RAMCHANDRA PRASAD YADAV v. ANIRUDH SINGH — 1970 DIGILAW 115 (PAT)

JUDGMENT B.P. Sinha, J. This is an application under Section 561A of the Code of Criminal Procedure (hereinafter to be referred to as the Code) to set aside the order passed by this Court in Criminal Revision No. 1245 of 1969, with a prayer that it may be reheard. Against an order passed by the Magistrate in a proceeding under Section 145 of the Code, the aforesaid criminal revision was filed in this Court by Anirudh Singh and others, who are opposite party in the instant case. Petitioner Ramchandra Prasad Yadav and one Vijai Prasad Yadav was opposite party in that criminal revision. Notices were issued to them in the criminal revision. It appears that the report of the peon was that he met both Vijai Prasad Yadav and Ramchandra Prasad Yadav and that Vijai Prasad Yadav received the notices for himself as also for Ramchandra Prasad Yadav. None of these two persons appeared in the criminal revision. The case was taken up for hearing on 5.12.1969. It was heard in part on that day. Hearing was resumed and concluded and judgment was delivered on 3.12.1969. The criminal revision was allowed. The order of the learned Magistrate was set aside and the case was ordered to be remanded for fresh decision according to law. On 18.12.1969 Ramchandra Prasad Yadav filed the application of the instant case with an assertion that he had not received any notice of the aforesaid criminal revision and he had no knowledge about it, with the result that he could not appear in the case at the time of hearing. It is stated in the petition that it was on 8.12.1969 that the father of the petitioner learnt from one Ajabal Yadav of Basudeopur that Anirudh Singh, a member of the opposite party, was telling him that a case against the order of the learned Magistrate passed under Section 145 of the Code was opened in the High Court. Receiving such information, the petitioner along with his father came to Patna on 9.12.1969 and spoke about it to Shri Indra Bhanu Singh, Advocate. On examination of the case list it transpired that the case was disposed of on 8.12.1969. The petitioner then went back home for the necessary papers as well as for money for necessary expenses. Thereafter this application was filed for the reliefs mentioned above on the grounds stated therein. 2. On examination of the case list it transpired that the case was disposed of on 8.12.1969. The petitioner then went back home for the necessary papers as well as for money for necessary expenses. Thereafter this application was filed for the reliefs mentioned above on the grounds stated therein. 2. The prayer of the petitioner is resisted by the opposite party on the ground that review of the judgment of this Court could not be granted under the provision of Section 561A of the Code and that the instant case is not fit for exercise of any power under that section. 3. In connection with the first ground the submission of the learned counsel for the opposite party is that the judgment of this Court in criminal revision was final and after that judgment was signed, this Court became functus officio and so the judgment cannot be reviewed. In support of this contention reliance has been placed upon Section 369 of the Code as also on a number of decisions which will be referred to hereinafter. On the other hand the submission of the learned counsel for the petitioner is that in view of Section 561A of the Code this Court can in appropriate cases recall its order for the purposes mentioned in that section in spite of the provisions of Section 369 of the Code. In support of this contention, the counsel has relied upon some decisions which also will be referred to hereinafter. 4. Section 369 of the Code runs thus :- “Court not to alter judgment-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 by 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.” This section finds place in Chapter XXVI of the Code which deals with ‘Judgment’. In view of the setting of the Section in the context of the previous chapters it is evident that it applies in terms to judgment of the trial court in criminal cases. Chapters XX to XXIII of the Code deal with different kinds of trials. Chapter XXIV contains general provisions regarding 'enquiries and trials. Chapter XXVI prescribes the method of taking and recording evidence. Chapters XX to XXIII of the Code deal with different kinds of trials. Chapter XXIV contains general provisions regarding 'enquiries and trials. Chapter XXVI prescribes the method of taking and recording evidence. Thereafter Chapter XXVI with heading "Of the Judgment" occurs. Chapter XXVII deals with 'submission of sentences for confirmation of the death sentence to the High Court. Then rules regarding 'Execution, Suspension, Remission and Commutations of sentences' are in Chapters XXV III and XXIX. From the reading of the Code as indicated by the setting of the chapters and the sections thereunder it in quite clear that Section 369 of the Code in its term applies to the judgments of the trial courts in criminal cases. In (I) U.J.S. Chopra V. State of Bombay (A.I.R. 1955 S.C. 633 S.R. Das, J. (as he then was) has observed- “There is indication