B. J. DIVAN, J. ( 1 ) THIS application has been filed under the provisions of Arts. 226 and 227 of the constitution of India and under sec. 439 Cr. P. a. The petitioner has prayed that by a Writ of Certiorari or by a Writ in the nature of Certiorari or by any other Writ direction or order the judgment and order cst conviction and sentences recorded by the learned Sessions judge Snrendranagar in Sessions Case No. S of 1966 on Slay 20 1966 in so tar rs the said order of conviction and sentence affects the petitioner sentencing the petitioner to suffer R. I. for five years on each count under secs. 394 and 395 I. P. C. be quashed and set aside and by such Writ direction or order the petitioner may be acquitted and be ordered to by set at liberty forthwith. The petitioner has also prayed for an order for bail pending the hearing and final disposal of this petition. ( 2 ) THE facts giving rise to this petition are rather peculiar. The petitioner and five other persons were charged with offences punishable under sec. 395 read with sec. 397 sec. 394 and 6cc. 342 I. P. C. The trial against the six accused persons proceeded before the learned Sessions Judge Surendranagar in Sessions Case No. 5 of 1966. The learned Sessions Judge by his judgment and order dated May 20 1966 convicted accused No. 1 under sec. 395 and 394 I. P. C and sentenced him to R. I. for a period of 7 years and to pay a fine of Rs. 500. 00 in default R. I. for six months so far as the charge under sec. 395 I. P. C. was concerned and also sentenced him to R. I. for five years on the charge under sec. 394 I. P. C. The sentences were directed to run concurrently so far as accused No. 1 was concerned. The learned Sessions Judge convicted accused No 3 under sec 395 I. P. C. and sentenced him to R. I. for seven years Accused No. 3 was also convicted under sec 394 I. P. C. and was sentenced to R. I for five years on that count. The present petitioner was accused No. 4 before the learned Sessions Judge and the petitioner was convicted under secs. The present petitioner was accused No. 4 before the learned Sessions Judge and the petitioner was convicted under secs. 395 and 394 I. P. C. and was sentenced to R. I. for five years on each count. The substantive sentences of all the three accused accused No. 1 3 and 4 were directed to run concurrently. Accused Nos. 2 5 and 6 were acquitted by the learned Sessions Judge. The present petitioner i. e. Original accused No. 4 preferred an appeal from jail and that appeal was numbered as criminal Appeal No. 576 of 1965 in this High Court and that appeal was dismissed summarily on July 8 1966 by a Division Bench of this High Court consisting of Vakil and M. U. Shah JJ. Independently of the appeal filed by the present petitioner the other two accused viz. accused Nos. 1 and 3 and preferred Criminal Appeal No. 603 of 1966 and that appeal was filed through their Advocate Mr. A. H. Mehta. That appeal of accused Nos. 1 and 3 was admitted by the Division Bench consisting of Vakil and M. U. Shah JJ. on July 28 1966 The appeal of accused Nos. 1 and 3 was finally disposed of by B Division Bench of this High Court consisting of Bakshi Act. C. J. (as he then was) and Thakor J and the Division Bench allowed the appeal and acquitted accused Nos. 1 and 3 directed that those two accused persons should be set at liberty so far as this case was concerned. This judgment of the Division Bench was delivered on December 15 1967 After that Division Bench judgment was delivered the petitioner has presented the present Special Criminal Application praying for the reliefs set out above. ( 3 ) THE contention of the petitioner is that on a careful appreciation of the entire evidence in the case; the Division Bench while dealing with the appeal of original accused Nos. 1 and 3 has completely disbelieved the prosecution evidence; and accordingly the petitioner has filed this application so that in the interests of justice the High Court may set aside the order of conviction and sentence passed by the learned Sessions Judge against the present petitioner. As we have pointed out earlier the the present application has been filed under three alternative provisions of law viz. As we have pointed out earlier the the present application has been filed under three alternative provisions of law viz. Articles 226 and 227 of the Constitution and the revisional jurisdiction under sec. 439 Cr. P. C. ( 4 ) MR. revisional appearing on behalf of the petitioner before us based his arguments and contentions on the decision of the Surpeme Court in U. J. S. Chopra v. State of Bombay A I. R. 1955 S. C. 633; and the ques- tion that we have to consider is whether in the light of the principles enunciated by the Surpeme Court in that case the High Court has any powers to deal with the case of the accused under any of the provisions of law under which the jurisdiction of the High Court has been invoked by the petitioner. ( 5 ) IN Chopras case (supra) what happened was that Chopra was convicted by the presidency magistrate 13 Court Bombay of an offence under sec. 66 (b) Bombay Prohibition Act and sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 250. 