SK. BARKAT v. STATE OF ORISSA — 1973 DIGILAW 214 (ORI)

JUDGMENT : S.K. Ray, J. - This casehas come before the Division Bench on a reference being made to it by the learned Chief Justice, who heard it in the first instance. The order of reference runs as follows: In this case in ground No. 2 it has been stated that the notice of enhancement was never a comprehensive notice and it was of a limited character. This contention appears to have been based on a Single Judge decision of this Court reported in Ramchandra Agarwal and Ors. v. State 39 (1973) C.L.T. 915. Let this case be heard by a Division Bench on the question whether notice of enhancement was of a limited nature and to examine the correctness of Ramchandra Agarwal and Ors. v. State 39 (1973) C.L.T. 915. After the Division Bench gives its opinion, the case would come back to the learned Single Judge who originally disposed of Cr. Rev No. 121 of 1973. The case be put up before the Division Bench for hearing next week. 2. The facts giving rise to the aforesaid Misc. Case may now be briefly stated. The Petitioner was prosecuted for an Offence u/s 47(a) of the Bihar and Orissa Excise Act, 1915, being in illegal possession of 66.550 litres of outs till liquor in 121 bottles which were seized by the Excise staff on 20-11-1972. He was convicted and sentenced to pay a fine of Rs. 10/-, in default, to undergo S.I. for 7 days, by Shri R.S. Misra, Magistrate II Class, Cuttack. The State field Cr. Rev. No. 121/73 before this Court on the ground that the sentence awarded by the Magistrate was grossly inadequate. In this Criminal Revision a notice for enhancement was issued to the Petitioner, upon receipt of which he appeared and showed cause. Ultimately the Hon'ble Chief Justice allowed this Criminal Revision by his order dated 30-7-1973 and enhanced the sentence by imposing a sentence of one month S.I. and a fine of Rs. 500/- in default, to undergo a further imprisonment of one month. Thereafter, the Petitioner filed an application for review of the aforesaid order of enhancement, upon which the present Misc. Case, under consideration, was registered. 3. Two questions arise for determination firstly, whether the notice of enhancement issued in Cr. Rev. No. 121/73 was not of comprehensive nature, but was only of a limited character. Thereafter, the Petitioner filed an application for review of the aforesaid order of enhancement, upon which the present Misc. Case, under consideration, was registered. 3. Two questions arise for determination firstly, whether the notice of enhancement issued in Cr. Rev. No. 121/73 was not of comprehensive nature, but was only of a limited character. Secondly, whether the case reported in Ramchandra Agarwal and Ors. v. State 39 (1973) C.L.T. 915, has been rightly decided in so far as it has laid down that this Court has unlimited jurisdiction u/s 561A of Code of Criminal Procedure to review its own order both on question of facts and as well as on points of law. 4. The answer to the first question does not create any difficulty at all. The sole prayer in Cr. Rev. No. 121/73 was to enhance the sentence awarded by the Magistrate. By order dated 13-3-1973 this Court passed the following order: Issue notice on the question of admission and hearing. A copy of the notice served on the Petitioner has been produced by the Petitioner under affidavit. It states as follows: Take notice that an application, a copy whereof is annexed herewith has been made to this Court by the above-named Petitioner, and you are hereby directed to show cause on 18-5-1973 why the application should not be admitted; granted and sentence inflicted on you by Shri R.S. Misra, Magistrate II Class (J) Cuttack on 5-12-1973 in 2(a) C.C. 480 of 1972 may not be enhanced. It is clear that the notice of enhancement issued to the Petitioner was unqualified and comprehensive and contained no limitation whatsoever, and there is absolutely no scope for an argument that it was of limited character. Therefore, in my view there can be no iota of controversy that the notice of enhancement, in question, was a comprehensive one and not of limited character. 