in the Code itself that the purpose of Section 369 is not to prescribe a general rule of finality of all judgments of all Criminal Courts but is only to prescribe finality for the judgment of the trial court so far as the trial court is concerned”. Finality for the judgments and orders passed by an appellate court is subject of Section 430 of the Code. That section provides "Judgments and orders passed by an Appellate Court upon appeal shall be final, except in the cases provided for in Section 417 and Chapter XXXII”. Section 417 deals with appeal against acquittal and Chapter XXXII deals with reference; and revisions. Therefore, neither Section 369 nor Section 430 of the Code does in terms give finality to the judgments of the High Court passed in exercise of its revisional jurisdiction. There is no separate provision in the Code giving finality to such judgments of a High Court. Nevertheless the principle of finality has, however, been made applicable to the judgments in revisions as well as observed in the aforesaid Chopra's case (A.I.R. 1955 S.C. 633). Das, J. observed as follows : "It is also true that although the revisional power is not expressly or in terms controlled either by Section 369 or Section 430, the general principle of finality of judgments attaches to the decision or order of the High Court passed in exercise of its revisional powers". Bhagwati and Imam, JJ. Das, J. observed as follows : "It is also true that although the revisional power is not expressly or in terms controlled either by Section 369 or Section 430, the general principle of finality of judgments attaches to the decision or order of the High Court passed in exercise of its revisional powers". Bhagwati and Imam, JJ. say in the very same case- Section 430 does not in terms give finality to the judgments of the High Court passed in exercise of its revisional jurisdiction, but the same principle would apply whether the High Court is exercising its appellate jurisdiction or its revisional jurisdiction.” ... This principle of finality of criminal judgments therefore would equally apply, when the High Court is exercising its revisional jurisdiction.” Thus there cannot be any doubt that though in terms Section 369 or 430 of the Code does not apply to judgments of the High Court in criminal revision, the principle of finality enshrined in those sections does apply to such judgments in view of the observation by the Supreme Court in the above referred Chopra’s case. 4. The contention of the counsel for the opposite party is that in face of the finality attached to such a judgment of the High Court in a criminal revision no review of such judgment on any account can be granted. In this connection reliance is placed upon the following observation of the Supreme Court in the aforesaid case- “Once such a judgment has been pronounced by the High Court either in the exercise of its appellate of 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.” There is no specific provision in the Code which empowers this Court to review or bars it from reviewing its judgment or orders passed in criminal revisions. The absence of such provision does not mean that the Court cannot review its earlier order in exercise of its inherent power in any circumstance. The omission simply means that the Legislature did not confer a general right to an aggrieved person to ask for review of its earlier order. There may be circumstances under which exercise of inherent power by way of review would be necessary. The omission simply means that the Legislature did not confer a general right to an aggrieved person to ask for review of its earlier order. There may be circumstances under which exercise of inherent power by way of review would be necessary. The counsel for the petitioner has relied upon the provision of Section 561A of the Code, which reads thus- "Saving of inherent power of High Court-Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such order 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." It is because of the principle of finality enshrined in Section 369 of the Code which has been made applicable to the judgments of a High Court in criminal revisions that it has been urged that in spite of Section 561A of the Code the High Court cannot review the judgments passed by it in criminal revisions. Now Section 369 is subject to other provisions of the Code. Section 561A is one of such other provisions of the Code to which Section 369 is made subject. In connection with inherent power under Section 561A reference can be made to an observation made in (2) Talab Haji Hussain V. Madhu Kar Purshottam Mondkar (A.I.R. 1958 Supreme Court 376), which runs thus:- “......It is obvious that this inherent power can be exercised only for either of the three purposes specifically mentioned in the section. 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 Section 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. 