00 or to undergo rigorous imprisonment for one month. Chopra preferred an appeal to the High Court 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 Revi- Application to the High Court for enhancement of the sentence and there- after notice was issued to Chopra under the provisions of sec. 439 (2) Cr. P. C. and at that stage the learned counsel for Chopra contended before the High Court that he had a right under sec. 439 (6) Cr. P. C. to show cause also against his conviction. The High Court of Bombay did not permit him to show-cause against order of conviction but ultimately the High Court did not think fit to pass any order of enhancement of sentence and ultimately under a certificate granted under Art. 134 (1) (c) of the Constitution the appeal was taken to the Supreme Court. S. R. Das J. as he then was) and Bhagwati and Imam JJ. reached the same conclusion viz. S. R. Das J. as he then was) and Bhagwati and Imam JJ. reached the same conclusion viz. that Chopra s appeal should be allowed and the High Court of Bombay should be directed to allow Chopra an opportunity to show cause against his conviction and then to dispose of the matter according to law. The view which appealed to Das J. was that under the provisions of sec. 430 Cr. P. C. there was a finality of all orders passed In the exercise of appellate jurisdiction but under the terms of the non-obstante clause in sec. 430 Cr. P. C. an exception was made in the case of judgment and orders passed by an appellate Court which become final except in cases provided in sec. 417 and Chapter 32 Cr. P. C. Chapter 32 which contains secs. 432 to 442 (both inclusive) deals with reference and the powers of the High Court in revision are set out in sec. 439 Cr. P. C. and are thus set out in Chapter 32. According to the view which appealed to Das J. therefore though an order passed by the High Court summarily dismissing the appeal under sec. 421 was otherwise final under the provi- tions of sec. 430 If the matter arose under sec. 439 then the High Court could issue a notice of enhancement under sec. 439 (1) and while disposing of that notice of enhancement under sec. 439 (6) the High Court was bound to give an opportunity to the convicted person of showing cause against his conviction; and it was in the light of the provisions of excep- tion set out in sec. 430 that S. R. Das J based his conclusion. The majority of the learned Judges constituting the Bench of the Supreme Court in Chopra s case viz Bhagwati and Imam JJ. came to the same conclusion but on a different reasoning. 430 that S. R. Das J based his conclusion. The majority of the learned Judges constituting the Bench of the Supreme Court in Chopra s case viz Bhagwati and Imam JJ. came to the same conclusion but on a different reasoning. The view which appealed to the learned Judges constituting the majority was that what became final and replaced the order of the lower Court was the judgment of the appellate Court and after considering various authorities on the point the learned Judges constituting the majority as observed by Bhagwati J. In para 27 of the report held that a judgment pronounced by the High Court In the exercise of its appellate or revisional jurisdiction after issue of a notice and s full hearing in the presence of both the parties would be arrived at after due consideration of the evidence of ail 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 and that only such final judgment is to be executed in accordance with is by the Court below. The further view which was taken in Chopras case (supra) by the learned Judges constituting the majority was that when the High Court summarily rejected a petitioners appeal under sec. 421 on the ground that there was no prima facie case for the interference by the High Court or when the High Court summarily rejected a revision application or rejected a Reference made to the High Court endorsing or stating that the Reference was not accepted all that was happening was that the High Court was expressing Its view that in none of the three cases was there a prima facie case for the interference by the High Court. In para 22 at page 647 of the report Bhagwati J. has classified the different types of cases when a convict person gets a right to 6how-cause against his conviction. He has pointed out that there are four different types of such cases:-1 Where his petition of appeal has been summarily dismissed either without hearing him or after hearing him or his pleader as the case may be. He has pointed out that there are four different types of such cases:-1 Where his petition of appeal has been summarily dismissed either without hearing him or after hearing him or his pleader as the case may be. 2 When his appeal has been dismissed after a full hearing following upon the notice of appeal being issued to the opposite party3 When his application for revision has been summarily dismissed either without hearing him or after hearing him or his pleader as the case may be; and4 