1. Some weeks ago a complaint was made in Court to the Acting Chief Justice by the Deputy Legal Remembrancer that certain orders passed by my learned brother and myself were illegal and made without jurisdiction. No petition or affidavit was filed, and the process was wholly irregular, as the Deputy Legal Remembrancer, and the Legal Remembrancer who instructed him, ought to have known. The Acting Chief Justice quite properly decided that he had no jurisdiction whatsoever to interfere with the orders of the Division Bench. But as I had heard about the complaint, and expressed my willingness to consider the matter further, he directed that my learned brother and myself should form a Division Bench, when the Crown could mention the matter, if it was so advised. I fail to understand what was the object of making a complaint to the Acting Chief Justice, or what interest he was alleged to have in the matter. Such a procedure was an act of disrespect to the Court, directly to the Division Bench, and indirectly to the Acting Chief Justice. No complaint had been made to us by the Deputy Legal Remembrancer or anyone else, and the Deputy Legal Remembrancer presumably, and the Legal Remembrancer who instructed turn, had some knowledge of the legal position, which was stated with clarity and precision by Sir Comer Petheram, C.J., and a Full Bench in In the matter of the petition of F. W, Gibbons (1887) 14 Cal 42, decided so far back as the year 1886, which decision no one since has seriously attempted to question.
2. A judgment of two Judges of this Court sitting as a Criminal Bench is a judgment of the High Court of judicature at Fort William in Bengal, and no other Judge or Bench of Judges of this Court has power to override such judgment. The judicial powers of the Chief Justice are not greater than or different from, but exactly the same as, those of any other Judge of the Court. On this point reference may be made to the case of Empress v. Khagendra Nath Banerji (1898) 2 CWN 481. Moreover, in my opinion the Court when it has signed its judgment has no power to alter or review it, except to correct a clerical error. (Section 369, Criminal P.C.) The four orders to which exception has been taken were as follows.
3. Appeal No. 326 of 1933.-The form of the order was 'the appeal is admitted. The sentence passed on the appellant is reduced to six months' rigorous imprisonment.' That was a case in which the appellant, who was a farash working in the Imperial Secretariat Buildings, and a young man with no previous conviction, was convicted of stealing some bags containing bundles of forms, which he asserted were waste paper, but which the prosecution said were unused and current forms. In the circumstances we thought that six months' rigorous imprisonment was ample.
4. Appeal No. 340 of 1933.-In this case the order was 'the appeal is admitted.' The appellant was a young man with good antecedents and no previous conviction, who had been convicted under Section 420, I.P.C. He had ordered certain goods and issued two worthless cheques. The goods were seized at the railway station and the complainant suffered no loss. In view of the age of the accused, and the fact that the complainant was willing to compound the offence we reduced the sentence of imprisonment for one year, to a sentence of imprisonment for six months, though we said that the Chief Presidency Magistrate was quite justified in passing the sentence which he did. In our opinion, in view of all the circumstances and the appellant being only 22, a Sentence of six months was sufficient.
5. Appeal No. 407 of 1933.-There were three appellants in this case, and they had been convicted under the Indian Registration Act and the Indian Penal Code for forgery and conspiracy in respect of a kabala. No. 1 had been sentenced to five years for conspiracy and three years under the Indian Registration Act, the sentences to run consecutively. No. 2 had been sentenced to six years, and No. 3 to five years. We want carefully through the charge, and we saw no reason for discriminating between the three accused, and we thought that five years rigorous imprisonment was sufficient for each of them. We therefore directed the two sentences against No. 1 to run concurrently and not consecutively, and reduced the sentence of No. 2 to five years. We did not interfere with the sentence of No. 3. The result was that each of the appellants became liable to five years' rigorous imprisonment. Nothing was said in this order about dismissing or admitting the appeal.
6. Appeal No. 432 of 1933.-The appellant had been convicted under Section 436, I.P.C., and sentenced to four and a half years' rigorous imprisonment and a fine of Rs. 100, or in default to rigorous imprisonment for six months more. The sentences of imprisonment to run concurrently. The order stated that the appeal was allowed on the question of sentence only. We thought fit to point out that the Judge must have made some mistake in the sentences, because he first inflicted rigorous imprisonment for four and a half years and a fine of Rs. 100 or in default six months' rigorous imprisonment, which was to be in addition to the four and a half years making five years in all. But he went on to say that the sentences of imprisonment should run concurrently. The latter part of his order therefore contradicted the former part. Further there was no provision that the fine should be paid as compensation to the complainant. We drew attention to the fact that the Court had repeatedly said that there was no object in inflicting a fine as well as a long term of imprisonment, except where the fine was to be used for the purpose of compensation, and in other special cases to which we had referred in past decisions of the Court. We went on to say that in the circumstances of the present case the only reason for inflicting a fine would be that it should be paid as compensation to the person whose house was burnt. Therefore we confirmed the conviction, but altered the sentence to a term of rigorous imprisonment for four years and a fine of Rs. 100 which, if realized, was to be paid as compensation to the person whose house was burnt: in default of payment of the fine, the accused was to undergo a further period of imprisonment for six months; that is to say, in default of payment of the fine he was to undergo, in all 4 years, rigorous imprisonment, which was exactly the term of imprisonment which the Magistrate intended to inflict upon him.
