JUDGEMENT This is a petition filed under Sec. 482, Cr. P. C. for a review of this Court's decision rendered in Criminal Appeal No. 25/75.* *See 1977 Cri LJ NOC 71 (Goa). 2. The matter arises in the following manner :- The applicant Dr. J. M. Almeida, was placed on trial for offences said to have been committed by him under Section 161, I. P. C. and Sec. 5 (2) r/w. Sec. 5 (1) (d) of the Prevention of Corruption Act, 1947. He was acquitted of the aforesaid charges. The State came in appeal against the said order of acquittal to this Court. The appeal memo dated 5th Nov. 1975 that was presented to the court was signed by Joaquim Dias as Government Advocate. This Court granted special leave to appeal on 18-10-1975. After hearing the appeal on merits, this Court allowed it on 30th August, 1976 setting aside the order of acquittal and remanding the case to the Trial Court for disposal in the light of the observations made therein. As Mr. Joaquim Dias had not been appointed as Public Prosecutor for this Court either on the day the appeal petition was presented or on the day special leave was accorded to the Appellant, the disposal of the appeal by this Court was a nullity and without jurisdiction, not having been preferred by the competent person. Hence the application for review. 3. The State having raised a preliminary objection regarding maintainability of this petition of review, it is necessary to decide first whether the petition is maintainable under Sec. 482, Cr. P. C., 1973. 4. The learned advocate for the petitioner relying on two decisions of Allahabad High Court reported in AIR 1950 All 652 and AIR 1951 All 441 , which arose under the old Code of Criminal Procedure, has argued that under Sec. 482 of the new Code, this Court has powers to review its judgment As against this, on behalf of the State, reliance has been placed on two decisions, one reported in AIR 1962 All 193 and the other reported in AIR 1965 Mys 224. 5. Section 482 of the new Code reads as follows :- "482. Saving of inherent powers of High Court. 5. Section 482 of the new Code reads as follows :- "482. Saving of inherent powers of High Court. Nothing in this Code shall be deemed to limit or affect the inherent powers 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." A persual of the provision contained in the aforesaid section, makes it clear that this section does not confer new powers but merely safeguards or preserves the existing inherent powers. It was so held by the Privy Council in Emperor v. Nazir Ahmed, (1944) 71 Ind App 203. To the same effect are the observations of the Supreme Court in Talab Haji Hussain v. Madhukar Purshottam, AIR 1956 SC 376. It further follows that this inherent power cannot be invoked where another remedy is available and also that the powers so exercised cannot be made to override any express provision of law. Section 393, Cr. P. C. (corresponding to Section 430 of the old Code) speaks about finality of judgments and orders on Appeal. Thus the said section will apply in full force. There is no provision in the Cr. P. C. empowering the Court to review its appellate judgment or order. The question is whether S. 482 can therefore override an express provision of the Code by inventing a new category of inherent jurisdiction. The Allahabad High Court in the case of Sadhu Singh v. State, AIR 1962 All 193 seems to have taken the view that S. 561-A cannot override the express provision of the Code. This case came up for consideration in a later case of the same High Court in Mahesh v. State of U. P., 1971 Cri LJ 1674 (FB). Reference to Sadhu Singh's case is to be found in paras 1, 5, 7, 36, 57 and 67 of the judgment under reference. It may be mentioned here that to the Full Bench constituted to decide the case of Mahesh (supra) the correctness of the Full Bench decision in Raj Narain v. State ( AIR 1959 All 315 (F)) and the Division Bench decision in Sadhu Singh v. State ( AIR 1962 All 193 ) had been referred for consideration. It may be mentioned here that to the Full Bench constituted to decide the case of Mahesh (supra) the correctness of the Full Bench decision in Raj Narain v. State ( AIR 1959 All 315 (F)) and the Division Bench decision in Sadhu Singh v. State ( AIR 1962 All 193 ) had been referred for consideration. Mathur, J. speaking for himself and on behalf of Kirty, Sinha and Singh, JJ. observed :- "Our answer to the matter referred to us therefore is that the decisions in AIR 1959 All 315 (FB) and AIR 1952 All 193 , are correct though a few observations made therein are not in accordance with the law. The legal position can be summarised by laying down that the High Court is not possessed of a general power to review, revise or reconsider the judgment or order duly pronounced in a Criminal Appeal or a Criminal Revision, though the judgment or order can be so reviewed, revised or reconsidered in exceptional circumstances in exercise of the inherent powers under S. 561-A, Cr. P. C. provided that the inherent power is so exercised for one of the three purposes detailed therein." In this case the Full Bench of the Allahabad High Court has, after considering a plethora of decisions, come to the conclusion as stated above. In this view of the matter, I doubt if the State can derive any assistance from the case of Sadhu Singh (supra) earlier decided by the same Court. 