VAFATI GOKUL v. STATE — 1966 DIGILAW 87 (GUJ)

A. D. DESAI, B. J. DIVAN, J. ( 1 ) THIS is an application filed by original accused in Ahmedabad City Sessions Court Case No. 72 of 1963. The applicant was charged under sec. 302 of the Indian Penal Code for intentionally causing death of one Shankar Budhi by giving him blows on his head with an iron pipe and fracturing his skull. The City Sessions Judge Ahmedabad after regular trial convicted the accused by his judgment and order of conviction dated October 14 1963 and sentenced him to suffer imprisonment for life for an offence punishable under sec. 302 of the Indian Penal Code. The accused was defended in the said Sessions Case by his Advocate Shri K. K. Shivhare. ( 2 ) BEING aggrieved by the said judgment and order of conviction dated October 14 1963 passed by the City Sessions Judge the accused preferred an appeal to this Court being Criminal Appeal No. 1000 of 1963. The said appeal was filed through his advocate Shri K. K. Shivhare. The appeal was fixed for preliminary hearing under sec. 421 of the Criminal Procedure Code on October 28 1963 and the same was argued by Shri K. K. Shivhare. A Bench consisting of Divan and Mehta JJ. who heard the appeal dismissed the same summarily. A writ intimating that the appeal was dismissed was sent to the Sessions Court on October 28 1963 In the memo of appeal there was a prayer for bail and the Assistant Government Pleader appeared only to oppose the prayer of bail. ( 3 ) THE accused has now preferred this application alleging that a few days back the applicant read in the papers that Shri K. K. Gupta who was appearing for accused in Sanyal Murder Case at Delhi was truly K. K. Shivhare who represented himself to be an advocate and appeared as such in Ahmedabad Courts and also for the applicant in Sessions Case as well as in the appeal and that he was not a lawyer at all. He further alleged that after it transpired that K. K. Gupta (Shivhare) was not a lawyer a fresh trial was ordered in Sanyal Murder Case on the ground that the person appearing for accused was not a qualified lawyer and that a trial in which the accused were defended by a person having no qualification was no trial at all. He further alleged that after it transpired that K. K. Gupta (Shivhare) was not a lawyer a fresh trial was ordered in Sanyal Murder Case on the ground that the person appearing for accused was not a qualified lawyer and that a trial in which the accused were defended by a person having no qualification was no trial at all. The applicant further alleged that if he had known that K. K. Shivhare was not an advocate he would not have engaged him as his advocate for the Sessions Case and also for the appeal. K. K. Shivhare not being an advocate was incompetent to defend the applicant. K. K. Shivhare practiced fraud on the Court and on the applicant appeared as an advocate for the applicant in the Sessions Case as well as in the appeal and thus deprived the applicant of a valuable right to have legal assistance in his trial and this according to the applicant had led to a serious procedural defect which resulted in failure of justice vitiating the whole trial. The applicant further alleged that there was no fair trial in the eye of law and his defence was materially prejudiced in view of the fact that Shivhare who conducted the matter was not an advocate possessing requisite qualification or skill to defend the applicant particularly as the offence alleged was a serious offence punishable under sec. 302 of the Indian Penal Code. Ordinarily when an accused is unable to engage a lawyer of his own he is always provided a lawyer by the State at the state expense. According to the applicant this resulted in miscarriage of justice and incurable defect in procedure vitiating the trial itself. On these allegations the applicant prayed that the order of summary dismissal passed by this Court in Criminal Appeal No. 1000 of 1963 be set aside and it may also be ordered that the judgment and order of conviction passed by Sessions Court in Sessions Case No. 72 of 1963 be also set aside and an order of retrial may be passed. ( 4 ) THIS application has been preferred under sec. 561a of the Criminal Procedure Code. A rule was issued by the Court and the matter has now come up for final hearing. ( 4 ) THIS application has been preferred under sec. 561a of the Criminal Procedure Code. A rule was issued by the Court and the matter has now come up for final hearing. ( 5 ) THE questions which arise for our consideration are:- (1) Whether the High Court has jurisdiction to review its own of summary dismissal passed in Criminal Appeal No. 1000 of 1963. (2) Whether the application which is preferred by the accused is within the period of limitation; and (3) Whether the evidence on the record is sufficient to enable this Court to review the order of summary dismissal passed in Criminal Appeal No. 1000 of 1963. ( 6 ) IN order to consider the first question as to whether the order of summary dismissal that has been passed by the High Court in Criminal Appeal No. 1000 of 1963 can be reviewed or not we must determine as to whether the said