5. I will now pass on to the second question. Before referring to the relevant. provision of Code of Criminal Procedure having a bearing on the question at issue, it is necessary to set out briefly the context of facts in, Ramchandra Agarwal's case 39 (1973) C.L.T. 915 whose correctness is under consideration. A number of firms including that of Ramchandra Agarwal had their business premises at Malgodown, Cuttack. Before referring to the relevant. provision of Code of Criminal Procedure having a bearing on the question at issue, it is necessary to set out briefly the context of facts in, Ramchandra Agarwal's case 39 (1973) C.L.T. 915 whose correctness is under consideration. A number of firms including that of Ramchandra Agarwal had their business premises at Malgodown, Cuttack. These premises were raided by the Vigilance Police on 1-2-1967 and certain documents were seized therefrom which revealed transactions of forward contract in ground-nut oil prohibited by law. Criminal cases were instituted against these firms and their partners u/s 20(e) of the Forward Contracts (Regulation) Act, 1952. These cases were tried by the A.D.M. (J), Cuttack, who convicted the Petitioners for the offences charged and inflicted a consolidated fine of Rs. 2,000/-, in default, to undergo S.I. for 3 months. Though each of the Petitioners found to have committed three separate offences u/s 20(e) of the Forward Contracts (Regulation) Act, 1952, the A.D.M.0) inflicted a consolidated fine of Rs. 2000/- on each for all the three offences. These accused persons appealed to the Sessions Judge, who dismissed their appeals in the following terms: The statute having prescribed the minimum punishment of a fine of Rs. 1,000/- for the offence, the learned A. D. M. should not have awarded a consolidated sentence of fine of Rs. 2,000/- for all the three offences against each of the Appellants. Such a sentence is illegal inasmuch as the provisions of Section 367(2), Code of Criminal Procedure are not compared with While, therefore, maintaining the convictions of both the Appellants I would set aside the consolidated sentence of fine and recommend to the Hon'ble High Court to pass appropriate sentences. In the forwarding letter to the Court, the Sessions Judge, Cuttack stated to the same effect as follows: The statute prescribes the minimum punishment of a fine of Rs. 1,000/- for the offence. On appeal I have upheld the conviction, and setting aside the consolidated fine of Rs, 2000/-. I recommend that the Hon'ble Court may be pleased to pass appropriate sentences for the three offences separately against each of the accused. The accused persons also filed Criminal Revisions in this Court against their convictions upheld by the Sessions Judge. On appeal I have upheld the conviction, and setting aside the consolidated fine of Rs, 2000/-. I recommend that the Hon'ble Court may be pleased to pass appropriate sentences for the three offences separately against each of the accused. The accused persons also filed Criminal Revisions in this Court against their convictions upheld by the Sessions Judge. Criminal Revisions as well as Criminal References were heard by Justice K.B. Panda, who dismissed the Revisions, accepted the References and enhanced the sentences by his order 7-5-1973 by imposing substantive sentences of imprisonment of 6 months R.I. that is to say, 2 months for each of three offences, against the Petitioners in three criminal references and enhancing the sentence of fine to Rs. 3900/- at the rate of Rs. 1300/- for each of the three offences, in the rest of the reference cases. Thereafter, the petitions for review were filed. Mr. Justice Panda allowed the review applications holding that the notices of enhancement had been issued only for regularising the fines imposed which were less than the minimum provided under the Act and, as such, were of limited character and that he had ample jurisdiction u/s 561A of the Code of Criminal Procedure to review his previous judgment both on questions of facts and as well as on questions of law. He recalled his previous orders dated 7-5-1973 imposing substantive sentences of imprisonment and imposed afresh enhanced sentences of fine only, in default, to undergo R.I. for 6 months. He placed reliance on a Division Bench decision of this. Court, in the case of Simadri Nanda v. The State 36 (1970) C.L.T. 1176, in support of his view that Section 561A, Code of Criminal Procedure vested the High Court with unrestricted powers of review. 6. Notices of enhancement, which Mr. Justice Panda considered and interpreted to be of limited character, are extracted hereinbelow from his judgment. The initial order passed in Criminal Reference No. 13/72 runs thus: Admit. Issue notice fixing 20-3-1972 for appearance. The acceptance of the reference may have the effect of enhancement of the sentence. Let clear notice be given to show cause against enhancement of sentence. Paper book be prepared. The same order was passed in other reference cases. The initial order passed in Criminal Reference No. 13/72 runs thus: Admit. Issue notice fixing 20-3-1972 for appearance. The acceptance of the reference may have the effect of enhancement of the sentence. Let clear notice be given to show cause against enhancement of sentence. Paper book be prepared. The same order was passed