Skip to content


Kalipada Jana and ors. Vs. Sarbeswar Panda and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Case NumberCriminal Revn. No. 322 of 1958
Judge
Reported inAIR1958Cal568,1958CriLJ1312
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 369, 439 and 440
AppellantKalipada Jana and ors.
RespondentSarbeswar Panda and ors.
Appellant AdvocateJ.M. Bnerjee and ;Archana Sen, Advs.
Respondent AdvocateB.K. Panda, Adv.
DispositionApplication dismissed
Cases ReferredU. J. S. Chopra v. State of Bombay
Excerpt:
- .....case no. 322 of 1958 who were members of the second party in a proceeding under section 145 of the code of criminal procedure. this rule was made returnable in two weeks and it came up for hearing on the daily list on 25th of march, 1958. on that day mr. b. k. panda, advocate appeared before me and prayed for adjournment of the case, stating that he had instruction to appear in the case on behalf of the opposite parties but had not till then received any vakalatnama. i adjourned the case for the day and did not take it up until 27th of march, 1958 on which day nobody appeared on behalf of the opposite parties. the case was thereafter heard in full and i ordered the case to be sent back for rehearing.2. in the present petition, which has been sworn to by one bejoy krishna panda, brother.....
Judgment:
ORDER

1. This is an application by Sarbeswar Panda who was opposite party No, 1 in Criminal Revision Case No. 322 of 1958 and is with notice to the learned Advocate for the petitioners in that Revision case. The application has been made under very unusual circumstances. On 11th of March, 1958 I issued a Rule in favour of the petitioners in Cr. Revn. Case No. 322 of 1958 who were members of the second party in a proceeding under Section 145 of the Code of Criminal Procedure. This Rule was made returnable in two weeks and it came up for hearing on the daily list on 25th of March, 1958. On that day Mr. B. K. Panda, Advocate appeared before me and prayed for adjournment of the case, stating that he had instruction to appear in the case on behalf of the opposite parties but had not till then received any Vakalatnama. I adjourned the case for the day and did not take it up until 27th of March, 1958 on which day nobody appeared on behalf of the opposite parties. The case was thereafter heard in full and I ordered the case to be sent back for rehearing.

2. In the present petition, which has been sworn to by one Bejoy Krishna Panda, brother of the petitioner, it is stated that the notice of the Rule in Criminal Revision No. 322 of 1958 was served on 27th of March, 1958 by the processserver by hanging in the absence of the petitioner. It is also alleged that the return of service as made by the process-server to the effect that he served the same on 21st March, 1958 is false. It may be stated here that the present petition has been made by Sarbeswar Panda who was one of the 6 opposite parties in Revision Case No. 322 of 1958. It is not however, stated that there was no service on the five other opposite parties. In paragraphs 6 and 7 of the present petition it is stated that the petitioner was at the time of the alleged service not at Mirzapur in the District of Midnapore but he was at Kamalpur, Police Station Sagar in Sundarbans where he was suffering from fever. It is further averred that his brother Bejoy Krishna Panda sent one Jhareswar Das to the petitioner at Kamalpur informing about the Rule that was issued. The petitioner states that he got the information from Jhareswar Das on the evening of 24th March and instructed the said Jhareswar Das to inform his brother Bejoy Krishna Panda to take steps in the matter. Thereafter Bejoy Krishna Panda started for Calcutta on the night of 24th March and reached Calcutta on the morning of 25th March 1958. It is significant to note that although the petitioner instructed his brother . Bejoy Krishna Panda to go to Calcutta, he did not send any Vakalatnama to enable the learned Advocate to enter appearance on his behalf. I do not understand why it was impossible for the petitioner to send the Vakalatnama through Jhareswar to his brother Bejoy Krishna Panda for making it over to the learned Advocate. Mr. Panda on 25th of March, 1958 was stated to have been instructed by Bejoy to pray for adjournment of the case for one week. It appears that on 27th of March, the Vakalatnama did not reach the learned Advocate. It is not necessary to go into the question whether or not there was a proper service upon the petitioner in view of the admitted fact that the petitioner on 24th of March, 1958 was fully apprised of a Rule having been issued by this Court. Why the other five petitioners or any of them did not think it fit to enter appearance is not mentioned in the present petition. It will be seen that when I disposed of the case I took no notice of the fact that the opposite parties had not appeared but went into the matter in full on an examination of the records.

3. Apart from the facts stated above, the main question is, Has the Court any jurisdiction to set aside or review its own judgment or order which has already been signed? In this connection reference may be made to Section 440 of the Code of Criminal Procedure which gives no party any right to be heard either personally or by pleader before any Court when exercising its power of Revision. Reference may also be made to Sections 369 and 561-A of the Code. Section 369 is in the following terms :

'Save as otherwise provided by the Code or by any other law for the time being in force or in the case of a High Court...... by the Letters Patent or other instrument constituting such High Courtno Court when it has signed its judgment, shall alter or review the same except ........ to correct a clerical error'.

