations in Chopra's case : 1955CriLJ1410 were made by Bhagwati J, speaking on behalf of himself and Imam J. while dealing with question of what is to happen when a notice of enhancement has been issued at the instance of the State Government by the High Court after the appeal against the conviction has been summarily dismissed by the High Court. It is true that according to this judgment of Bhagwati and Imam JJ., in the instant case, there is no judgment of the High Court re-placing the judgment of learned Sessions Judge; and to that extent it would be open to the High Court, in view of the decision in chopra's case : 1955CriLJ1410 if it so chose, to issue a notice of enhancement under Section 439(1), Criminal P.C. and if that were to be done, it would be open to the present petitioner under Section 439(6), Criminal P.C. not only to show cause against enhancement but also against his conviction as well; but if the High Court does not choose to exercise its jurisdiction under Section 439(1), Criminal P, C. and no notice of enhancement under Section 439(2), Criminal P.C. is issued, the order of summary dismissal passed by the High Court dismissing the present petitioner's petition of appeal on the earlier occasion would become final and that finality would be in accordance with what has been observed by Bhagwati J., in para 25 at page 648 of the report in Chopra's case : 1955CriLJ1410 following the observations of Fazl Ali J. in Janardan Ready's case : 2SCR344 .
7. It is, therefore, clear to us that so far as the present case is concerned, the High Court has no power to interfere with the order of summary dismissal which has become final. The order passed by this High Court in Criminal Appeal No. 576 of 1966, on July 8, 1966, has become final and if we were to grant any relief to the present petitioner in the present special criminal application, we would be interfering with the finality of that order in one form or another. Though there is no judgment of the High Court in the sense defined by Bhagwati and Imam JJ. in Chopra's case : 1955CriLJ1410 there is an order passed by the High Court under Section 421, Criminal P.C. in the cage of the present petitioner in Criminal Appeal No. 576 of 1966 and that order passed by the High Court has become final by virtue of Section 430, Criminal P.C. The judgment still remains the judgment of the Sessions Court but the order of summary dismissal dismissing the appeal of the present petitioner has became final and is not open to review or revision or further appeal so far as this High Court is concerned, at the instance of the petitioner.
8. Mr. Mehta, on behalf of the petitioner, urged before as that we should euo motu exercise the revisional jurisdiction in the interests of justice and set aside the order of conviction and sentence passed by the learned Sessions Judge against the present petitioner. If we were to accede to that request of the learned Counsel for the petitioner, we would be setting at naught the finality of the order passed by this High Court in Criminal Appeal No. 576 of 1966, on July 8, 1966. and that, even according to the learned Judges constituting the majority in Chopra's case : 1955CriLJ1410 is not competent to the High Court to do. The exercise of the inherent powers of the High Court or the exercise of the powers under Article 226 or Article 227 of the Constitution would also interfere with the finality of the order of the High Court in Criminal Appeal No. 576 of 1966; and on that ground alone the powers of the High Court cannot be exercised.
9. In our opinion, the position so far as the present petitioner is concerned is not altogether hopeless, because, in our opinion, this is a fit case in which the High Court should recommend to the State Government that it should exercise its powers under Chapter XXIX of the Criminal Procedure Code and pass appropriate orders in view of the special facts and circumstances of this case. The appeal of the two co-accused, viz., accused Nos. 1 and 3. has been allowed after another Division Bench of this High Court has appreciated evidence on record and in view of that appreciation by the other Division Bench, it would be for the Government to consider whether it should exercise its powers under Chapter XXIX of the Criminal Procedure Code: and we recommend the case of the petitioner to the Government accordingly.
10. Mr. Mehta, on behalf of the petitioner, orally applied for a certificate under Article 134(1)(c) of the Constitution for leave to appeal to the Supreme Court. In our opinion, in view of the clear observations of the Supreme Court referred to above, this is not a fit case where the certificate prayed for should be granted. The application is therefore rejected.
11. In the result, this special Criminal Application fails and is dismissed. Rule is discharged. There will be no order as to costs of this petition.