6. The next case relied by the State is the case of Dasappa v. State of Mysore, AIR 1965 Mys 224. In that case the accused were sentenced to rigorous imprisonment of 4 months for offence under S. 380 of I. P. C. Against the said order they filed Criminal Revision Petitions which were dismissed by the High Court. Subsequently they filed Revision (Review?) Petitions praying that they were respectively aged 32 years and 17 years, that they had clear antecedence and hailed from respectable families and that they should be given the benefit of the provisions of the Probation of Offenders Act. Subsequently they filed Revision (Review?) Petitions praying that they were respectively aged 32 years and 17 years, that they had clear antecedence and hailed from respectable families and that they should be given the benefit of the provisions of the Probation of Offenders Act. It was contended by the Advocate for the convicts that it was through oversight that he could not make his submissions on the question of sentence in the light of the provisions of the Probation of Offenders Act at the time when be argued the Revision Petition and that the Court should consider that new point to secure the ends of justice under the inherent power conferred by S. 561-A of the Cr. P. C. It was held that the case of the petitioners did not come under any of the provisions of the Criminal Procedure Code and the Review Petition was misconceived. Such a review would be clearly against the principle of finality of orders of dismissal passed by the High Court and that the petitioners were to blame themselves for not having apprised their Advocate on all material facts. It may however be pertinent to make a reference to another observation made by the Court in another paragraph of the judgment. It is to the following effect :- "The inherent power can no doubt be exercised to reconsider orders of dismissal or an appeal or application passed; without jurisdiction where reconsideration is necessary to secure the ends of justice. But the provisions of Ss. 4 and 6 of the Probation of Offenders Act are not mandatory provisions of law and the order of sentence passed on the petitioners could not be said as one without jurisdiction." From the aforesaid observation of the Court, it would be clear that inherent powers could be exercised for reconsidering orders of dismissal of an appeal or application passed without jurisdiction. So it cannot be said that the reconsideration of orders cannot be made under any circumstances, though in that case having regard to the facts and circumstances involved therein the Court rejected the praper for a review. No view to the contrary expressed by the Supreme Court has been brought to my notice. The position that emerges on consideration of the decisions referred to is that inherent powers under S. 482, Cr. No view to the contrary expressed by the Supreme Court has been brought to my notice. The position that emerges on consideration of the decisions referred to is that inherent powers under S. 482, Cr. P. C. cannot be called in aid in respect of any matter which is covered by the specific provisions of the Code, nor can the same be pressed into service contrary to or inconsistent with any such provisions. The inherent powers can not also be exercised to do what the Code prohibits expressly or by implication. Such powers should be used only for doing justice in the case or for preventing (the abuse of) the process of the Court or for making such orders as may be necessary to give effect to any order under the said Code. In other words whenever the inherent powers are exercised, they shall be exercised for one of the three purposes just mentioned above and as embodied in S. 482, Cr. P. C. In this connection it will be pertinent to read the following observation of Beg, J. (as he then was) who spoke separately in Mahesh v. State of U. P. (FB) (supra) :- "x x x We do not possess or exercise any general powers of review or revision over our own judgments and orders but could annul or set aside a judgment or order of this Court only on proved and essentially collateral grounds of such a nature that a bare statement of facts is enough, without any need for argument, to disclose that the very basis of the judgment or order sought to be revoked has disappeared." 7. The next point for consideration is whether the instant case is one such imperative case that calls for review. Mr. Lobo, learned Advocate for the petitioner submits that there is one fact, which is not connected with the merits of the case capable of removing the very assumption on which the judgment rests and that itself would be sufficient to justify annulment of the finality attached to the judgment. 