in other reference cases. In pursuance of these orders, notices of enhancement were issued from the Deputy Registrar to the A.D.M.O), Cuttack for service on the Petitioner in the following words: Take notice that the above noted Criminal References case arising out of Criminal Appeal No. 254-C of 1970, preferred by you has been fixed to 20-3-1972 before the Hon'ble High Court, Orissa, Cuttack. You are directed to appear and show cause through your Advocate before the Hon'ble Court on the above date at 10-30 a.m. as to why the sentence inflicted on you shall not be enhanced. Failing to show cause, the matter shall be heard in your absence. The language of these notices clearly and unambiguously intimated the recipients thereof that failing to show good cause against enhancement their sentences may be enhanced to any extent within the maximum limit provided for the offences committed by them. The notices on the face of them, being unqualified are comprehensive ones and not of the limited character. The learned Judge construed them to be of a limited character on the hypothetical consideration that notices of enhancement in respect of sentences of fine should indicate how the enhancement is going to be worked out ultimately either by enhancing fines imposed or by imposing substantive sentences of imprisonment with or without fine, and, in the particular cases before him, such indications were wanting. His second line of reasoning reinforcing his aforesaid conclusions was that the recommendation of the Sessions Judge to pass appropriate sentences meant only regularisation of the sentence by imposing a fine at least of Rs. 1000/- for each offence and, in that context the notices of enhancement must necessarily be construed as of limited character rather than as comprehensive ones. Such a view is completely misconceived and without parallel as no case countenancing such a view has been brought to our notice. A notice of enhancement must mean what it says, unless the language of the notice is ambiguous requiring interpretation. Such a view is completely misconceived and without parallel as no case countenancing such a view has been brought to our notice. A notice of enhancement must mean what it says, unless the language of the notice is ambiguous requiring interpretation. Ambiguity cannot be introduced into an otherwise clear notice of enhancement by bringing extraneous matters into consideration. To determine as to what was conveyed under the notice the only document to be seen is the notice itself. When the notice is clear, as was the case before the learned Judge, there was no scope for him to hold the same to be limited in character by conditioning the notice by the recommendation of the Sessions Judge and what it appeared to him to mean. The power of the High Court to issue notice of enhancement is not to be controlled by the Sessions Judge's recommendation assuming it to mean that he recommended enhancement by way of regularising imposition of fine by imposing Rs. 1000/- for each offence instead of a consolidated fine of Rs. 2000/-. Section 438 which empowers the Sessions Judge to refer merely authorises him to bring any illegality or irregularity to the notice of High Court for passing of appropriate orders. He cannot recommend as to what orders to pass. In that case, the Sessions Judge did not make any such limited recommendation because the last part of his reference order clearly required the High Court to pass appropriate orders. It was open to the learned Judge who issued the notice of enhancement to limit it if he so desired but it was also equally open to him to issue a comprehensive one. In the case, under consideration, however, there were no words of limiting nature in the notice. For the aforesaid reasons, I have no manner of doubt in my mind that the notices of enhancement which the Hon'ble Justice Panda was considering were comprehensive ones and there was, with great respect to the learned Judge no legal and logical basis for his conclusion that they were of a limited character and that the Petitioners were confused as to the true meaning of such notices entitling him to review his previous judgment. 7. 