7. It is complained that as the appeals were admitted, the usual notices ought to have been given, and the appeal heard as provided in Sections 422 and 423, Criminal P.C. In each of these orders as drawn up there, are clerical errors, and the form of the order is not in accordance with the judgment which I gave. This was overlooked when the orders were signed -what I said was, that there was no necessity to send for the record-and then I proceeded to give reasons why the sentences ought to be modified. According to my recollection nothing was said about admitting or dismissing the appeal, but the effect of the order was, that the appeal was dismissed summarily under Section 421, Criminal P.C., and the sentence was varied under the Court's revisional powers, the proceedings having otherwise come to its knowledge within the meaning of Section 439, Criminal P.C.
8. This kind of order is not the usual one of admission or rejection of the appeal and doubt seems to have arisen in the mind of the Bench Clerk, and in the office, about the correct form of the order. In future the senior Judge of the Criminal Bench should be consulted, when any doubt or difficulty arises about the form of the judgment of the Court. A number of similar orders were made by the criminal Bench over which I presided two years ago, and no complaint was made by the Crown or by anyone. This form of order is convenient and useful, and is intended to save unnecessary waste of time, labour and expense, which is a matter not to be lightly disregarded in these difficult days. Where the Court is satisfied that the conviction was justified, but thicks that there may be grounds for reduction of sentence, it will generally invite the Crown and the appellant, or either of them, to furnish information in order to assist the Court to arrive at a decision. In such a case, the practice is to admit the appeal on the question of sentence only, though it is doubtful whether this procedure is strictly within the provisions of the Code. But where the Court does not require any further information on the point, it would be merely a waste of time, money and labour, to issue notices, and send for records, and summon parties whom the Court does not wish to hear.
9. It must be remembered that the question of punishment is peculiarly a matter for the Court. In revision the Crown has no right to seek to influence the Court on this question unless invited by the Court to do so. The Deputy Legal Remembrancer must have overlooked this, when he complained to the Acting Chief Justice that he had a great deal to say upon the subject in connexion with the four sentences to which I have referred. The Court always hears him with patience, but in revision neither party has any right of audience, though no order must be made to the prejudice of the accused, unless he has had an opportunity of being heard: Sections 439 and 440, Criminal P.C. I am satisfied that the Court has jurisdiction to proceed as it did. If such procedure were not strictly within the provisions of the Code provision for it ought to be made without delay. But in my opinion we have the power already. The powers of the Court in revision are almost unlimited. In particular it has all the powers conferred on a Court of appeal by Sections 423, 426, 427 and 428, Criminal P.C. In an appeal under Section 423 the Court has no power to enhance the sentence, but it may do so in the exercise of its revisional powers. If the Court has power to enhance the sentence in revision, surely it has power to modify or reduce it. The Court when hearing an appeal may alter the finding, and then under its revisional powers enhance the sentence: see the case of Re Bali Reddi AIR 1914 Mad 258. In the case of Hridoy Mondal v. Emperor (1918) 22 CWN 111 (N) the accused had pleaded guilty to murder, and had been sentenced to transportation for life, and had appealed. The Court dismissed the appeal, because ho had pleaded guilty, and the minimum sentence had been passed, but in exercise of its revisional powers, the Court altered the conviction to one under Section 304, I.P.C., and sentenced the appellant to seven years' rigorous imprisonment.
10. The Acting Advocate-General has not attempted to support the procedure before the Acting Chief Justice, but he has argued that the orders were illegal being made without jurisdiction. He contends that the Court has two alternatives only, and must either dismiss an appeal summarily under Section 421, Criminal P.C., or cause notices to be given and hear the appeal under Section 422. Further he contends that in such circumstances the Court cannot exercise its revisional powers under Section 439, because it cannot dismiss an appeal summarily unless it thinks that there is no sufficient ground for interfering (Section 421). Assuming that the Court has acted without jurisdiction, then he contends that it has power to treat the illegal orders as being void ab initio, and to rehear the matter on its merits, and he has referred us to the case of In re Soma Naidu AIR 1924 Mad 640, and to the case of Ramesh Pada Mandal v. Kadambini Dassi : AIR1927Cal702 , and other cases. This must mean that any Judge or Bench of this Court may treat not only his or its own orders, but the orders of any other Judge or Bench of the Court, as having been made without jurisdiction, and being void ab initio and rehear the matter on its merits.