order amounts to a judgment or an order. The Criminal Procedure Code nowhere defines what a judgment is. Whether the order of summary dismissal amounts to a Judgment or an order was considered by the Supreme Court in U. J. S. Chopra v. State of Bombay A. I. R. 1955 Supreme Court 633. Bhagwati J. speaking for himself and Imam J. has observed:-THE judgment however pronounced was however the expression of the opinion of the Court arrived at after due consideration of the evidence and all the arguments and would therefore either be a judgment of conviction or acquittal and where it would not be possible to predicate of the pronouncement that it was such an expression of opinion the pronouncement could certainly not be taken as the judgment of the High Court. A judgment pronounced by the High Court in the exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would certainly be arrived at after due consideration of the evidence and all the arguments and would therefore be a judgment and such judgment when pronounced would replace the judgment of the lower Court thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Court below. When however a petition of appeal presented by a convicted person from jail is summarily dismissed under sec. When however a petition of appeal presented by a convicted person from jail is summarily dismissed under sec. 421 or a revision application made by him is dismissed summarily or in limine without hearing him or his pleader what the High Court does is to refuse to entertain the petition of appeal or the criminal revision and the order passed by the High Court dismissed or rejected cannot be said to be the expression of the opinion of the Court arrived at after due consideration of the evidence and all the arguments. It is a refusal to admit the appeal or the criminal revision so that notice be issued to the opposite party and the matter be decided after a full hearing in the presence of both the parties. It would be only after the appeal or the criminal revision was admitted that such a notice would issue and the mere refusal by the High Court to entertain the appeal or the criminal revision would certainly not amount to a judgment. ( 7 ) THEREFORE in the light of this decision of the Supreme Court it is clear that the order of summary dismissal is not a judgment but merely an order. ( 8 ) THE next question is whether the High Court has got powers to review its own order. Chapter XXVI of the Code of Criminal Procedure contains rules relating to judgments. Sec. 366 of the Chapter lays down the mode of delivering judgment. Sec. 367 deals with the language of judgment and the contents of the judgment. Sec. 369 provides:- save as otherwise provided for by this 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 Court no Court when it has signed its judgment shall alter or review the same except to correct a clerical error. Now it is evident that these provisions of Chapter XXVI relate to judgments that are delivered by the trial Court or the High Court in its original jurisdiction. They do not refer to the judgments which are delivered by the High Court in its appellate or revisional jurisdiction. This interpretation gets support from the provisions of secs. 424 and 430 of the Criminal Procedure Code. They do not refer to the judgments which are delivered by the High Court in its appellate or revisional jurisdiction. This interpretation gets support from the provisions of secs. 424 and 430 of the Criminal Procedure Code. Sec. 424 of the Code provides:- the rules contained in Chapter XXVI as to the judgment of a Criminal Court of original jurisdiction shall apply so far as may be practicable to the judgment of any Appellate Court other than a High Court. There is a proviso to section with which we are not concerned. Sec. 369 clearly lays down that the judgment once delivered is not open to review. Sec. 424 makes the provision of Chapter XXVI applicable to judgments of appellate Court other than a High Court. Therefore it is evident that sec. 369 applies to judgments of appellate Court other than High Court. Sec. 430 of the Code provides:-JUDGMENTS and orders passed by an Appellate Court upon appeal shall be final except in the cases provided for in sec. 417 and Chapter XXXII. Sec. 430 provides for the finality of judgments given by the appellate Court. Both sec. 424 and 430 are contained in Chapter XXI relating to appeals. It is clear therefore that the rules contained in Chapter XXVI apply to the Court of original jurisdiction; otherwise there was no meaning in enacting sec. 424 and sec. 430 of the Code of Criminal Procedure. This interpretation of sec. 369 of the Code is supported by the decision of the Division Bench of the Bombay High Court in State of Bombay v. Geoffrey Manners and Co. 53 Bom. L. R. 117. The Division Bench observed as under : -. . THE rules contained in Chapter XXVI relating to judgments have no application to the judgment of a High Court exercising appellate jurisdiction. Sec. 369 of the Code of Criminal Procedure does not therefore apply so far as the criminal appellate judgments of a High Court are concerned and it is therefore not