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2010 DIGILAW 373 (JK)

Gujjar Singh v. State

2010-07-06

Hasnain Massodi, Virender Singh

body2010
Per Virender Singh, J. 1. Through the instant application, the applicant-Gujjar Singh S/o Chattar Singh R/o Dayala Chak, Tehsil Hira Nagar, District Jammu seeks recalling of the order darted 2nd of September, 2002 vide which his Criminal Appeal bearing No. 20 of 1990, admitted for final hearing was dismissed by the Division Bench of this court on 2nd of September, 2002 primarily on the ground that the sentence awarded to the applicant-appellant was remitted and he was released from jail, thus, lost interest in prosecuting the appeal. While disposing of the appeal, the Bench accepted the Criminal Reference No. 25 of 1990 sent by the learned Sessions Judge, Kathua under Section 374 Cr.PC. 2. Heard Mr. Ashok Sharma, Advocate appearing vice Mr. Vidya Sagar, Advocate and perused the order sought to be recalled. 3. Mr. Sharma submits that may be by efflux of time the applicant-appellant was released from jail as his sentence was remitted, that by itself, could not be a ground to dismiss his main appeal against conviction without entering into the merits of case. He then submits that showing no interest in an admitted Criminal Appeal cannot be said to be a ground of dismissal. In such a situation, the same could be disposed of finally on merits even by engaging a counsel to defend the cause of the convict at the expenses of the State. It is virtually dismissal of appeal in default. The learned counsel then submits that even otherwise all the proceedings of the trial court were submitted to this court by the learned Sessions Judge under Section 374 Cr.PC for confirmation of the sentence, therefore, also the main appeal deserved to be disposed of on merits only and not in any other way. Hence this application. 4. We find substance in the submissions advanced by Mr. Sharma. The operative part of the order is reproduced as thus: "On the last two dates of hearing none has appeared on behalf-of the appellant. It appears to us that since the sentence awarded to the appellant has been remitted and he has been released from jail, he seems to have lost interest in the case and therefore, we have no option except to dismiss the appeal and accept the criminal reference. In view of the above, the appeal filed by the appellant is dismissed and the reference made by the trial court is accepted." 5. In view of the above, the appeal filed by the appellant is dismissed and the reference made by the trial court is accepted." 5. It is apparent on record that the appeal is not heard on merits. It was a statutory appeal, which was admitted as a matter of right. It goes without saying that this appeal called for re-appreciation of the entire evidence once again for the purposes of upholding the conviction or for any order favouring the accused. Admittedly, this exercise is not done in the present case. 6. We are appreciating this aspect yet from another angle. Had there been no appeal from the applicant-appellant against the conviction he had suffered by the trial court, still the entire case was to be re-scanned afresh once the statutory reference was made by the learned Sessions Judge under Section 374 CrPC and admitted also. It is ultimately-accepted vide order dated 2nd of September, 2002 sought to be recalled. This means that the conviction and the sentence recorded by the learned trial court is upheld by the Appellate Court. He could earn acquittal as well, had the appeal been decided on merits after re-appraisal of the entire evidence on record. 7. We are appreciating the present case on another legal platform also, as to whether the order dated 2nd of September, 2002 passed by a coordinate Bench having the same jurisdiction can be reviewed or altered as the main case finally stands disposed of. The statutory restraint is there in Section 369 of Code of Criminal Procedure Samvat 1989 (hereinafter to be referred to as Code of 1989) corresponding to Section 362 of the Central Code. According to this section, the judgment once signed shall not be altered or reviewed except to correct the clerical error. In normal circumstances, the answer has to be no. The next aspect then debatable would be whether the present appeal, which is dismissed vide impugned order simply on the ground that the appellant has lost interest in defending his case, can be altered/reviewed for deciding the main appeal afresh on merits. Will the order sought to be recalled be said to be a judgment disposing of a case finally, let us put stress on it. What is judgment is available from the reading of Section 367 of the Code of 1989 (corresponding to Section 354 of the Central Code). Will the order sought to be recalled be said to be a judgment disposing of a case finally, let us put stress on it. What is judgment is available from the reading of Section 367 of the Code of 1989 (corresponding to Section 354 of the Central Code). The relevant extract to this Section is culled out below: "367. Language of judgment, contents of judgment. (1) Every such judgment shall, except as otherwise expressly provided by this Code, be written by the presiding officer of the Court or from the dictation of such presing officer in the language of the Court, or in English; and shall contain the point or points for determination, the decision thereon and the reasons for the decision; and shall be dated and signed by the presiding officer in open court at the time of pronouncing it and where it is not written by the presiding officer with his own hand, every page of such judgment shall he signed by him. (2) (3) (4) (5) (6) For the purposes of this section, an order under section 118 or section 123, sub-section (3), shall be deemed to be a judgment." 8. The sum and substance of Section 367 of the Code of 1989 is that the judgment is the outcome of points for determination, which is based on reasons for arriving at a decision. It is only thereafter it would qualify to be a judgment disposing of a case, which is unalterable or non-reviewable in terms of Section 369 of the Code of 1989 (corresponding to Section 362 of the Central Code), The appeal decided vide order dated 2nd of September, 2002 does not contain the points for determination, and the reasons for the same. 9. We are conscious of the settled legal position that inherent powers vested with the High Court will not modify the statutory section so as to give a general and undefined power of review of judgment. 10. Another factual aspect, which cannot be lost sight, is that both the Hon’ble Judges, who constituted the Division Bench, have since superannuated, otherwise the present case would have been put up before the same Bench only. 11. 10. Another factual aspect, which cannot be lost sight, is that both the Hon’ble Judges, who constituted the Division Bench, have since superannuated, otherwise the present case would have been put up before the same Bench only. 11. Keeping in view the totality of facts and circumstances and examining the present case on legal aspect also, we are of the view that the order dated 2nd of September, 2002 was virtually an order of dismissal of appeal in default and not on merits, as such can be recalled. It would not technically be termed as reviewing/altering the order as there is no such final judgment based on appreciation of evidence, which is the legal requirement for deciding statutory appeal already admitted. Substantial justice within the framework of law and established procedure is the right of the accused right from the trial till the decision of the appeal, which is continuation of trial only. It ends in conviction or acquittal depend upon the facts of an individual case but a valuable right of the accused to putforth his case cannot be legally snatched away. Decision of a criminal appeal without appreciating the evidence undoubtedly would cause miscarriage of justice and the court cannot be a silent spectator if miscarriage of justice becomes a casualty. 12. Resultantly, the application on hand is allowed as prayed for. The order dated 2nd of September, 2002 is hereby recalled. Let the main appeal filed by the applicant-appellant bearing No. 20 of 1990 be heard and disposed of on merits along with Criminal Reference No. 25 of 1990. We have been informed by our Bench Secretaries, who have obtained the information from the Registry that paper book of the present case is not prepared till date. Since the instant appeal relates to year 1990, we direct the Registry to prepare the paper book in four sets within two week’s time by furnishing one set each to learned counsel for both the sides. Main appeal shall be set down for final hearing on 21st of July, 2010 (Wednesday), which is otherwise a final hearing day. Higher up in the list as case No.1.