11. There is no magic in the fact that the same two Judges are sitting together, as at the time when the alleged illegal orders were made. We have no greater and no less power than any other Bench of this Court. After we had signed the orders we were functus officio, and when we ceased to sit together, the Bench of which we were members, ceased to exist, and could not ever be revived. If one Bench had power to decide that the orders of another Bench were made without jurisdiction and were void ab initio, a third Bench would have power to decide that the orders of the second Bench also, were made without jurisdiction, and so on ad infinitum. Moreover if the Chief Justice disapproved of the decision of any Bench, he could appoint another Bench to overrule it, as being made without jurisdiction, or could appoint himself, to sit with another Judge, and this actually was done once by Sir Barnes Peacock in a case mentioned in In the matter of Abdul Sobhan (1882) 8 Cal 63. I think it is clear that the cases to which we have been referred were wrongly decided, and in my opinion the only remedy in such circumstances is to move the Local Government to exercise the Royal prerogative where the accused has been prejudiced-otherwise there is no remedy.
12. The orders, as drawn up, in these four cases not being in accordance with the judgment which I gave, I am clearly of opinion that we have power to correct the errors which appear in them. They are mere errors of draftsmanship, and therefore clerical errors within the meaning of Sections 369 and 561-A, Criminal P.C. As however my learned brother does not agree, and as I have no powers acting singly to correct what is in form a joint order, they must stand uncorrected. The errors are only technical, and no injustice has been done to anyone, therefore the ends of justice do not necessitate any correction.
13. The Advocate General has mentioned to this Bench four matters in which he suggested that my learned brother and I, when previously sitting as a criminal Bench, passed orders which are not in conformity with the provisions of the Criminal Procedure Code. No substantive application is before us. The learned Advocate-General in mentioning these matters stated that, in each case in which the orders referred to were passed, there was an application by the accused for admission of an appeal and an order was made admitting the appeal and reducing the sentence without issuing notice upon the Crown. The facts of each case and the orders made have been referred to in detail by my learned brother and it is unnecessary for me to analyze the exact procedure which was adopted, or the reasons which prompted us to make the orders. It may well be, as stated by my learned brother, that we intended to dismiss the appeals and to deal with the question of sentence under our powers of revision. The orders, as worded, purport to show that the appeals were admitted and the sentences reduced. The question that has been raised is whether this Court having once made such an order has power either as a criminal Bench or as any other Bench to alter or review that order except to correct a clerical error. I very much regret that I am unable to agree with my learned brother that this was a mere clerical error.
14. I am unable to say definitely at this distance of time what was the particular form of procedure adopted, but my impression is that at least on one occasion we stated that we admitted the appeal on the question of sentence only, and that in the particular circumstances of the case we did not think it either desirable or expedient to put the accused and the Crown to the expense of a further hearing when we disagreed with the lower Court only in regard to the severity of the sentence. If I am correct in my recollection no clerical error arose in that case. The two sections of the Criminal Procedure Code under which we are invited to review our decision are Sections 369 and 561-A.S. 369 is 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.
15. Section 561-A provides thus:
Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
16. With great respect I am entirely in agreement with the view that was expressed by the Lahore High Court in Raju v. Emperor AIR 1928 Lah 462 that Section 561-A in no way adds to the powers of the High Court. It merely declares that such inherent powers as the Court may possess shall not be deemed to be limited or affected by anything contained in the Code. The inherent powers of the Court do not include the power to review an order which has been made in the criminal appellate jurisdiction. We are therefore compelled to look to Section 369 to see whether the power of review is contained in that section. I have no doubt that the intention of this section is to debar the High Court from reviewing its own judgment in criminal matters. The only exception which is permitted is in the case of a clerical error. It is essential even in civil matters that there should be finality in the orders of the Court, and in criminal matters it is obvious that such finality is of even greater importance, and in my opinion the object of this section is to procure such finality. The provisions of Section 369 were carefully considered by the Full Bench of this Court in In the matter of, Gibbons (1887) 14 Cal 42 where it was held that no power of review resides in the Court or in any Bench of the Court. Every Division Bench when constituted in a criminal case is a Court in itself and once its judgment has been signed
this court is functus officio and neither the Court itself nor any Bench of it has any power to review that decision or interfere with it in any way.
17. Were it otherwise, no finality could be ensured, for at any time a Division Bench might be constituted which under the guise of review might reverse or interfere with the orders passed by a previous Bench. Moreover it seems to me impossible to say that a Bench which has once been constituted and then dissolved can be reconstituted at a much later date and be called the same Bench because it is composed of the same Judges. Even if the same Bench has powers of review, which I doubt, I am convinced that no such powers of review survive when that Bench has been dissolved. 1 am unable to accede to the argument of the learned Advocate-General that the orders passed were without jurisdiction and in any event I am satisfied that there is no power in this Court to review them.