8. This brings me to the question whether the appeal in question as presented by Mr. J. Dias was proper and valid and if not the effect thereof. Mr. 8. This brings me to the question whether the appeal in question as presented by Mr. J. Dias was proper and valid and if not the effect thereof. Mr. A. Lobo, learned Advocate appearing for the petitioner to support his contention has referred to four decisions of the Calcutta High Court rendered in four separate cases reported in AIR 1914 Cal 560; AIR 1965 Cal 79 ; AIR 1969 Cal 321 and 1977 Cri LJ 853 (Cal). Before I go into those decisions, it will be pertinent to make mention of a few facts relating to appointment of a Public Prosecutor for this Court so that it would be easy to understand the principle decided in those cases. Mr. Joaquim Dias was appointed as Government Advocate for the purposes of conducting all cases for and on behalf of the respondent before the Judicial Commissioner's Court, District Court, other Courts and Tribunals of this Union Territory with effect from 1-1-1970 for the period of 7 years vide Order No. LD/7-10/1972 dated 1-8-72 published in the Government Gazette Sr. II, No. 18 dated 3-8-72. This appointment was obviously made prior to the introduction of the new Cr. P. C. in which S. 492 was replaced by S. 24. Material changes have been effected by the new provision since under S. 492 of the old Code the State Government could appoint generally of in any case or in specified class of cases in any focal area one or more officers to be called Public Prosecutors. Under the new provision, appointment of a Public Prosecutor has been made mandatory. Such appointment again in case of Public Prosecutor for the High Court which is a new provision is to be made after constitution with the High Court and those for the District in consultation with the Sessions Judge. Further It has been provided that a person eligible to be appointed as a Public Prosecutor must be in practice as an Advocate at the Bar for not less than 7 years. These are the changes which were not there in the old Code but have been brought about by the legislature in the new Code. After the enactment of the new Cr. These are the changes which were not there in the old Code but have been brought about by the legislature in the new Code. After the enactment of the new Cr. P. C., 1973, the State Government vide their letter No. LD/2101/74 dated 28-3-74 requested the Judicial Commissioner's Court to convey its concurrence for the appointment of Shri J. Dias as Public Prosecutor before the Judicial Commissioner's Court under S. 24 of the Cr. P. C. From the written reply filed on behalf of the State it will appear that till 5th Nov., 1975 this Court had not sent its views as to whether Mr. Dias was a fit Advocate to be appointed as Public Prosecutor despite reminders. No such decision was also conveyed to the Government till 17-1-78 when another D. O. reminder was issued by the Government to this Court. 9. Now I come to the decisions. Since the case of Superintendent and Remembrancer of Legal Affairs v. Prafulla Majhi, 1977 Cri LJ 853 is the latest decision of Calcutta High Court, I deem it necessary to take up that case first. In that case the two respondents were tried on a charge under S. 302/ 109, I. P. C. by the Sessions Judge, Purulia and were acquitted Being aggrieved by the said order of acquittal the State preferred an Appeal. The appeal was filed by the Superintendent and Remembrancer of Legal Affairs on behalf of the State. The petition of appeal was signed by one Shri Dilip Mitra, the Special Legal Remembrancer and ex-officio Special Secretary, Judicial Department of the State Government. Shri Mitra was purporting to act as_ the L. R. and as such the ex-officio Public Prosecutor in all cases coming the Calcutta. High Court in its Appellate Side under the Notification dated Oct. 11, 1974 in which, the Government of West Bengal was pleased to appoint the Superintendent and Remembrancer of Legal Affairs, West Bengal to be ex-officio Public Prosecutor in all cases coming before the Calcutta High Court on its Appellate Side. The Court found that the appointment of the Public Prosecutor for the High Court under the Notification dated, Oct. 11, 1974 was not a valid appointment at all. After examining the provision contained in S. 378, cl. The Court found that the appointment of the Public Prosecutor for the High Court under the Notification dated, Oct. 11, 1974 was not a valid appointment at all. After examining the provision contained in S. 378, cl. (1), the Court observed :- "The legislature having made a special provision for such appeals by prescribing that such an appeal is to be presented through the Public Prosecutor that has to be fulfilled and the State cannot fall back on S. 382 and itself file the appeal excluding the Public Prosecutor from the field altogether. On the scheme of the legislation and the intent of the legislature it was clearly obligatory on the part of the State to associate the Public Prosecutor in the matter of preferring an appeal against an order of acquittal and not associating him where the Public Prosecutor exists would certainly invalidate the act of filing the appeal, xxx However, there may arise a situation where a Public Prosecutor may not be available. Where such is the situation, it can certainly be said that fulfilment of the statutory requirement of presenting an appeal through the Public Prosecutor or conducting the same through a Public Prosecutor would be an impossibility for the time being. In such circumstances, it would be legitimate to invoke the maxim 'lex non cogit ad impossibilia' which means dispensing performance of what is prescribed when performance of it is impossible. Where the State did make an appointment, however erroneous it may be, believing it to be a good appointment and the Legal Remembrancer by virtue of such an appointment had proceeded to act as the Public Prosecutor, filed the appeals and conducted the same but the appointment was adjudged by the Court to be not in accordance with law, it was not possible to rectify the defect Approval of the High Court was also accorded, however irregularly it may be, by the Registrar purporting to act on behalf of the High Court and thus leading the State to believe that there would be due compliance with the statutory requirement as and when the Public Prosecutor so appointed assumed office and discharged his duties. In such facts and circumstances due performance of the statutory requirement was rendered impossible and hence the non-compliance which resulted therefrom should be excused." 