possible to argue from the wording of that section that the High Court exercising criminal appellate jurisdiction can alter or review a judgment before it has been signed. In fact there are no rules governing the judgment of the High Court exercising criminal appellate jurisdiction. ( 9 ) FURTHER sec. In fact there are no rules governing the judgment of the High Court exercising criminal appellate jurisdiction. ( 9 ) FURTHER sec. 430 of the Code of Criminal Procedure provides that judgments and orders passed by an Appellate Court shall be final except in the cases provided for in sec. 417 and Chapter XXXII. The word final in this section has a specific and definite meaning and it is that the order of the High Court is not capable of being challenged in that Court by any further proceedings. There is no provision in the Criminal Procedure Code providing for an appeal to the Supreme Court. Therefore the word final cannot be construed as prohibiting any further appeal being filed against the judgment of the High Court. The provisions of appeal to Supreme Court against the judgment of High Court in criminal cases are contained in Art. 134 of the Constitution of India. No provision in the Criminal Procedure Code can be construed to limit this right of appeal conferred by the Constitution It is clear therefore that the word final in sec. 430 Criminal Procedure Code prohibits any further proceedings in the appellate Court against its judgment or order. There is no specific provision in the Code enabling the High Court to review or revise its own order. It is also clear that the word final can affect only the powers of review of the High Court. When the order of the High Court is made final by sec. 430 of the Criminal Procedure Code it clearly means that the High Court has no power to review its own order. There is an express prohibition in sec. 430 of the Criminal Procedure Code which takes away the jurisdiction of the High Court for reviewing its own order. ( 10 ) THE Supreme Court in U. J. S. Chopra (supra) had also considered the effect of sec. 430 of the Criminal Procedure Code. The facts of that case were that U. J. S. Chopra was convicted by Presidency Magistrate 13 Court Bombay for an offence under sec. 66 (b) of the Bombay Prohibition Act ( Act XXV of 1949 ) and was sentenced to undergo imprisonment for one month and to pay a fine of Rs. 250/or to undergo R. F. I. for one month. 66 (b) of the Bombay Prohibition Act ( Act XXV of 1949 ) and was sentenced to undergo imprisonment for one month and to pay a fine of Rs. 250/or to undergo R. F. I. for one month. Chopra preferred an appeal to the High Court of Judicature at Bombay but his appeal was summarily dismissed by a bench of that Court on January 19 1953 After the dismissal of that appeal the State of Bombay preferred a Criminal Revision Application to the High Court for enhancement of the sentence. Notice of this was issued to Chopra. The learned Counsel for Chopra claimed a right under sec. 439 to show cause against the conviction. The High Court did not permit him to do so. The question before the Supreme Court was whether summary dismissal of the appeal preferred by Chopra precluded him from taking advantage of the provisions of sec. 439 (2) of the Criminal Procedure Code when he was subsequently called upon to show cause why the sentence imposed on him should not be enhanced. Justice Bhagwati speaking for himself and Imam J. has observed at page 648:- once such a judgment has been pronounced by the High Court either in the exercise of its appellate or its revisional jurisdiction no review 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. and further at page 650 the observations are:-IN all these cases there will be no judgment of the High Court replacing the judgment of the lower Court and the action of the High Court would only amount to a refusal by the High Court to admit the petition of appeal or the criminal revision and issue notice to the opposite party with a view to the final determination of the questions arising in the appeal or the revision. The order dismissing the appeal or criminal revision summarily or in limine would no doubt be a final order of the High Court not subject to revision even by the High Court itself but would not tantamount to a judgment replacing that of the lower Court. The order dismissing the appeal or criminal revision summarily or in limine would no doubt be a final order of the High Court not subject to revision even by the High Court itself but would not tantamount to a judgment replacing that of the lower Court. The convicted person would be bound by that order and would not be able to present another petition of appeal or application for criminal revision challenging the conviction or the sentence passed upon him by the lower Court. It is therefore clear that sec. 430 or the Criminal Procedure Code makes the order of summary dismissal final and it cannot be reviewed by the High Court. The same view was taken by a Division Bench of the Bombay High Court in State or Bombay v. Geofferry Manners (supra ). ( 11 ) MISS Shah however drew our attention to the decision of the Full Bench