7. The learned Judge seems to think, as is indicated from the general tenor of para 12 of his judgment that notice of enhancement issued in a Criminal Revision in Form 68 is basically different from such notice issued in a Criminal Reference in Form 138 and that white notice of enhancement in a Criminal Revision is to indicate how the enhancement is to work out, a notice of enhancement issued in a Criminal Reference is not required to do so and, therefore, such notice is open to interpretation in the context of antecedent facts. He has referred to a sample enhancement notice in Criminal Revision No. 190/73 to make the point, which runs as follows: Admit. Issue notice of enhancement to the Petitioner, to show cause as to why the sentence may not be enhanced to a period of at least one year's rigorous imprisonment. I must at once say that the notice extracted above does not indicate how the enhancement is to be worked out (to use the language of the learned Judge). There is nothing in the notice to prevent the Judge from passing any sentence below one year R.I. or to the maximum limit provided in law. I am not aware of any rule prescribing different forms of notice of enhancement one for use in Criminal Revisions and another for use in Criminal References. Code of Criminal Procedure does not provide for any such forms. Section 554(2)(b), Code of Criminal Procedure empowers a High Court to frame forms for every proceeding in the Code for which it thinks that a form should be provided. No such separate forms of enhancement notices for use in Criminal Revisions and Criminal References, as framed by this Court, have been brought to my notice. Even if there were separate forms, use of one or the other would be formal and ministerial in nature. The forms of notices of enhancement cannot control the power of the High Court to issue notice of enhancement and could not be intended to usurp the place of the order of enhancement of the Court. It is the order passed by the High Court as recorded in the order sheet and as carried into the form of notice which is to be looked into, not the form used. It is the order passed by the High Court as recorded in the order sheet and as carried into the form of notice which is to be looked into, not the form used. Section 439(1), Code of Criminal Procedure confers unrestricted power on the High Court to enhance sentences in all cases whether they come before it by way of revision or by way of reference and Sub-section (6) thereof requires that notice of enhancement is to be given to the accused before sentence is enhanced. In the circumstances, neither the form of notice of enhancement nor the antecedent facts are permissible factors for consideration in understanding the order passed by the Court in absence of inherent ambiguity therein, nor is it required to state in the notice as to how the enhancement is to be worked out. Nothing really turns on the forms used. 8. In dealing with the question of jurisdiction and power of High Court to review its judgment or order, the learned Judge relying upon a Division Bench decision of this Court in the case of Simadri Nanda v. The State 36 (1970) C.L.T. 1176. has stated as follows: The question of jurisdiction, it seems, is no longer res integra. There is a plethora of decision on the point : That apart Section 561A, Code of Criminal Procedure which in unequivocal terms confers inherent powers on the High Court speaks of the situations when it can be invoked. The third situation mentioned in it i.e. "or otherwise to secure the ends of justice"is quite broad and elastic indeed. It would be futile endeavour to lay down an exhaustive list of such situations. There are no two opinions, however, that the Court can go into facts or points of law, which were not considered for any reason and if considered at least would have tilted the issue to a great measure. I can do nothing better than close this issue referring to a Bench decision of this Court on the point : "On an overall examination of the statutory provisions, the High Court is unable to find any fetter whatsoever, express or implied, which would rule out the applicability of the inherent power of the High Court u/s 561A in respect of an order purporting to be based u/s 439. Code of Criminal Procedure. Code of Criminal Procedure. Therefore, it will not be correct to say that the inherent power which the Court possess to review a judgment made in the exercise of its revisional jurisdiction either relates to a matter covered by any specific provision of the Code or that its exercise is in any way incompartible with any express statutory provision. There is no express provision for review in the Code of Criminal Procedure like Section 114 and Order 47 of the Code of Civil Procedure. Whatever power of review is judicially ascribed to the High Court is on the basis of Section 561A Code of Criminal Procedure. That section runs as follows: 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. Thus the inherent power of the High Court is to be exercised for 3 purposes, namely, (a) to give effect to any order under this Code. (b) to prevent abuse of the process of any Court, and (c) otherwise to secure the ends of justice. The first purpose in Clause (a) clearly indicates that this inherent power is not