1. In this case accused Nos. 1 and 3 were convicted by the First Class Magistrate of Yellamanchilli of forgery for the purpose of cheating (Section 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 three 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 convictions 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 27th September 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 sentences of line. Mr. T.S. Anantharaman Vakil for the 1st accused stated that he had no instructions and 1st accused did not appear in person. Third accused appeared neither in person nor by Pleader. On 25th October 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 8th November 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, Cr.P.C. It is clear that under Section 369, Cr. P.C., 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 14 C. 42 : 7 Ind. Dec. 29 (F.B.), Queen-Empress v. Fox 10 B. 176 : 5 Ind. Dec. 502 . and Ranga Row v. Emperor 16 Ind. Cas. 518 : (1912) M.W.N. 982 : 12 M.L.T. 350 : 23 L.J. 371 : 13 Cr.L.J. 710 where it was held that the High Court had 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 the matter of Gibbons 14 C. 42 : 7 Ind. Dec. 29 said: 'Inasmuch 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 All v. Emperor 50 Ind. Cas. 25 : 46 C. 60 : 20 Cr. L.J. 256 in which the Full Bench ruling in In the matter of Gibbons 14 C. 42 : 7 Ind. Dec. was followed there occurrs the remark (at page 63) page of 46 C.-Ed.
4. 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 of where an order is passed to the prejudice of an accused person and by mistake or inadvertence 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 Kunhammad Haji v. Emperor 72 Ind. Cas. 599 : 46 M. 382 : (1923) M.W.N. A.I.R.(1923) (M.) 426 : 24 Cr. L.J. 439, it was held that neither Section 369 nor Section 439 of the Cr.P.C, 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 27th September 1923 and, that his order of 25th October 1923 must be treated as a nullity.
5. We have, therefore, to consider the next question under Section 439. Mr. Ethiraj for the accused contends that the order of enhancement of 27th September 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 thereby 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 25th October 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 25th October 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.C. 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 subsection 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.
6. On 14th September 1923, the accused received notice to show' cause against enhancement on 17th September 1923. The case did not come on, on that day, but on 27th September 1923. On 28th September 1923, accused received a second notice, dated 20th September 1923 fixing the October 1923 for the hearing of the case. A day or two after 28th September 1923. the accused's Vakil at Vizagapatam received a letter from Mr. T.S. Anantarama Aiyar informing him that the case had been disposed of on 27th September 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 Ali v. Emperor 50 Ind. Cas. 25 : 46 C 60 : 20 Cr. L.J. 265 already quoted. Further, the learned Judges in Ranga Row v. Emperor 16 Ind. Cas. 518 : (1912) M.W.N. 982 : 12 M.L.T. 350 : 23 M.L.J. 371 : 13 Cr. L.J. say, following High Court Proceedings, 7th November 1873 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 had no jurisdiction to dismiss the appeal.' In. Kunhammad Haji v. Emperor 72 Ind. Cas. 599 : 46 M. 382 : (1923) M.W.N. 94 : 44 M.L.J. 450 : A.I.R.(1923) (M.) 426 : 24 Cr. L.J. 439, 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 Row v. Emperor 16 Ind. Cas. 518 : (1912) M.W.N. 982 : 12 M.L.T. 350 : 23 M.L.J. 371 : 13 Cr. L.J. 710, 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 Kunhammad Haji y. Emperor 72 Ind. Cas. 599 : 46 M. 382 : (1923) M.W.N. 94 : 44 M.L.J. 450 : A.I.R.(1923) (M.) 426 : 24 Cr. L.J. 439 says, that the passage quoted above frorn Ranga Row v. Emperor 16 Ind. Cas. 518 : (1912) M.W.N. 982 : 12 M.L.T. 350 : 23 M.L.J. 371 : 13 Cr. L.J. 710 is a, misstatement of the law. I must, therefore, hold that there, is no bar to this matter of enhancement being heard on the merits 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 matter 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 not previous valid adjudication to bar a hearing, on the, merits. There must be fresh notice to the accused and the case will come, up a fresh for disposal on the question of enhancement of sentences.
7. 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 27th September 1923, or whether it is resintegra. 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.
8. To take the first order of 27th September 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 25th October 1923 to vacate his order imposing enhanced punishment. It appears that the accused were served with a notice of the revision case first on 14th September 1923 in the Vizagapatam District for a hearing at Madras on 17th September 1923 and that a fresh notice was sent to them fixing 8th October 1923 for, hearing which was served on them there again on 28th September 1923 and that in the meantime the case was posted for hearing in this Court on 27th September 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 27th September 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 Cr.P.C. that no order under this section shall be made to the prejudice of the accused unless he has had an opportunity of being heard either personally or by Pleader in his own defence' had not been followed in this case.
9. The next point is whether such failure ipso facto rendered the order passed on 27th September 1923 null and void. We have been referred by the accused's Counsel to several rulings. In Shanmugam Chettiar v, Alagia numbiya Pillai 2 Weir 475, 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 Emperor v. Romesh Chandra Gupta 46 Ind. Cas. 157 : 22 C.W.N. 168 : 19 Cr. L.J. 701, 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 himself 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, Cr.P.C., as interpreted by that, and other High Courts does not confer on a High Court any power of review on the ground that its former order Avas wrong. See for example Queen-Empress v. Durgacharan 7 A. 672 : A.W.N. (1885) 177 : 4 Ind. Dec. 867, Queen-Empress v. Fox 10 B. 176 : 5 Ind. Dec. 502 . In the matter of Gibbons 14. C. 42 : 7 Ind. Dec. 29 and Kunhammad Haji v. Emperor 50 Ind. Cas. 25 : 46 C. 60 : 20 Cr. L.J. 265. Nor does any other Statute or Letters Patent give it such a power. The Judges in Emperor v. Romesh Chandra Gupta 46 Ind. Cas. 157 : 22 C.W.N. 168 : 19 Cr.L.J. 701 seem to me clearly to have overlooked or brushed aside the fact that they had no power to review their first order. In Ranga Row v. Emperor 16 Ind. Cas. 508 : (1912) M.W.N. 982 : 12 M.L.T. 350 : 23 M.L.J. 371 : 13 Cr. L.J. 710, 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 re-trial, 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, Cr.P.C. 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 42l 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 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 somehow 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 underlying the case in Ranga Row v. Emperor 16 Ind. Cas. 518 : (1912) M.W.N. 982 : 12 M.L.T. 350 : 23 M.L.J. 371 : 13 Cr. L.J. It is also the view taken obiter no doubt by Old-field, J., in Kunhammad Haji v. Emperor 72 Ind. Cas. 599 : 46 M. 382 : (1923) M.W.N. 94 : 44 M.L.J. 450 : A.I.R.(1923) (M.) 426 : 24 Cr. L.J. 439 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.
10. 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 I 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.