of the Allahabad High Court in Raj Narain and others v. The State A. I. R. 1950 Allahabad 315. Mootham C. J. in that case gave a differing judgment and referred to the Supreme Court case of U. J. S. Chopra (supra ). The learned Chief Justice held that the High Court had no power to review its own order. Raghubar Dayal J. took the view that the High Court had power to review its own order under the provisions of sec. 561a of the Criminal Procedure Code. The Supreme Court decision was cited before him. B It the learned Judge distinguished it on the ground that the provision of sec. 561a were not considered. As regards sec. 430 of the Criminal Procedure Code the learned Judge held that the word final meant that the judgment or order passed by the High Court in its appellate jurisdiction was not open to any further appeal and the Powers of the High Court to interfere with the order otherwise than in appeal are not taken away. Chaturvedi J. also took the same view. Chaturvedi J. further held that saving clause in the beginning of sec. 561a makes an exception in cases where the other provisions of the Code of Criminal Procedure provide to the contrary. We are unable to agree With the view taken by Raghubar Dayal and Chaturvedi JJ. We have already interpreted the word final used in sec. Chaturvedi J. further held that saving clause in the beginning of sec. 561a makes an exception in cases where the other provisions of the Code of Criminal Procedure provide to the contrary. We are unable to agree With the view taken by Raghubar Dayal and Chaturvedi JJ. We have already interpreted the word final used in sec. 430 of the Criminal Procedure Code and have come to the conclusion that it takes away the power of the High Court to review its own order. With regard to the provisions of sec. 561a it is well established that it is only an enabling provision. It recognises the inherent powers which the High Court had. The inherent powers cannot be used to override the express provisions of law. In other words if there are specific provisions of the Code dealing with a particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or the jurisdiction that may be exercised in relation to a matter the inherent powers of the Court cannot be invoked in order to cut across the powers conferred by the Code. ( 12 ) IN the case of Sankatha Singh and others v. State of Uttar Pradesh A. I. R. 1962 Supreme Court 1208 the Supreme Court had to consider the scope of the inherent powers under the Code. The facts in that case were:- Sankatha Singh and others were convicted by the Magistrate First Class Gyanpur for offences under secs. 452 and 323 read with sec. 34 I. P. Code. Kharpatto one of the accused was also convicted for an offence under sec. 324 I. P. Code. They appealed against their conviction. The appeal was fixed for hearing on November 30 1956 On that day neither the appellant nor their counsel appeared in the Court. The learned Sessions Judge dismissed the appeal after perusing the judgment of the trial Court and the record. On December 17 1956 an application was presented by the accused (appellants) praying that the case be restored so that justice be done to them. This application was allowed by the learned Sessions Judge. The appeal was placed for hearing before Shri Tripathi who had succeeded Shri Teja Singh as Sessions Judge. On December 17 1956 an application was presented by the accused (appellants) praying that the case be restored so that justice be done to them. This application was allowed by the learned Sessions Judge. The appeal was placed for hearing before Shri Tripathi who had succeeded Shri Teja Singh as Sessions Judge. Shri Tripathi held that the appellate Court had no power to review or restore an appeal which had been disposed of and held that the order restoring the appeal was ultra vires and without jurisdiction. Against this an application in revision was filed in the High Court but the same was dismissed. Aggrieved by this decision an appeal was filed in the Supreme Court. The question before the Supreme Court was whether the Sessions Court had the power to review its own order. It was argued before the Supreme Court that the Sessions Court could review its own order in the exercise of inherent powers which every Court possesses in order to further the ends of justice. The Supreme Court held that the Court could not pass an order for rehearing an appeal when its jurisdiction was specifically taken away by the provisions of sec. 369 read with sec. 424 of the Criminal Procedure Code. The Supreme Court further held that the inherent powers cannot be exercised to do what the Code specifically prohibits the Court from doing. In our opinion this decision of the Supreme Court negatives the interpretation of sec. 561a of the Criminal Procedure Code which found favour with the majority of the learned Judges of the Allahabad High Court in Raj Narain and others (supra) It is therefore clear that the High Court has no jurisdiction to review its own order. ( 13 ) OUR attention was also invited to a judgment of this Court in Criminal Application No. 9 of 1965 dated 16th March 1965 of Division. .