to be exercised inconsistently with any other provisions of the Code nor can it be availed of in respect of any matter for which other provisions have been made in the Code, and it follows that the inherent power is to be exercised apart from cases envisaged in class (a) above, to prevent abuse of the process of any Court including the High Court to secure the ends of justice. Now the question is whether the judgment of the High Court passed u/s 439, Code of Criminal Procedure in a matter coming before it either on an application of the accused concerned or by way of reference u/s 438, after giving a full opportunity to the accused to place his case before it, can be reviewed on any ground of error of law or fact or on any ground which could have been taken but omitted to be raised during hearing which culminated in the judgment or order sought to be reviewed. The relevant sections of the Code of Criminal Procedure which have a bearing on this question are Sections 369, 424 and 430. These statutory provisions enshrine the principle of finality of the criminal Court judgments. These provisions are extracted herein below: S. 369. 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 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. Section 424. Judgments of subordinate Appellate Courts-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: Provided that, unless the Appellate Court otherwise directs, the accused shall not be brought up, or required to attend, to hear judgment delivered. So 430. Finality of orders on appeal 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. Reading Sections 424 and 369 it is clear that an appellate Court other than the High Court cannot alter or review the judgment except to correct a clerical error. Section 430 applies to judgments and orders of High Court upon appeal to it and imparts a finality to such judgments and orders except in cases provided in Section 417 and Chapter XXXII. Chapter XXXII contains provisions for reference and revision that is to say Sections 438 and 439. Judgments and orders passed by the High Court upon the appeals are final. u/s 439(1), the High Court is invested with the powers conferred upon a Court of appeal by Sections 423, 426 and 428. Thus the High Court exercising its revisional powers u/s 439, in fact, exercises powers conferred upon a Court of appeal though the matter has not come before it by way of appeal but by way of revision or by way of reference. Thus the High Court exercising its revisional powers u/s 439, in fact, exercises powers conferred upon a Court of appeal though the matter has not come before it by way of appeal but by way of revision or by way of reference. When notice of enhancement is issued, Sub-section (6) of Section 439, Code of Criminal Procedure confers a right on the accused to argue his case on merit, that is to say, to show cause against his conviction, and the original revision or reference case is then heard as a regular appeal. Section 430, Code of Criminal Procedure is thus attracted and finality is attached to the ultimate judgment or order passed by the High Court as if it is a judgment or order passed by an appellate Court upon appeal. The proposition that the High Court acting u/s 439, Code of Criminal Procedure is, in actuality, exercising its jurisdiction as an appellate Court is supported by high authority. The Privy Council in the case of Nagendra Nath Dev. v. Suresh Chandra Dev 59 I.A. 283 said that: There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a Subordinate Court, is an appeal within the ordinary acceptation, of the term.... Again in another case, Raja of Ramnand v. Kamid Rothen 4, the Judicial Committee held that the High Court hearing a civil revision petition from a decision in a suit of small causes nature was exercising jurisdiction as of superior Court of appeal and the Civil Revision was considered to be an appropriate form of appeal. Relying on these cases of the Privy Council the Supreme Court in the case of Shankar Ramchandra Abhyankar v. Krishnaji Dattaraya Bapat 53 I.A. 74.5.1970 S.C.D. 37, said regarding the true nature of right of appeal, that: The right of appeal is one of entering a superior Court and invoking its aid and interposition to redress the error of the Court below. Two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter ... Two things which are required to constitute appellate jurisdiction are the existence of the relation of superior and inferior Court and the power on the part of the former to review decisions of the latter ... The appellate jurisdiction may be exercised in a variety of forms and, indeed in any form in which the legislature may choose to prescribe. At another place in the same decision their