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. Lacunas are sometimes discovered in procedural law and it is to cover such lacunas and to deal with cases where such lacunas are discovered that procedural law invariably recognizes the existence of inherent power in Courts. It would be noticed that it is only the High Court whose inherent power is recognised by Section 561A and even in regard to the High Court's inherent power definite statutory safeguards have been laid down as to its exercise. It is only where the High Court is satisfied either that an order passed under the Code would be rendered ineffective or that the process of any Court would be abused of that the ends of justice would not be secured that the High Court can and must exercise its inherent power under Section 561A. There can thus be no dispute about the scope and nature of the inherent power of the High Courts and the extent of its exercise.” It is thus clear that in exercise of its inherent powers this Court can review its judgments and orders and it is necessary to exercise them to achieve either of the purposes mentioned in Section 561-A, that is to say to give effect to any order under the Code or to prevent the abuse of the process of the court or to secure the end of justice. Therefore even if Section 369, on account of the observation of the Supreme Court has got application to judgments and orders passed in revision, Section 561A is a provision which saves the power of review by the High Court in cases where it has to be exercised for the purposes mentioned therein. The opening words of Section 561A clearly provides that nothing in this Code shall be deemed to limit the inherent power of the High Court to make such orders as may be necessary for achievement of the purposes mentioned therein, that is to say the opening words of Sections 369 and 561A read together clearly indicate that Section 369 is subject to the provision of Section 561A. Inherent power of the High Court in the three matters referred to in Section 561A prevail as against any other provisions of the Code including Section 369. Though Section 369 has the effect of revoking any inherent power which may have existed in other Criminal Courts, it does not affect the inherent power of the High Court, which has been safeguarded by Section 561A for the purposes mentioned therein. This inherent power safeguarded by Section 561A is consistent with the principle that there must be power in final court of appeal to correct its mistake, inasmuch as the principle is that the court is to take care that the act of the court does no injury to any of the suitors. The aforesaid observation of the Supreme Court in Chopra's case is of no assistance to the counsel for the opposite party in support of his contention that in no case any review of the order passed in revision can be granted under Section 561A of the Code. The point for decision before the Supreme Court was whether the convicted person had a right to challenge the correctness of his conviction. When a notice of enhancement was issued to him on an application by the State filed subsequent to the summary disposal of his appeal. The question as to whether the High Court can review or recall its earlier order passed in revision in exercise of its inherent power under Section 561A of the Code for the purposes mentioned therein did not arise for consideration and as a matter of fact the Supreme Court did not express any view in that regard. 5. The view that in appropriate cases for achieving the purposes mentioned in Section 561A of the Code, the High Court can review its judgment in its exercise of inherent power gets support from the majority view expressed in Full Bench decision of the Allahabad High Court in (3) Rajnarain V. The State (A.I.R. 1959 Allahabad 315). 5. The view that in appropriate cases for achieving the purposes mentioned in Section 561A of the Code, the High Court can review its judgment in its exercise of inherent power gets support from the majority view expressed in Full Bench decision of the Allahabad High Court in (3) Rajnarain V. The State (A.I.R. 1959 Allahabad 315). On an examination of a large number of cases including the aforesaid Supreme Court decision in Chopra's case Bhagwati, J. (as he then was) with whom Chaturvedi, J. agreed, held that the High Court has an inherent power to revoke, reviews, recall or alter its own earlier decision in a criminal revision and to rehear the same in special circumstances where exercise of such power is necessary to give effect to any order under the Code or to prevent the abuse of any process of the court or otherwise to secure the ends of justice. Same view has been expressed in a decision of the Punjab and Haryana High Court in (4) Lal Singh V. The State (A.I.R. 1970 P. & H. 32). Herein also a large number of cases including the aforesaid Chopra's case had been considered. In that case a reference was made by the Sessions Judge to the High Court recommending that the order passed in a proceeding under Section 145 of the Code be set aside. Notices were issued to the parties that the matter would be heard on 31st July, 1968. It would appear that service of notice had not come, inspite of that, simply with the observation that the respondents were no longer interested in the matter, the High Court accepted the recommendation of the Sessions Judge and set aside the order of the learned Magistrate. Subsequently some of the parties to the litigations