Where his application for revision has been dismissed after a full hearing follow- ing upon a notice issued to the opposite party. At page 651 of the report Bhagwati J. has observed:-IN cases where the petition of appeal or the application for criminal revision is admitted by the High Court and a notice is issued to the opposite party and the High Court maintains the conviction with or without reducing the sentence passed upon the accused the judgment of the High Court In the exercise of Its appellate or revisional jurisdiction would replace the judgment of the lower Court and there would be no occasion at all for the exercise by the High Court of its revisional powers under sec. 439 (1) which can only be exercised to quash the judgments of the lower Courts and certainly not quash its own judgments. The cases (2) and (4) noted above would therefore be outside the purview of sec. 439 (1 ). If that is so there would be no question of giving the accused an opportunity of being heard either personally or by pleader in his defence under sec. 439 (3) and the provisions of sec. 439 (6) would certainly not come into operation at all. Earliar at page 650 Bhagwati J. has observed:-IN the cases (1) and (3) noted above therefore there being no judgment of the High Court replacing the judgment of the lower Court sec. 439 (1) would operate and the High Court in exercise of its revisional jurisdiction either suo motu or on the application of the interested party would be in a position to issue the notice of enhancement of sentence which would require to be served on the accused under 6 439 so that he would have an opportunity of being heard either personally or by pleader in his own defence. In that event the convicted person in showing cause why his sentence should not be enhanced would also be entitled to show cause against his conviction. Therefore Bhagwati and Imam JJ. based the majority decision in Chopras case on the footing that an order of summary dismissal either of a revision application or a petition of appeal does not amount to a judgment of the High Court in the sense of a judgment pronounced after a full hear- ing given to both the parties and setting out the reasons for conclusions reached by the High Court. But even though the learned Judges-consti- tuting the majority came to that conclusion they have in their judgment observed that there is a principle of finality of judgement even in criminal matters. At page 648 of the report Bhagwati J. observed :the principle as to the finality of criminal judgments has also been invoked while considering this question- This principles has been recognised by this Court in Janardan Reddy v. State of Hyderabad A. I. R. 1951 SC. 217 at p. 225 where Fazl Ali J. observed : it is true that there is no such thing as the principle of constructive res judicata in a criminal case but there is such a principle as finality of judgments which applies to criminal as well as civil cases and is implicit in every system wherein provision are to be found for correcting errors in appeal or in revision. Sec. 430 Cr. P. C has given express recognition to this principle of finality by providing that judgments and orders passed by an appellate Court upon appeal shall be final except in cases provided for in sec. 417 and Chapter XXXII. ( 6 ) IT is because of this principle of finality of an order passed by an appellate Court conferred upon such order by sec. 430 that at page 660 of the report Bhagwati J. has observed :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 review or revision even by the High Court its but would not tantamount to a judgment replacing that of the lower Court. 430 that at page 660 of the report Bhagwati J. has observed :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 review or revision even by the High Court its 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. But such order would not have the effect of replacing the judgment or order of the lower Court which would in that event be subject to the exercise of revisional jurisdiction by the High Court under sec. 439 of the Criminal Procedure Code at the instance of the State or an interested party. It is therefore clear that even according to the majority of the learned Judges in Chopras case an order of summary dismissal of an appeal is final subject to the revisional jurisdiction of the High Court under sec. 439 Cr. P. C. so far as the exercise of that power is concerned at the instance of the State or of an interested party or of the High Court acting suo motu. But bearing this exercise of the power under sec. 439 Cr. P. C. at the instance of the State or at the instance of an interested party or at the instance of the High Court acting suo motu the convicted person him- self whose appeal has been summarily dismissed is bound by the order summarily dismissing his appeal and he would not be entitled to present another petition of appeal or Criminal Revision Application challenging the conviction or sentence passed upon him by the lower Court. It must not be forgotten that these observations in