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1986 DIGILAW 332 (KER)

SHERIFFA v. ALIKUTTY

1986-09-12

BALAKRISHNAN, FATHIMA BEEVI

body1986
Judgment :- 1. The amplitude of the inherent power of the High Court to rehear an appeal or revision disposed of and review the judgment is required to be examined in this case. 2. In Padmachandran v. Radhakrishnan, 1984 K.L.T. 416 this court held: "For the purpose of securing the ends of justice if interference by the High Court is necessary, nothing said in any other provision will limit or affect the exercise of that inherent power. No doubt the High Court should exercise that power only very sparingly. There is no total ban on the exercise of inherent power where abuse of the process of the court or other extraordinary situation excites the court's jurisdiction. The limitation in respect of the inherent power is self-restraint, nothing more." In this view, the court allowed review of an earlier order dismissing a Criminal Revision Petition for default. A learned single judge of this Court felt that this decision required reconsideration in the light of the pronouncement of the Supreme Court in State of Orissa v. Ram Chander, A. I. R.1979 S. C. 87. The Supreme Court said: "Once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code which would enable the High Court to review the same or to exercise revisional jurisdiction." This decision had not been noticed by the Court in Padmachandran's case (supra). The learned single judge has, therefore, made the reference to the Division Bench. 3. S.482 of the Code of Criminal Procedure preserves the inherent power of the court providing that nothing in the 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 the Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice. The Section emphasises that the High Court has widest jurisdiction to pass orders to secure the ends of justice and for that purpose to entertain applications not contemplated by the Code. The terms of S.482 of the Code though wide do not extend the jurisdiction for matters which are not inherent within that jurisdiction. The Section emphasises that the High Court has widest jurisdiction to pass orders to secure the ends of justice and for that purpose to entertain applications not contemplated by the Code. The terms of S.482 of the Code though wide do not extend the jurisdiction for matters which are not inherent within that jurisdiction. The Supreme Court has laid down the guidelines for the exercise of the jurisdiction in Madhu Limaya v. State of Maharashtra, A. I. R.1978 S. C. 47 thus: "The power is not to be resorted to if there is a specific provision in the Code for the redress of the grievance of the aggrieved party. It should be exercised very sparingly to prevent abuse of process of any court or otherwise to secure the ends of justice. It should not be exercised as against the express bar of law engrafted in any other provision of the Code." 4. S.362 of the Code provides that save as otherwise provided by this Code or by any other law for the time being in force, no court, when it has signed its judgment or final order disposing of a case, shall alter or review the, same except to correct a clerical or arithmetical error. There had been conflict of opinion among the High Courts whether the Court under S.482 of the Code could or could not review a judgment or final order in a Criminal matter. That controversy must be deemed to have been settled by the decisions of the Supreme Court in State of Orissa v. Ram Chander. A. I. R.1979 S.C. 87 and Sooraj Devi v. Pyare Lal, A. I. R.1981 S.C. 736. In Rajan v. Vijayan, 1970 K. L. T. 495 it was held by this Court that a Criminal Court has no power to review its judgment when it has been signed and pronounced. But a petition disposed of without hearing the opposite party can be reopened and re-heard, because the power is inherent in the High Court that an erroneous act of the court done to the prejudice of one party can be remedied. In Kannan Kunhimangalam v. Food Inspector, Cannanore, A.I. R.1965 Ker. 37 the question was considered thus: "S. 561A of the Code does not confer any new powers on the High Court; it only preserves such inherent powers as the High Court already possesses. In Kannan Kunhimangalam v. Food Inspector, Cannanore, A.I. R.1965 Ker. 37 the question was considered thus: "S. 561A of the Code does not confer any new powers on the High Court; it only preserves such inherent powers as the High Court already possesses. The High Court has in the exercise of its inherent powers no right to set aside its own judgment in a criminal case on the ground that it is erroneous in law or in fact. The right of review is a creature of statute and in the absence of any provision in the Criminal Procedure Code judgments cannot be reviewed by the High Court. If a Court is found to have no jurisdiction to pass the order complained against, the High Court would have the jurisdiction to declare the judgment b nullity but there is a difference between inherent want of jurisdiction to entertain the matter and an irregular exercise of it.. If there is no lack of jurisdiction, but there is an illegal or irregular exercise of jurisdiction, the course open to the parties is only by way of appeal or revision." In Kunhammad v. Abdul Kader,1977 K. L. T. 840 the scope and ambit of powers under S.482 had been considered. The court pointed out that there is no express or specific provision in the Code of Criminal Procedure conferring powers of review of a judgment or order which has become final, on a criminal court. A Criminal Court cannot ordinarily review its own judgment, although it could do so in a few exceptional and extraordinary cases where there has been denial of natural justice, or the judgment or order has been passed without jurisdiction or in default of appearance or where cases have been disposed of not on merits or where the facts of the case are shocking to the judicial conscience and grave injustice has been done to any party etc. These are only a few illustrations, which cannot be taken as exhaustive. It is not desirable or expedient to lay down any inflexible or invariable rule in this regard. It has to be left to the