1. In this case a Rule was issued calling upon the District Magistrate to show cause why the conviction and sentence should not be set aside on the ground that the appellate Court did not find that there was evidence on which, the petitioner could properly be convicted.
2. This rule appeared in the paper for hearing on the 3rd of November and on that day an order was made by the learned Judges of the Criminal Bench in these terms. 'No body appearing to support this Rule, it is discharged.'
3. On the 7th of November, an application was made to the same learned Judges asking that the case might be restored to the list and heard and determined upon the merits. Accordingly the case was restored to the list and it came on for hearing before this Court. On the case being called on, a preliminary objection was taken by Mr. Douglas White who appeared to show cause against the rule to the effect that this Court had no jurisdiction to deal with the Rule because it had already been discharged by the Criminal Appellate Bench and he cited in support of his preliminary objection in the case In Re: Gibbons 14 C. 42.
4. In support of the Rule Mr. Pugh contended that the order of discharge was in effect set aside by the order restoring the case to the list, secondly, that the Court had an inherent jurisdiction to alter its judgment until the order had been drawn up and sealed, and, thirdly, the case ought to be heard because there had been no hearing upon the merits.
5. The second of these contentions, namely, that there was jurisdiction to alter the judgment at any time before the order was drawn up and sealed, was supported by the case of Queen-Empress v. Lalit Tewari 21 A. 117 but all we can say on this point is that there was not brought to our notice any section or any Act or any rule having the force of law which provides that such an order as that under notice requires to be sealed. That being so, we think, that that ground, on the materials which are placed before us in argument, fails. But the substantial question is, whether we have the jurisdiction to re-open the rule, the order of discharge having been made merely in default of appearance. We have referred to the oases decided on this point both in this country and in England. There is abundant authority for the proposition that the Court in India cannot review or alter its own judgment in a Criminal case; see In Re: Gibbons 14 C. 42 and the Queen Empress v. Fox 10 B. 176.
6. We are, however, unable to find in this country any authority for the proposition that there is no jurisdiction to hear and determine a Criminal case which has not been heard and determined on the merits. The two cases which we have referred were heard and determined and the Court had given a judgment in each. On this ground these cases are distinguishable from the present case which has not been heard and determined and in which no judgment has been given. The English cases dealing with the practice as regards Rules and motions, are to the effect that the Court will not re-open a Rule when it has been disposed of after hearing. See Phillips v. Weyman 2 Chitty 265 but notwithstanding that rule there is one case at least in which a Rule discharged under a misapprehension of fact was allowed to be re-opened on a fresh motion; see Cooper v. Jogger 1 Chitty 445.
7. These and the two cases to which we have last referred, lead us to the view that the proposition that there is no inherent power of the Court to re-open a Rule, which has not been disposed of on a consideration of the grounds of the Rule, cannot be sustained, and we have been able to find no case decided either in this country or in England which lays down the proposition that the Court is precluded from hearing, determining and giving a judgment in a case merely because it has made an order disposing of it in default of appearance. The language of the English cases is inconsistent with such proposition. The case of Walker v. Budden(1879) 5 Q.B.D. 627 appears to recognise the power of the Court to re-hear a case which has been determined even in the absence of only one of the parties. In the present case there has been no judgment. The Court has not considered the grounds on which the Rule was granted. It has not come to the conclusion whether all or any of those grounds fail. It was open to the Court under the provisions of Section 440 of the Code of Criminal Procedure to determine the questions raised by the Rule without hearing counsel or pleader for or against the Rule. This, the learned Judges did not do, for it appears on the face of their order that the order was made only because no one appeared.
8. Under these circumstances, we think, the Court had the power to order the case to be restored to the list and heard. We hold, therefore, that we have jurisdiction to hear, to determine and to give a judgment in this case. We do not re-hear it because it has never been heard nor do we review the judgment because no judgment has ever been given.
9. The preliminary objection is overruled.
10. [Their Lordships then dealt with the merits of the case and discharged the Rule.]