Chopras case were made by Bhagwati J. speaking on behalf of himself and Imam J. while dealing with the question of what is to happen when a notice of enhancement has been issued at the instance of the State Government by the High Court after the appeal against the conviction has been summarily dismissed by the High Court. It is true that according to this judgment of Bhagwati and Imam JJ. It is true that according to this judgment of Bhagwati and Imam JJ. in the instant case there is no judgment of the High Court replacing the judgment of learned Sessions Judge; and to that extent it would be open to the High Court in view of the decision in Chopras case if it so chose to issue a notice of enhancement under sec. 439 (1) Cr P. C. ; and if that were to be done it would be open to the present petitioner under sec. 439 (6) Cr. P. C. not only to show cause against enhance- ment but also against his conviction as well; but If the High Court does not choose to exercise its jurisdiction under sec. 439 (1) Cr. P. C. and no notice of enhancement under sec. 439 (2) Cr. P. C. is issued the order of summary dismissal passed by the High Court dismissing the present peti- tioners petition of appeal on the earlier occasion would become final and that finality would be in accordance with what has been observed by Bhagwati J. in para 25 at page 648 of the report in Chopras case follow by the observations of Fazl Ali J. in Janardan Reddys case. ( 7 ) IT is therefore clear to us that so far as the present case is concerned the High Court has no power to Interfere with the order of summary dismissal after it has become final. The order passed by this High Court In Criminal Appeal No. 576 of 1966 on July 8 1968 has become final and if we were to grant any relief to the present petitioner in the present Special Criminal Application. we would be interfering with the finality of that order in one form or another. Though there is no judgment of the High Court in the sense defined by Bhagwati and Imam JJ. in Chopras case there is an order passed by the High Court under sec. 421 Cr. P. C. in the case of the present petitioner in Criminal Appeal No. 576 of 1965 and that order passed by the High Court was become final by virtue of sec. 430 Cr. in Chopras case there is an order passed by the High Court under sec. 421 Cr. P. C. in the case of the present petitioner in Criminal Appeal No. 576 of 1965 and that order passed by the High Court was become final by virtue of sec. 430 Cr. P. C. The judgment still remains the judgment of the Sessions Court but the order of summary dismissal dismissing the appeal of the present petitioner has become final and is not open to review or revision or further appeal so far as this High Court is concerned at the Instance of the petitioner. ( 8 ) MR. Mehta on behalf of the petitioner urged before us that we should suo motu exercise the revisional jurisdiction in the Interests of justice and set aside the order of conviction and sentence passed by the learned Sessions Judge against the present petitioner. If we were to accede to that request of the learned counsel for the petitioner we would be setting at nought the finality of the order passed by this High Court In Criminal Appeal No. 576 of 1966 on July 8 1966 and that even according to the learned Judges constituting the majority in Chopras case is not competent to the High Court to do. The exercise of the inherent powers of the High Court or the exercise of the powers under Art. 226 or Art. 227 of the Constitution would also Interfere with the finality of the order of the High Court in Criminal Appeal No. 576 of 1966; and on that ground alone the powers of the High Court cannot be exercised. ( 9 ) IN our opinion the position so far as the present petitioner is not altogether hopeless because in our opinion this is fit case in which the High Court should recommend to the State Government that it should exercise its powers under Chapter XXIX of the criminal Procedure Code and pass appropriate orders in view of the special facts and circumstances of this case. The appeal of the two co-accused viz. accused Nos. The appeal of the two co-accused viz. accused Nos. 1 and 3 has been allowed after another Division Bench of this High Court has appreciated evidence on record and in view of that appreciation by the other Division Bench it would be for the Government to consider whether it should exercise its powers under Chapter XXIX of the Criminal Procedure Code; and we recommend the case of the petitioner to the Government accordingly. ( 10 ) MR. Mehta on behalf of the petitioner orally applied for a certificate under Act. 134 (1) (c) of the Constitution for leave to appeal to the Supreme Court. In our opinion in view of the clear observations of the Supreme Court referred to above this is not a fit case where the certificate prayed for should be 8ranted. The application is therefore rejected. ( 11 ) IN the result this special Criminal Application fails and is dismissed. Rule is discharged. There will be no order as to costs of this petition. Application dismissed. .