discretion of the court to determine whether inherent power can or cannot be exercised on the facts and in the circumstances of an individual case. It is not desirable or expedient to lay down any inflexible or invariable rule in this regard. It has to be left to the discretion of the court to determine whether inherent power can or cannot be exercised on the facts and in the circumstances of an individual case. The principle of finality of judgments or orders passed in an appellate court on appeal incorporated in S.393 of the Code would equally apply to the judgments or orders passed by the High Court in the exercise of revisional jurisdiction. There is no general power possessed by the High Court to review, to reconsider or revise a judgment or order duly pronounced in a criminal revision, though a judgment or order can be reviewed, reconsidered or revised in exceptional circumstances, cautiously and sparingly in exercise of the powers under S.482 of the Code provided that the inherent powers are so exercised for one of the three purposes enumerated in the Section. 5. In Bhanu v. Vilasini, 1980 K. L. T.13 the position was reviewed. Following the earlier decisions of this Court and that of the Supreme Court in Sankatha Singh v. State of U. P., A. I. R.1962 S. C. 1208, Narayanan Pillai J. held that there is no power conferred on the court by the provisions of the Code of Criminal Procedure for restoration of revision petitions which have been disposed of. The court observed that to restore and rehear a criminal revision petition which has been disposed of would be to go against the mandatory provision in S.362 of the Code that except to correct a clerical or arithmetical error a judgment or order should not be altered or reviewed after it is signed, unless otherwise provided, and inherent power cannot be used to do what is expressly prohibited by the Code. S.482 of the Code is not meant to give a second inning to a party in a case which has already been decided against him. 6. S.482 of the Code is not meant to give a second inning to a party in a case which has already been decided against him. 6. Thus the view that there is no inherent power in the High Court to review its own judgment once pronounced in appeal or revision except in cases where it is passed without jurisdiction or for default of appearance without adjudication on merits or to correct a clerical error, has been consistently taken by this Court, though in Padmachandran's case the court was of the view that even S.482 of the Code permits a review of the court’s own order when it is found necessary to secure the ends of justice. 7. The Supreme Court in State of Orissa v. Ram Chander, AIR. 1979 SC. 87 observed that once a judgment has been pronounced by a High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code which would enable the High Court to review the same or to exercise revisional jurisdiction. The Court also pointed out that the provisions of S.561-A cannot be invoked for exercise of a power which is specifically prohibited by the Code. If the judgment in the revision is one with notice to the party affected thereby it is one with jurisdiction and no question of want of jurisdiction can arise. There cannot be any violation of the principles of natural justice in such cases. When the parties have ample opportunity of being heard in the matter and the court in exercise of its revisional power examines the records and pronounces the judgment there is no scope for invoking the inherent power of the Court for re-hearing the matter as it would not be a case where anyone of the three clauses enabling the court to exercise the inherent power would be attracted. In Padmachandran v. Radhakrishnan, 1984 KLT. 416 the Court was dealing with a case where the criminal revision petition was dismissed for default without notice to the party and it being a case where there was no judgment in accordance with law with notice to the party concerned, the court considered it necessary for the ends of justice to invoke the inherent power. The decision is distinguishable as binding on the facts of that case. The decision is distinguishable as binding on the facts of that case. The Supreme Court has stated in Sooraj Devi v. Pyare Lal. AIR. 1981 SC. 736 that the inherent power of the Court is not contemplated by the saving provision in S.362. Following the Supreme Court decision we are of the view that unless it is a case in which no opportunity of being heard was given to the party and therefore there had not been a disposal in accordance with law, it is not open to the party to move for a re-hearing of the case and review of the final order which has been passed is an appeal or revision. 8. In the present case the only grievance of the petitioner is that when the case was taken up for hearing the advocate was engaged in another court and could not, therefore, represent the party. The learned judge has disposed of the revision petition after examining the records and applying his mind on the merits of the case. It is not one where the party had no notice or no opportunity of being heard. There is, therefore, no scopes for invoking the provisions of S.482 of the Code to enable the court to re-hear the matter and review the earlier decision. In this view, the Criminal Miscellaneous Petition is to be dismissed. 9. We may state that even on merits there is no scope for any review. The revision has arisen from proceedings for maintenance under S.125 of the Code. The order granting maintenance to the divorced wife by the learned Magistrate was found to be erroneous by the learned Sessions Judge in revision because the learned Magistrate has not considered whether the petitioner was unable to maintain herself. In the light of the evidence that the petitioner was a person having the means to maintain herself the claim for maintenance was held to be unsustainable. This view of the learned Sessions Judge in revision, supported by sufficient materials, has been taken on a proper exercise of the revisional jurisdiction. No interference is called for by this Court on further revision by the aggrieved party. In any view of the matter the revision fails. In the result, the petition is dismissed.