Lordships of the Supreme Court said: It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider, and larger sense. The effect of this decision is that when a revision is filed in High Court it is done for the purpose of invoking its aid as a superior Court to rectify the error of a Court subordinate to it and, though the limits of that jurisdiction of the High Court u/s 115, CPC is circumscribed, never the less it is a jurisdiction which is exercised as a part of the general appellate jurisdiction of the High Court as a superior Court. In this case the Supreme Court accepted the principle enunciated in an earlier case of that Court, U.J.S. Chopra Vs. State of Bombay dealing with the revisional powers of the High Court u/s 439, Code of Criminal Procedure and applied it by analogy to the powers of the High Court u/s 115, Code of Civil Procedure. In Chopra case, the Supreme Court, by majority judgment, spoke of the doctrine of finality of High Court's criminal judgments u/s 439, Code of Criminal Procedure in following words: The principle as to the finality of criminal judgments has also been invoked while considering this question. This principle has been recognised by this Court in Janardan Reddy v. State of Hyderabad, where Fazi 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 provisions are to be found for correcting errors in appeal or in revision. Section 430, Code of Criminal Procedure-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 Section 417 and Chapter XXXII."Section 417 relates to appeals on behalf of Government in cases of acquittal by any Court other than a High Court and Chapter XXXII relates to reference and revision which also are powers exercised by the High Court over the judgments or orders of inferior Courts, thus excluding from the purview of this exception all judgments and orders passed by the High Court as an Appellate Court. 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, because in either case the High Court which is the highest Court of Appeal in the State would have pronounced its judgment, which judgment would replace the judgment of the lower Court and would be final. Even while exercising its revisional powers u/s 439 the High Court exercises any of the powers conferred on a Court of Appeal by Sections 423, 426, 427 and 428 and it is in effect an exercise of the appellate jurisdiction though exercised in the manner indicated therein. This principle of finality of criminal judgments therefore would equally apply when the High Court is exercising its revisional jurisdiction. Once such 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 Code of Criminal Procedure which would enable even the High Court to review the same or to exercise revisional jurisdiction over the same. The Supreme Court in Shankar Ramchandra's case gave express approval to the majority judgment in Chopra's case extracted and said: In the majority judgment it was held, inter alia, that 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 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. Thus the Supreme Court accepted the doctrine of finality as applicable to the judgment of the High Court passed in exercise of its jurisdiction u/s 439, Code of Criminal Procedure after issue of a notice and a full hearing, in presence of the concerned parties. It is, therefore, clear that when the High Court in exercise of its ordinary revisional jurisdiction u/s 439 is to be treated as, in effect, exercising jurisdiction of an appellate Court, it functions more so as a full fledged appellate Court when it gives a full hearing on questions of fact and law to the parties concerned in a Criminal Revision or a Criminal Reference, after issuing a notice of enhancement, and its final judgment rendered or order passed thereafter, as already stated, would acquire finality not only by reason of Section 430, Code of Criminal Procedure but also under the general principle of finality of judgments, referred to by Fazi Ali, J in Janardan Reddy's case. This view was also accepted by the Full Bench of the Allahabad High Court in the case of Mahesh v. State 1971 Cr L.J. 1674. 