10. The position that emerges from the aforesaid decision is that though S. 382, Cr. In such facts and circumstances due performance of the statutory requirement was rendered impossible and hence the non-compliance which resulted therefrom should be excused." 10. The position that emerges from the aforesaid decision is that though S. 382, Cr. P. C. provides that the appeal should be presented in the form of a petition by the appellant or his Pleader, that provision does not override the requirement of S. 378 of the said Code which is a special provision in respect of an appeal against acquittal. The legislature having made such a provision for such appeals by prescribing that they are to be presented through the Public Prosecutor, that has to be fulfilled and the State cannot fall back on S. 382 and itself file the appeal ignoring the Public Prosecutor. The State according to the scheme of the legislation and the intent of the legislature is bound to associate the Public Prosecutor in the matter of preferring an appeal against acquittal. Where there is a Public Prosecutor but the State has not associated him in preferring the appeal, the act of filing the appeal will be invalid. Section 378 of the Cr. P. C. is thus mandatory. However, a situation may arise where a Public Prosecutor may not be available to be associated in the matter of preferring appeal against acquittal, rendering thereby fulfilment of the statutory requirement of presenting the appeal an impossibility. In such a situation the principle, dispensing performance of what is prescribed when performance of it is impossible, can be invoked. 11. Now coming to the facts of the instart case to which I have already made a reference, it will be seen that after introduction of the new Cr. P. C. this administration immediately wrote to this Court to convey Court's concurrence as to if Mr. Dias is to be appointed as Public Prosecutor of this Court in order to appoint a Public Prosecutor for this Court as required under S. 24, Cr. P. C., 1973. The Court for reasons best known to itself and with which I am not presently concerned did not convey their concurrence. It is also not in dispute that despite valid (invalid?) appointment of Mr. Dias as Public Prosecutor for this Court he has been discharging his duties as such without any objection from this Court. P. C., 1973. The Court for reasons best known to itself and with which I am not presently concerned did not convey their concurrence. It is also not in dispute that despite valid (invalid?) appointment of Mr. Dias as Public Prosecutor for this Court he has been discharging his duties as such without any objection from this Court. In other words, this Court has never objected to his conducting cases coming before this Court as Public Prosecutor. Be that as it may, the fact remains that there was no Public Prosecutor appointed in terms of S. 24 of the Cr. P. C., 1973 when the appeal against acquittal of the petitioner was presented signed by Mr. Dias. It is not a case where there was a Public Prosecutor duly appointed but he was not associated in the matter of preferring the appeal. This is a clear case where performance of the statutory requirement was an impossibility on account of the fact that there was no Public Prosecutor in existence at the time of filing the appeal and this situation had arisen not on account of Government's negligence but clearly due to this Court's failure to convey the concurrence in time. In my view there appears to be no difficulty in calling in aid the aforesaid principle. Consequently my finding is that filing of the appeal through another Advocate who is not the Public Prosecutor by the State cannot in the circumstances be objected to as invalid. In other words, non-compliance with the statutory requirement deserves to be excused. Once such a view is permissible to be taken about which I have no doubt the contention that the decision rendered by this Court in the Criminal Appeal is a nullity being without jurisdiction becomes devoid of any merit and is denuded of any force. In this view of the matter, I do not feel the necessity to refer to the other three decisions of the Calcutta High Court. 12. On the analysis made above I am inclined to take the view that no case for review has been made out and consequently the petition for review is dismissed but in the circumstances without costs. In this view of the matter, I do not feel the necessity to refer to the other three decisions of the Calcutta High Court. 12. On the analysis made above I am inclined to take the view that no case for review has been made out and consequently the petition for review is dismissed but in the circumstances without costs. The Special Judge should now proceed with the case as per the directions contained in this Court's appellate judgment and dispose of the case as early as possible, if possible by giving priority to this case in view of the fact that it is a very old case. Petition dismissed.