filed an application on 6th August, 1968, urging that the notices for appearance were actually delivered to them on the 4th August, 1968, that is, after the disposal of the case and as such they prayed that the order be recalled and the matter be reheard in their presence. Therefore a question arose if the court could recall the order and rehear the matter under the circumstance of that case. Therefore a question arose if the court could recall the order and rehear the matter under the circumstance of that case. On review of the large number of cases including the Supreme Court decision in Chopra's case, the High Court held that the power to grant rehearing in appropriate case would obviously fall within the ambit of inherent powers of the court. It therefore held that the High Court in its inherent power is fully empowered to revoke and review or recall or alter its earlier decision in criminal revision and to rehear the same in appropriate cases. In exercise of such power in that case the High Court allowed the Miscellaneous application and directed the reference to be reheard. In (5) Ramballabh Jha V. The State of Bihar (A.I.R. 1962 Patna 417) in exercise of power under Section 561A of the Code the order dismissing the appeal was set aside and the appeal was ordered to be reheard in view of the circumstance of that case. Similar view was expressed by the Mysore High Court in (6) In re Biyama (A.I.R. 1963 Mysore 326). Inherent power was exercised and a case was restored for securing the ends of justice by this Court in (7) Ramautar Thakur V. State of Bihar (A.I.R. 1957 Patna 33). 6. Counsel for the opposite party has, however, referred to a decision of the Allahabad High Court in (8) Jagannath Singh & another V. Bidheshi & others (A.I.R 1955 Allahabad 712). But that decision is no authority for the proposition that in no case the order passed in revision can be reviewed. The observation is- “.......In normal circumstance the High Court has no power to review its previous decision in a criminal case but that where mandatory provision of law has been contravened resulting in abuse of the process of the Court it is entitled to correct obvious error.” It also supports the view that in appropriate cases order passed in revision can be reviewed. The next case referred to by the learned counsel for the opposite party is a Full Bench decision of Andhra Pradesh High Court in (9) Public Prosecutor V. Devireddi Nagi Reddi (A.I.R. 1962 Andhra Pradesh 479). In view of the facts and circumstances of that case the order of the High Court was not quashed under Section 561A. The next case referred to by the learned counsel for the opposite party is a Full Bench decision of Andhra Pradesh High Court in (9) Public Prosecutor V. Devireddi Nagi Reddi (A.I.R. 1962 Andhra Pradesh 479). In view of the facts and circumstances of that case the order of the High Court was not quashed under Section 561A. Nevertheless the Full Bench approved the view held in some decision that in cases where the order is passed without jurisdiction or in default of appearance a review can be granted under Section 561 A of the Code. Another case referred to is a decision of Calcutta High Court in (10) Kalipada Jana V. Sarbeswar Panda (A.I.R. 1958 Calcutta 568.). This decision also does not support the view that in no case a decision in a revision can be reviewed. The learned Judge has expressed himself in restricted words that where a, criminal revision has been disposed of after notice to the opposite party and after going into the matter in full and on an examination of the records, the High Court had no jurisdiction to review its judgment or alter its order and as such the application for restoration of the case is not maintainable. That is to lay by implication the observation is that if there was no notice to the opposite party there could be review of the judgment. Moreover the point in issue does not appear to have been dealt with in all its aspect, on a consideration of the decisions holding the contrary view. Another decision relied on is in the case of (II) Bhanja Naik V. Somnath Mohanty (A.I.R. 1969 Orissa 268). This is a judgment of a Single Judge. He has preferred to rely upon the minority decision of O.H. Moothem, C.J. in (3) Rajnarain V. the State (A.I.R. 1959 Allahabad 315) as also on some other decisions. For the reasons stated above, with respect, I am not in agreement with the view that in no circumstance this Court can review the order for the reason that it has become functus officio in respect of the criminal revision after the final judgment was passed therein. 7. Thus in my opinion, in appropriate cases this Court can review its order passed in criminal revision in exercise of its power under Section 561A of the Code for any of the purposes mentioned therein. 8. 7. Thus in my opinion, in appropriate cases this Court can review its order passed in criminal revision in exercise of its power under Section 561A of the Code for any of the purposes mentioned therein. 8. Now the question comes as to whether the instant case is a fit case in which there is occasion for exercise of the inherent power for rehearing of the criminal revision. 