4. In the case of F.W. Gibbons, ILR 14 Cal 42 (FB) (A), it was held that the judgment of a Bench of the High Court is absolutely final and as soon as it has been pronounced and signed by the Judge, the High Court becomes '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. In that case Section 369 of the Code came up for consideration. Section 369, as it then stood was 'No Court other than a High Court when it has signed its judgment shall alter or review the same except as provided for under Section 395 or to correct a clerical error'. This Full Bench decision was followed in the case of Rajab Ali v. Emperor, ILR 46 Cal 60: (AIR 1919 Cal 409) (B). In the case of Banwari Lal v. Emperor : AIR1935All460 , the Division Bench of the Allahabad High Court consisting of Kendall and Bajpai, JJ., held that the High Court had no power to review on order passed by itself in exercise of its revisional jurisdiction. It possessed no inherent power to review its judgment before this amendment in 1923 and it cannot he said that Section 561-A of the Code of Criminal Procedure either modified the provision of Section 369 of the Code or clothed the Code with any fresh power. In that case Section 369 of the Code before its amendment in 1923 came up for consideration and their Lordships held that even before the amendment the section was not interpreted to mean that the High Court had an inherent power of reviewing an order passed by itself in Revision. It follows, therefore, that when the section 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, the Legislature did not attempt or intend to deprive the High Court of any inherent power which it had hitherto possessed. In the case of Edward Few v. Emperor, 40 Cri LJ 763; (AIR 1939 Lah 244) (D), Abdul Rashid, J., of the Lahore High Court held that there was no conflict between Section 369 and Section 561-A of the Code of Criminal Procedure. The High Court had no power to alter or review its own judgment in Criminal case once it had been signed except in case where it was passed without jurisdiction or default in appearance without adjudication on the merits or to correct a clerical error. In such a case the only authority that can interfere is the Provincial Government. In the case of Dahu Raut v. Emperor : AIR1933Cal870 , Lort Williams, J., sitting with McNair, J. held that the Court when it has signed its judgment, had no power to alter or review it except to correct a clerical error. In the case of Queen Empress v. C. P. Fox, ILR 10 Bom 176 (F), the Full Bench of the High Court of Bombay held that the High Court has not under Section 439, Cr. P. C. any power to review its judgment pronounced in a Criminal case in revision.

5. Certain cases were cited before me by Mr. B. K. Panda appearing on behalf of the petitioner in support of his case. The first case cited was the case of Muhammad Sadiq v. Emperor, 26 Cr LJ 1169: (AIR 1925 Lah 355) (G). This is a decision by Scott-Smith, J., sitting with Zafar Ali, J. of the Lahore High Court in a case where an appeal presented under Section 419 of the Code of Criminal Procedure was dismissed by a Judge of the Lahore High Court without the appellant having had a reasonable opportunity of being heard in accordance with the provisions of proviso to Section 421, Sub-s. (1) of the Code of Criminal Procedure. The decision in that case is hardly applicable to the facts of the present case. The proviso to Section 421, Sub-section (1) of the Code of Criminal Procedure is a statutory obligation to afford a reasonable opportunity to the appellant or his pleader being heard and no appeal presented under Section 419 of the Code shall be dismissed without giving the appellant or his pleader such an opportunity. It must be observed that the decision is no authority in a case where revisional jurisdiction is exercised. In the next place, it gives a right to the appellant or his pleader being heard. In the present case the petitioner was only an opposite party in the Revision case, and he had no statutory right to be heart in view of the provisions of Section 440 of the Code.

6. The case of ILR 46 Cal 60: (AIR 1919 Cal 409) (B), which was also cited by Mr. Panda does not help him at all. On the contrary it lays down that the High Court has no power to review an order passed in its Criminal Appellate Jurisdiction rejecting the appeal summarily. This case, as I have already stated above, followed the decision of the Full Bench in Gibbon's case. Lastly, the case of U. J. S. Chopra v. State of Bombay, : 1955CriLJ1410 , has been cited. I do not think the facts of that case have any resemblance to the facts which are now being considered. In the Supreme Court case, the appeal of the convicted person was summarily dismissed by the High Court. After dismissal of the appeal the State of Bombay moved the High Court for enhancement of the sentence. Notice was issued upon the accused under Section 439, Sub-section (2) of the Code and at the time of the hearing, the learned Counsel for the accused was permitted to argue for an acquittal of his client under Section 439, Sub-section (6) of the Code. Das, C. J., held that the judgment of conviction by High Court was final so far as the accused was concerned, and he could not initiate any further revisional application either against his conviction or for reduction of sentence but it was not final so far as the State was concerned. Since the State applied for enhancement of the sentence, the accused was entitled to challenge his conviction as he was placed in fresh jeopardy by reason of the application for enhancement of sentence passed on him. This case, therefore, is no authority for the proposition that is now being canvassed.

7. In my view Mr. Panda has not been able to cite to me any authority to show that after a final order has been passed and signed, the Court) has any jurisdiction to review or alter the same. In my judgment this application is entirely misconceived and cannot be entertained. If the petitioner felt aggrieved by the order passed in Criminal Revision case No. 322 of 1958 his remedy lay elsewhere and not by a petition of the nature that has been filed. This application, therefore, fails and must be dismissed.

8. Mr. Banerjee pointed out to me Section 148, Sub-section (3) and invited me to consider whether costsshould be awarded to his client in this case, for the hearing of this present application, which was with notice to him and in which case he had appeared.

9. In view of the circumstances of this case, I do not think that I should pass any order for costs of this application.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //