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Karam Das Sautha Vs. Sangat Ram - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtHimachal Pradesh High Court
Decided On
Case NumberCriminal Review No. 7 of 1964
Judge
Reported inAIR1964HP37,1964CriLJ679
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 430, 439 and 561A; ;Indian Penal Code (IPC) - Section 436
AppellantKaram Das Sautha
RespondentSangat Ram
Appellant Advocate K.S. Sauhta, Adv.; K.C. Pandit, Govt. Adv.
Respondent AdvocateParty in person
DispositionPetition dismissed
Cases ReferredState of Uttar Pradesh v. Mohammad Naim
Excerpt:
- .....held in sankatha singh v. state of uttar pradesh, air 1962 sc 1208, that an appellate court has no power to review its order passed in an appeal or to restore an appeal which has been disposed of.10. the learned counsel for the petitioner contended that this court has got inherent power, under section 561-a cr. p. c., to review its order, passed in the appeal. the scope of the inherent power of the high court was examined in talab haji hussain v. madukar purshottam mond-kar, air 1958 sc 376, wherein it was said :-'this inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the code. it cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the code, it is only if the matter in question is not.....
Judgment:
ORDER

Om Parkash, J.C.

1. This is a petition for review of the judgment, dated the 12th December, 1963, of this Court,delivered in Criminal Appeal No. 25/63, filed by SangatRam respondent, and for expunging of remarks, from thatjudgment. The facts, out of which, that appeal had arisen,were as follows:-

2. Sangat Ram was a salesman ef the Vijai Multipurpose Co-operative Society, Dhar. The petitioner was the President of that Society. On checking of the accounts of the Society, by the petitioner, it was discovered that Sangat Ram had embezzled an amount of Rs. 509.09 nP. Sangat Ram, out of grudge, against the petitioner, had set fire to his houses, situated in village Dhar, on the night between 22nd and 23rd December, 1962, which had resulted in the gutting of 28 houses of the inhabitants of that village and in a loss of Rupees six or seven lacs.

3. Sangat Ram was challaned and committed to the Sessions to stand trial for an offence under Section 436 I. P. C. The case was tried by the learned Assistant Sessions Judge, Mahasu. Sangat Ram pleaded guilty to the charge, framed against him, tinder Section 436 I. P. C. He admitted that he had set fire to the houses of the petitioner. While pleading guilty to the charge, Sangat Ram had made a detailed statement as to why he had set fire to the house of the petitioner.

4. The learned Assistant Sessions Judge accepted the plea of guilty, made by Sangat Ram, and convicted him under Section 436 I. C. P. Sangat Ram was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 1000/-.

5. Sagant Ram filed Criminal Appeal No. 25/63, in this Court. His only submission, in the appeal, was that he was a very poor man and was unable to pay the fine of Rs. 1000/- and that it may be remitted. Notice of the appeal was issued to the State. After hearing Sangat Ram and the learned Government Advocate, this Court remitted the sentence of fine of Rs. 1000/-, holding that it was not proper, in case of Sangat Ram, who was a mere salesman, to add a sentence of fine to a substantial term of imprisonment. The appeal was allowed to the extent that the sentence of fine of Rs. 1000/- was set aside.

6. The petitioner has put in the present petition, with two prayers. The first prayer is that this Court may review its judgment, passed in appeal, and restore the sentence of fine. The second prayer is that remarks and allegations, made against the petitioner, in the judgment, may be expunged. The petition does not specify the remarks and the allegations which are sought to be expunged.

7. Sangat Ram was impleaded, as a respondent, in the petition. On an application of the petitioner, notice of the petition, was issued to the learned Government Advocate, as well. Both Sangat Ram and the learned Government Advocate have opposed the petition.

8. The first prayer, in the petition, raises the question whether this Court is competent to review its judgment, passed in an appeal, and if so, on what grounds.Section 369 Cr. P. C. provides, omitting the portion whichis not material, that no Court, when it has sigsed itsjudgment, shall alter or review the same except to correcta clerical error. This section does not, by itself, applyto the judgment of an appellate Court but is applicableonly to the Judgments, pronounced by trial Courts, including the High Court in the exercise of its original criminal jurisdiction, vide the observations of Dass J., inU. J. S. Chopra v. State of Bombay, (S) AIR 1955 SC 633,on page, 639. The principles, embodied in Section 369 Cr.P. C., are made applicable to the judgment of an appellateCourt other than a High Court, by Section 424 Cr. P. C. Section 430 Cr. P. C. provides for the finality of orders onappeal. This section lays down that judgments andorders, passed by an appellate Court, on appeal, shallbe final except in the cases provided for in Section 417 andChapter XXXII. Section 430 Cr. P. C. attaches finalityto the judgment of a Court, passed on appeal, includingthe appellate judgment of the High Court. Their Lordships, Bhagwati and Imam JJ., observed in (S) AIR 1955SC 633, supra that:-

'Once such a judgment has been pronounced by the High Court either in the exercise of its appellate or its revisional jurisdiction no review or revision can be entertained against that judgment and there is no provision in the Criminal Procedure Code which would enable even the High Court to review the same or to exercise revisional jurisdiction over the same.' (Page 648)

9. These weighty observations of their Lordships are an authority for holding that a judgment, passed by a High Court, on appeal, is final and cannot be reviewed by that Court. It was held in Sankatha Singh v. State of Uttar Pradesh, AIR 1962 SC 1208, that an appellate Court has no power to review its order passed in an appeal or to restore an appeal which has been disposed of.

10. The learned counsel for the petitioner contended that this Court has got inherent power, under Section 561-A Cr. P. C., to review its order, passed in the appeal. The scope of the inherent power of the High Court was examined in Talab Haji Hussain v. Madukar Purshottam Mond-kar, AIR 1958 SC 376, wherein it was said :-

'This inherent power cannot naturally be invoked in respect of any matter covered by the specific provisions of the Code. It cannot also be invoked if its exercise would be inconsistent with any of the specific provisions of the Code, it is only if the matter in question is not covered by any specific provisions of the Code that S. 561-A can come into operation, subject further to the requirement that the exercise of such power must serve either of the three purposes mentioned in the said section. In prescribing rules of procedure legislature undoubtedly attempts to provide for all cases that are likely to arise; but it is not possible that any legislative enactment, dealing with procedure, however carefully it may be drafted, would succeed in providing for all cases that may possibly arise in future. Lacunae are sometimes discovered in procedural law and it is to cover such lacunae and to deal with cases where such lacunae are discovered that procedural law invariably recognizes the existence of inherent power in Courts.'

11. In the present case, review of the judgment of this Court, is sought on the ground that the order of this Court, remitting fine, was illegal, as it violated the mandatory provisions of Section 436 I. P. C., according to which it is obligatory for the Court to impose a sentence of fine in addition to the sentence of imprisonment. This ground is not based on any procedural lacuna. The review of the judgment, on this ground, will be inconsistent with the provisions of Section 430 Cr. P. C. Inherent power of the Court cannot be invoked in such a case. Further, the review of the judgment will not serve either of the three purposes, mentioned in Section 561-A Cr. P. C.

12. The only cases, in which an appellate judgment, may be reviewed, tinder the inherent power of the Court, will be where the judgment was without jurisdiction or was delivered without affording an opportunity of oeing heard to the parties cancerned, or some clerical error crept into the judgment. The following observations, made, in State v. Kunjan Pillai, AIR 1952 Trav-Co. 210 (FB), may be cited, in this connection :-

'The High Court has no power to review or alter its judgment in a criminal case except in the case mentioned in Section 369 or where the Court has acted without jurisdiction, or where it has decided the case without giving an opportunity to a party for being heard, and Section 561-A does not confer on the High Court any such power. In the case of absence of jurisdiction the judgment can be treated as one not valid in law and the passing of a fresh judgment cannot in strict sense be regarded as altering or reviewing a prior judgment. With regard tocases in which the parties were not given an opportunity for being heard, it may be taken to be an implied condition of such judgment or order that it should be open to reconsideration at the instance of the party prejudicially affected. The power of the Court to reconsider the matter is implied in the very nature of an 'ex parte' decision.'

13. It was urged, on behalf of the petitioner, that he was not afforded an opportunity to be heard at the time of the appeal and that the judgment, against him, was ex parte, and was liable to be reviewed. It is true that no notice of the appeal was issued to the petitioner. But he was not entitled to notice under any provision of law. Notice was required to be issued to the State only. Such notice was issued and the learned Government Advocate was heard. The judgment, in appeal, was given after hearing the parties, concerned. The fact that no notice was issued to the petitioner, who was not entitled to be heard, in the appeal, does not constitute any ground for review.

14. The authorities, cited by the learned counsel for the petitioner, may be considered. The first case, cited, was Shobhanu v. Kishnu, AIR 1954 Him-Pra 86. In that case, an order passed in revision, was sought to be reviewed. The review petition was dismissed. This authority does not help the petitioner. The second case, relied upon, was the State of Uttar Pradesh v. Bati, AIR 1950 All 625. It was held, in that case, that where the mandatory provisions of the law have been overlooked the Court has pflwer to correct such an error even though the case has already been decided. The correctness of thel decision, in this case, is open to doubt, in view of the observations, made by their Lordships of the Supreme Court, in (S) AIR 1955 SC 633, supra. The third case, relied upon, was, In re Biyamma, AIR 1963 Mys 326. It was held in that case that a High Court has inherent power to alter or review its appellate judgment and that where under a total misapprehension of facts the High Court proceeded on the basis that there had been an infringement of natural Justice and had not considered the appeal on merits, the ends of justice required that the High Court should review its order and hear the appeal on merits. It appears that the weighty observations of Bhagwati and Imam JJ., in (S) AIR 1955 SC 633,were not considered in the case.

15. In my opinion, the inherent power of this Court, cannot be invoked, to review its judgment, passed, in the appeal on the ground, that this Court acted illegally in remitting the sentence of fine. The first prayer for review of the judgment is rejected.

16. I come to the second prayer, for expunging of remarks. It is, now well-settled that a High Court has got inherent jurisdiction to expunge remarks, made by it, if it be necessary to prevent abuse of the process of the Court or otherwise to secure the ends of justice; but the jurisdiction is of an exceptional nature and has to be exercised in exceptional cases, only, vide State of Uttar Pradesh v. Mohammad Naim, AIR 1964 SC 703. As already stated, the remarks, sought to be expunged from the judgment of this Court have not been set forth in the petition. During the course of arguments, the learned counsel for the petitioner, stated that the reference, made, by this Court, to the statement, made by SangatRam, wherein he had stated that the petitioner has not paid his remuneration for coaching his children for two years and also had not paid his salary, as a salesman, for thirteen months, may be expunged, from the judgment, as the allegations were baseless and unfounded and cast an aspersion on the petitioner. The only evidence, on the record of the trial Court, against Sangat Ram, was his plea of guilty. While pleading guilty, Sangat Ram had made a detailed statement why he had set fire to the houses of the petitioner. This Court, in its Judgment, made a reference to a portion of that statement, without in any way countenancing whether the allegationsmade in the statement were correct. This Court did not pass any adverse remarks against the petitioner; nor did it record any adverse finding against him. This Court had simply referred to the plea of guilty and the statement made by Sangat Ram. The reference constitutes an intergral part of the judgment of this Court and cannot be expunged from it.

17. In conclusion, the petition is dismissed.


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