1. In this case accused 1 and 3 were convicted by the 1st class Magistrate of Yellamanchilli of forgery for the purpose of cheating (S. 468 Indian Penal Code), and sentenced to imprisonment till the rising of the Court--also 1st accused was ordered to pay a fine of Rs. 300 with 3 months' rigorous imprisonment in default, and 3rd accused was fined Rs. 150 with two months' rigorous imprisonment in default. On appeal, the Sessions Judge of Vizagapatam confirmed the conviction and sentences. The case was' taken up in revision by Devadoss, J., on the ground that the Magistrate had no jurisdiction to try the case. The case came on for hearing on 27-9-1923 before Krishnan, J., who held that the conviction was correct but enhanced the sentences on each accused to six months' rigorous imprisonment retaining the sentence of fine. Mr. T. S. Anantaraman, Vakil for 1st accused, stated he had no instructions and 1st accused did not appear in person. 3rd accused appeared neither in person nor by pleader. On 25-10-1923 Krishnan, J., vacated his previous order, no doubt, because he found it had, been passed without jurisdiction, and directed the case to be posted later, on the question of enhancement. The case, therefore, came on before Waller, J., on 8-11-1923, who referred it to a bench as the Public Prosecutor proposed to argue that Krishnan, J., had no power to vacate his order, and the question has accordingly been argued before us on that point, and also on Section 439, Criminal Procedure Code. It is clear that under Section 369, Criminal Procedure Code, the judgment of this Court in a Criminal matter as soon as it is signed, is final and the Court is functus officio as soon as that is done. Thereafter there is no power to revise or alter that decision. In the matter of Gibbons ILR 14 C 42 (FB) and Queen Empress v. C. P. Fox ILR 10 B 176 (FB) and Ranga Rao v. Emperor : (1912)23MLJ371 where it was held that the High Court has no power to review an order made in the exercise of its revisional jurisdiction. The old section ran as follows.
No Court, other than a High Court, when it has signed its judgment, shall alter or review the same, except as provided in Sections 395 and 484 or to correct a clerical error. ' Petheram, C. J., in I.L.R. 14 Cal. 42 at page 47, said: 'In as much as it is not shown to us that, before the passing of this section, any power of revision existed in the High Court, that section did not, in my opinion, create any such power.
2. The new section runs as follows:
Save as otherwise provided by this Code or by any other law for the time being in force or, in the case of a High Court established by Royal Charter, by the Letters Patent of such High Court, no Court when it has signed its Judgment, shall alter or review the same, except to correct a clerical error.
3. It has not been argued that the amendment has changed the scope or effect of the section, and it is not shown that any such power is reserved to this High Court by its Letters Patent. In Rajjab Ali v. Emperor ILR 46 C 60, in which the Full Bench in In the matter of Gibbons ILR 14 C 42 (FB) was followed, there occurs the remark: (at p. 63)
The result of the decisions of this Court subsequent to the Full Bench case seems to be this that where a case is disposed of merely for default of appearance or where an order is passed to the prejudice of an accused person and by mistake or inadvertance no opportunity has been given to him to be heard in his defence such an order is not one to which the ruling in the Full Bench case applies.' In In re Kunhamdd Hap 44 MLJ 450 it was held that neither Section 364 nor Section 439 of the Code of Criminal Procedure empowers the High Court to revise or review the Judgment of one or more of its Judges in a criminal appeal or revision. The learned Judges (Oldfield and Devadoss, JJ.) in a very careful Judgment examined all the case-law on the point and held as above set out. It appears to me, therefore, that Krishnan, J., had no power to revise his order of 27-9-1923 and that his order of 25-10-1923 must be treated as a nullity.