9. The ground for rehearing, as stated by the petitioner, is that no notice was served upon him and therefore he had no opportunity to appear and place his case before this Court at the time the revision was taken up for hearing. In this connection it would appear from the record that petitioner Ram Chandra Prasad Yadav and Vijay Prasad Yadav were second party to the proceeding under Section 145 of the Code. Both of them were claiming the disputed properties by virtue of the sale deeds one executed in the names of their respective sons. They had appeared in the proceeding by a common Vakalatnama. They contested the proceeding together. There is nothing to show that Vijay Prasad Yadav became hostile to the petitioner at any time. Under such circumstances, if Vijay Prasad Yadav received the notice not only for himself but also for Ramchandra Prasad Yadav in presence of the latter it cannot be said that this petitioner had no information about the institution of the criminal revision. The report of the peon is that he met both Vijay Prasad Yadav and Ramchandra Prasad Yadav and that he handed over the notice in their names, for which Vijay Prasad Yadav granted the receipt. There is no reason to doubt the correctness of the report of the peon. The petitioner says that it was on 8-12-1969 that the father of the petitioner learnt from Ajablal Yadav that Anirudh Yadav was telling him that a case against the order under Section 145 had opened in the High Court. Anirudh Yadav was a member of the first party. The proceeding was decided in his favour. The petitioner says that it was on 8-12-1969 that the father of the petitioner learnt from Ajablal Yadav that Anirudh Yadav was telling him that a case against the order under Section 145 had opened in the High Court. Anirudh Yadav was a member of the first party. The proceeding was decided in his favour. If bearing of the revision had opened on the 5th December, 1969 in absence of the petitioner it is not probable that Anirudh Yadav would give out to anyone that his case was being heard in the High Court thereby taking the risk that the news may reach his opponent who may take necessary step in the matter. It has been urged by the counsel for the petitioner that had the petitioner learnt about the filing of the revision application, there could be no reason for him to sit quiet and allow the case to be beard ex-parte. There is no force in this contention. If Vijay Prasad Yadav, who had got some interest in the disputed property as the petitioner had and in whose favour also the order was passed by the trial court could for some reason or the other, may be negligence or carelessness, did not choose to appear in spite of personal service of notice on him, and contest the revision application, there could be no improbability if Ramchandra Prasad Yadav also for similar reason failed to take step at the appropriate moment. This circumstance alone, therefore, will not indicate that no notice was served on the petitioner and that he had no knowledge about the institution of the revision in this Court till before its disposal. 10. Counsel for the opposite party has further urged that even if it be assumed that there was no service of notice upon the petitioner, in view of the provisions of Section 440 of the Code, he had no right to be heard either personally or through pleader in the aforesaid revision. Section 440, no doubt lays down that no party has any such right of hearing before any court when exercising its power of revision. What is to say, in a revision the court can proceed ex parte, except in a case which is covered by Section 439 (2) of the Code which relates to accused persons in a criminal case. Section 440, no doubt lays down that no party has any such right of hearing before any court when exercising its power of revision. What is to say, in a revision the court can proceed ex parte, except in a case which is covered by Section 439 (2) of the Code which relates to accused persons in a criminal case. The revision concerned in the instant case was a revision against an order in a proceeding under Section 145 of the Code. Therefore Section 439 (2) of the Code has no application. Hence, the opposite party in the criminal revision have no right to be heard. The court have proceeded without issuing any notice to the opposite party in that criminal revision. But the question is whether the court chose to proceed under Section 440 of the Code. When the revision application was filed, the order was to issue notice and as a matter of fact notices were issued. This would mean that the court did not like to proceed under Section 440, but wished to hear the other side. Under such circumstances, if after the notices were issued and if it would have been found that notices upon the opposite party were not served, then in my opinion, in its inherent power this Court could have reviewed the order. But in the instant case, as I have said above, there was service of notice and the petitioner had information about the institution of the criminal revision and as such the question of review on this ground does not arise. 11. In view of what has been said above, this Criminal Miscellaneous application is dismissed. Application dismissed.