9. Mr. Justice Panda has relied upon a Division Bench decision of this Court in the case of Simadri Nanda v. The State 36 (1970) C.L.T. 1176. The learned Judges there did not rely upon the doctrine of finality elaborated upon by Bhagwati, J in Chopra's case by distinguishing it on the ground that the Supreme Court was not concerned in that case with the question of inherent power recognised u/s 561A. The learned Judges there did not rely upon the doctrine of finality elaborated upon by Bhagwati, J in Chopra's case by distinguishing it on the ground that the Supreme Court was not concerned in that case with the question of inherent power recognised u/s 561A. Their Lordships said: Thus, on an overall examination of the relevant statutory provisions, we are unable to find any fetter whatsoever, express or implied, which would rule out the applicability of the inherent power of the High Court u/s 561A in respect of an order purporting to be based u/s 439, Code of Criminal Procedure. If this dictum is correct, the consequence would be that the judgment of High Court passed u/s 439, Code of Criminal Procedure would be liable to be reopened at any time and also from time to time with regard to any point of fact or point of law which was for any reason, omitted, to be urged during first hearing and which a more sagacious lawyer has been later able to evolve or spin out. Mr. Justice Panda understood Simadri Nanda's case in the identical way and acted on its authority. The facts in Simadri Nanda's case were that the accused had preferred a Criminal Revision before High Court against his conviction and sentence and after dismissal of that revision petition, after full hearing, a review application was filed for the purpose of applying Section 6 of the Probation of Offenders Act. Their Lordships allowed the review application. Their Lordships did not consider the aspect that the High Court was essentially discharging appellate jurisdiction in exercising its functions u/s 439, Code of Criminal Procedure and the reasoning of Bhagwati. J in Chopra's case and the general doctrine of finality of judgment, which have been later approved in Shankar Ramchandra's case. The Supreme Court was dealing with the nature and extent of power and jurisdiction of High Court u/s 439, Code of Criminal Procedure and laid down the law. Dealing with questions of that kind, Section 561 is never a relevant consideration and therefore, to distinguish Chopra's case on the sole ground that Section 561A was not taken into consideration by the Supreme Court was not proper and valid. In view of these two Supreme Court cases the broad proposition laid down in this case as extracted above is not good law. There is another approach to this question. In view of these two Supreme Court cases the broad proposition laid down in this case as extracted above is not good law. There is another approach to this question. The scope and ambit of Section 561A have been dealt with by the Supreme Court in the case of Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another in the following words: It is only if the matter in question is not covered by any specific provisions of the Code that Section 561A 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 something 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 recognises the existence of inherent power in courts. The Supreme Court in two cases referred to above, on a consideration of Sections 430, 439 and other provisions of the Code held that the judgment of High Court u/s 439, Code of Criminal Procedure reaches finality which means that review is prohibited under other provisions of the Code of Criminal Procedure and, as such, Section 561A cannot be employed for that purpose. This reinforces my aforesaid conclusion that Simadri Nanda's case does not lay down good law. We are well aware of the legal position that one Division Bench of the High Court cannot overrule the decision of another Division Bench. But if the earlier Division Bench decision has failed to take into consideration relevant Privy Councilor Supreme Court decisions, it is not necessary for the later Division Bench to refer the matter for consideration by a larger Bench. In Simadri Nanda v. The State 36 (1970) C.L.T. 1176, the Division Bench did not consider the effect of Sankar Ramchandra Abhyankar v. Krishnnaji Dattaraya Bapat 1970 S.C.D. 37 and Talab Haji Hussain Vs. Madhukar Purshottam Mondkar and Another. We are bound to follow the Supreme Court decisions and hold that Simadri Nanda v. The State was not correctly decided. 10. As already stated, Mr. Madhukar Purshottam Mondkar and Another. We are bound to follow the Supreme Court decisions and hold that Simadri Nanda v. The State was not correctly decided. 10. As already stated, Mr. Justice Panda disposed of the Criminal References 13 and 15 to 21 of 1972 after notice of enhancement had been served on the accused and after a full hearing on merits in the presence of the parties. That judgment, for the reasons and discussions aforesaid, became final and was not open to review. Thus, in my view, the decision in Ramchandra Agarwal v. State 39 (1973) C.L.T. 915 was not correctly decided. 11. The case will now go back to the learned Chief Justice, who had referred it to a larger Bench for a limited purpose, for disposal. G.K. Misra, C.J. 12. I agree.