4. We have therefore to consider the next question under Section 439. Mr. Ethiraj for the accused contends that the order of enhancement of 27-9-1923 was passed without jurisdiction as his clients had no opportunity of being heard as required by Sub-section (2) of Section 439. The question is whether we have power to come to any conclusion with regard to the order of enhancement or whether we should there be falling into the very error, I have just pointed out as we have no power to revise the same. As pointed out, the accused did not appear. Mr. Anantaraman for 1st accused asked for an adjournment which was refused. He thereupon reported no instructions, as he was only retained on the question taken up by Devadoss, J. It does not appear from the order of Krishnan, J., of 25-10-1923, that the learned Judge purported to vacate his order on this ground, that is, the non-appearance of the accused. But we are informed that that was so and there is no reason to doubt that this consideration induced the learned Judge to make the order of 25-10-1923. The question is not as to our power to revise the order of Krishnan, J., but whether we have power to take any action as to the order of enhancement; if Krishnan, J. 's order is one he had power to make, we cannot do so; if on the other hand it is an order he had no power to make by reason of the language of Section 439 (2), Cr.P. Code, then it seems to me that we are authorised to deal with the question. We are not revising Krishnan, J.'s Judgment but considering our own powers of acting on the petition before us. The language of the sub-section is mandatory and is clearly enacted as an exception to Section 440. It appears to me therefore that if the accused had no opportunity of being heard, this being clearly an order to his prejudice, more than an irregularity occurred, and that there is authority for holding that an order so passed was passed without jurisdiction. The facts appear as follows:
On 14-9-1923 the accused received notice to show cause against enhancement on 17-9-1923. The case did not come on, on that day, but on 27-9-1923. On 28-9-1923, accused received a second notice dated 20-9-1923 fixing 8-10-1923 for the hearing of the case. A day or two after 28-9-1923 the accuseds' Vakil at Vizagapatam received a letter from Mr. T. S. Anantarama Aiyar informing him that the case had been disposed of on 27-9-1923. The office posted the case apparently as soon as a return to the first notice was made, but while the second notice was outstanding. I have no hesitation in saying that the accused must have been embarrassed by this procedure and I hold that they had no reasonable opportunity under these circumstances of being heard. The authority for the proposition that an order passed in such circumstances is without jurisdiction is to be found in the passage from Rajjab All v. Emperor ILR 46 C 60 3. : (1912)23MLJ371 , already quoted. Further, the learned Judges in Rangha Rao v. Emperor : (1912)23MLJ371 , say, following 7 M. H. C. R., App 29, that where a criminal appeal has been rejected, and accused's pleader had not a reasonable opportunity of being heard, the Court could restore a case to its file. They continue: 'We have no doubt that this is correct, for the language of Section 421 required a reasonable opportunity to be given and if such reasonable opportunity is not given, the Court has no jurisdiction to dismiss the appeal. ' In In re Kunhammad Hap 44 MLJ 450, Oldfield, J., assumes that reasonable notice under Section 420 is a condition precedent to the exercise of the Court's jurisdiction, and that that condition not being fulfilled, there was no previous valid adjudication to bar a hearing on the merits,--which ,is exactly the case here. Devadoss, J., in the same case doubts the validity of Ranga Rao v. Emperor : (1912)23MLJ371 , on the ground that the Court is not entitled to dismiss a criminal revision petition for default but should dispose of it on the merits. The High Court in that case dismissed the petition to restore a criminal revision petition dismissed for default. Neither of the learned Judges in In re Kunhammad Haji ILR 46 M 382 says that the passage quoted above from Ranga Rao v. Emperor : (1912)23MLJ371 is a mis-statement of the law. I must therefore hold that there is no bar to this matter of enhancement being heard on the merits. I would, however, add one thing. The learned Public Prosecutor has pressed upon us that if we come to this conclusion, it will open a wide door to revision in criminal matters and that it may be applied to any manner of error. I think there is no such danger. This case is exceptional in its circumstances, and has been brought about by the practice of the office in posting a case in the list in accordance with one notice, while there is another and subsequent notice for a different date outstanding. As stated above, we are in no way reviewing or revising any order of Krishnan, J., but simply deciding that there was no previous valid- adjudication to bar a hearing on the merits. There must be fresh notice to the accused and the case will come up afresh for disposal on the question of enhancement of sentences.
5. The question before us, as I conceive it, is whether this criminal revision case taken up suo motu by this Court calling on the accused to show cause against enhancement of punishment has already been disposed of finally by this Court by the order of Krishnan, J., dated 27-9-1923, or whether it is res Integra. It is not a question of whether the present Bench can sit in revision over either of the orders of Krishnan, J., but whether either or both of these orders is ab initio null and void as being made without jurisdiction, and for the purpose of deciding that question, and for no other purpose, it is necessary for us here to consider the legal effect, if any, of these two orders.
6. To take the first order of 27-9-1923, it was admittedly passed without hearing the accused, and I think we must take it that the accused had had no reasonable opportunity of being heard since Krishnan, J., thought it necessary later on in the interests of justice by means of a second order dated 25-10-1923 to vacate his order imposing enhanced punishment. It appears that the accused were served with a notice of the revision case first on 14-9-1923 in the Vizagapatam District for a hearing at Madras on 17-9-1923, and that a fresh notice was sent to them fixing 8-10-1923 for hearing which was served on them there again on 28-9-1923, and that in the meantime the case was posted for hearing in this Court on 27-9-1923 and heard. A pleader, who had appeared for them earlier in the case before the question of enhancing the punishment was taken up suo motu, appeared on 27-9-1923 on seeing the case posted on the notice board. He was not instructed to argue the question of enhanced punishment on behalf of the accused and he therefore only prayed for an adjournment which was refused In these circumstances I think it clear that the provision in Section 439 (2) of the Criminal Procedure Code that 'no order under this section shall be made to the prejudice of the accused unless he had an opportunity of being heard either personally or by pleader in his own defence ' had not been followed in this case.
7. The next point is whether such failure ipso facto rendered the order passed on 27-9-1923 null and void. We have been referred by the accused's counsel to several rulings. In Shanmugam Chettiar v. Alagia Nambiya Pillai (1882) 2 Weir 275, this High Court set aside an order of a lower appellate Court disposing of an appeal on the date previous to the date fixed for hearing on the ground that such a proceeding was a material error in procedure. It is not stated, however, that the order of the lower appellate Court was ab initio null and void. In King Emperor v. Romesh Chandra Gupta (1917) 22 CWN 168, a case of 1917, the High Court of Calcutta, having first held that Section 439 (2) had been sufficiently complied with when the District Magistrate, before referring the question of enhanced punishment to the High Court, had heard the accused, and after itself enhancing the punishment accordingly, subsequently reviewed its own order and set it aside on changing its mind and holding that the accused had a right of being heard before the High Court itself. The Court also did not treat its first order as null and void but ' reviewed ' it, as it says. With respect I doubt very much the correctness of this decision since it appears to me that Section 369 of the Criminal Procedure Code, as interpreted by that and other High Counts does not confer on a High Court any power of review on the ground that its former view was wrong. See for example Queen Empress v. Durga Charan ILR 7 All 672 ; Queen Empress v. C. P. Fox (2). In the matter of Gibbons ILR 4 C 42 (FB) and In re Kunhammad Haji (1933) 44 MLJ 450. Nor does any other statute or Letters Patent give it such a power. The Judges in the C. W. N. case seem to me clearly to have overlooked or brushed aside the fact that they had no power to review their first order. In In re Ranga Rao a Bench of this Court was asked to review its order dismissing for default a Criminal Revision Petition by a party against an order of the Sessions Judge ordering his retrial, and it was held that no party coming up in revision can claim such a right. It is pointed out to us that in that case the Bench approved of an earlier ruling of this Court in which it was held that, where an appeal had been rejected under Section 421 of the Criminal Procedure Code without the appellant's pleader being heard, (or more correctly without the appellant or his pleader having had an opportunity of being heard) the Court could restore it to file, and this was explained to be a right inherent in Section 421 itself, because that section implies that such reasonable opportunity must be given before the Court has jurisdiction to dispose of the appeal. In spite of some looseness of language, if I may use that expression with respect, in the concluding portion of that judgment implying that, in British India, Courts have no power whatever to restore criminal cases to file since there is no statutory provision for such a course, I think the ratio decidendi of that decision is that a High Court has as a rule no power to review its order in revision, because the power to revise is purely a discretionary power regarding the exercise of which no party has a right to be heard at all but that where a party has a legal right to be heard and yet has not been given the opportunity of being heard the Court can and could restore the case to file. Under what statutory power it so restored it is by no means made clear in that judgment. Obviously Section 439 (2) gives to an accused person a right of audience similar to that given by the proviso to Section 421 (1) and it would seem reasonable that, if the failure by the Court to observe the latter provision some how creates a right in the Court to restore the case to file, so ought a similar failure to observe the former provision. The only difficulty is, where is that right to be found? It is clearly, as already indicated, not a right of review of judgment. Can it then reasonably be held that disregard of such a nature of the provisions of the code deprives the Court of its jurisdiction so that its order is null and void? That is I think the view ILR 10 B 176 (FB). underlying the 23 M.L.J. case. It is also the view taken obiter no doubt, by Oldfield, J., in I.L.R. 46 Mad. 382 , and I think with respect that it is a sound judicial view, and that a reasonable opportunity for the accused to be heard is an essential condition precedent to the exercise of jurisdiction under Section 439, when the Court is considering the question of enhancing the punishment inflicted on him.
8. I am of opinion then, that the conditions laid down by law as precedent and requisite to the hearing of this case, not having been observed, the Court acted without jurisdiction, and its order is therefore void ab initio; and on this ground and on this alone 1 would base my decision. I would therefore hold that the first order of Krishnan, J., was without jurisdiction and therefore void. The question of the second order is therefore immaterial and the passing of it was unnecessary. It follows that this High Court has not yet pronounced a valid legal judgment in this Criminal Revision case and it is therefore open to this Court to hear the case on the merits.