Full Judgment Text
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PETITIONER:
STATE OF ORISSA
Vs.
RESPONDENT:
RAM CHANDER AGARWALA ETC.
DATE OF JUDGMENT05/10/1978
BENCH:
KAILASAM, P.S.
BENCH:
KAILASAM, P.S.
SINGH, JASWANT
CITATION:
1979 AIR 87 1979 SCR (1)1114
1979 SCC (2) 305
CITATOR INFO :
R 1979 SC1895 (1)
RF 1981 SC 736 (2)
ACT:
Criminal Procedure Code 1898-Section 561-A-Inherent
powers-Criminal Procedure Code 1974, Sec. 362, 482-Whether
High Court can review if Judgment delivered in a
reference or revision application.
HEADNOTE:
The respondents were convicted under Section 20 of the
Forward Contracts. (Regulation) Act, 1952. The District
Magistrate found the firms and persons in management of
business guilty of the offences with which they were charged
and inflicted a consolidated fine of Rs. 2000/- with the
direction that they would suffer simple imprisonment for
three months in default of payment of fine. Against their
conviction and sentence the accused preferred an appeal to
the Sessions Judge. The Sessions Judge while dismissing the
appeals found that the law required imposition of a minimum
sentence of fine of Rs. 1000/- for each offence and as the
sentence passed by the Trial Court was not in accordance
with the law, he referred the matter to the High Court for
passing an appropriate, sentence. The accused also
preferred revision petition against the order of the
Sessions Judge. Both the proceedings were heard together The
High Court dismissed the revision petition preferred by the
accused and accepted the reference by the Sessions Judge and
enhanced the sentence so far as the firms are concerned, to
a sum of Rs. 3,900/-. As regards the Managers or the
Managing partners the High Court sentenced them to six
months rigorous imprisonment. The Managers or Managing
Partners filed miscellaneous petitions before the High Court
for review of its order. The High Court accepted the
petition for review and recalled its previous judgment
imposing sentence of six months rigorous imprisonment on
the petitioners and instead imposed a fine of Rs. 3900/-.
The High Court came to the conclusion that no comprehensive
notice was given to the accused to show cause why sentence
of film should not have been enhanced to true sentence of
substantive imprisonment and that the notice was only to
show cause why the fine should not be increased.
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The State of Orissa filed an appeal by certificate in
this Court
The appellants contended.
(1) The High Court had no jurisdiction to review its
own judgment.
(2) The High Court erred in holding that proper notice
was not issued.
(3) The notice issued to the accused was clear and wide
enough to include the imposition of substantive sentence of
imprisonment.
The respondent contended:
1. The High Court has ample jurisdiction under section
561(A) and other provisions of the Criminal Procedure Code
to review its own judgment.
2. Section 369 of the Criminal Procedure Code is not
applicable to judgments on appeal passed by the High Court
much less to the judgment of the High Court passed in
exercise of its criminal jurisdiction, under section 439
1115
Allowing the appeal the Court,
^
HELD: (1) Section 369 as enacted in 1898 provided that
no Court other than High Court, when it has signed its
judgment shall alter or review the same except as provided
in Section 395 and 484 or to correct a clerical error. The
section was redrafted in 1921 which gave power to the High
Court to review its judgment only if it is provided by the
code or by any other law for the time being in force.
Section 362 of the Criminal Procedure Code 1974 also
provides:
"that save as otherwise provided by the Code or by any
other law 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." [1119
A-E]
(2) The Letters Patent of the High Court at Bombay,
Calcutta and Madras provide that the High Court shall have
full power to review a case if such points or points of law
are reserved under clause 25 or on it being certified by the
Advocate General that there is an error and the points
should be further considered. No other provisions relating
to the power of review of the consideration of the High
Court was brought to the notice of the Court.[1120 A-C]
(3) The provisions of Sec. 424 which make the procedure
of the Court of original Jurisdiction applicable to the
Appellate Court cannot confer the power of review. [1127 C]
(i) The inherent power of the High Court conferred by
Sec. 561(A) are restricted to making orders 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. Section 561 (A) does not confer increased powers to
the Court which it did not possess before that section was
enacted. It only provides that those powers which the Court
inherently possessed shall be preserved. [1121 ,H, 1122 A-C]
Emperor v. Khweja Nazir Ahmad, AIR 1945 Privy Council
18; Lala Jairam Das & Ors. v. Emperor, 1945 Law Reports 72
I.A. 120 State of U.P. v. Mohammad Naim, [1964] 2 SCR 363 at
370 relied on.
(2) Sec. 561(A) was added to the Code in 1923 because
doubts were expressed about the existence of such inherent
powers in the High Court after the passing of the criminal
procedure code. The inherent powers cannot relate to any of
the matters specifically dealt with by the Code. Inherent
powers cannot be invoked to exercise powers which would be
inconsistent with any of the specific provisions of the
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Code. The inherent power is only for giving effect to orders
passed under the code, to prevent abuse of process of any
court or otherwise to secure the ends of justice. [1122 D-G]
R. J. S. Chopra v. State of Bombay, [1955] 2 SCR 94
distinguished.
Raj Narain & Ors. v. The State, AIR 1959 All. 315, U.
J. S. Chopra v. State of Bombay, [1955] 2 SCR 94; Nirbhay
Singh v. State of M.P., [1969] 2 SCR 569; Sankatha Singh v.
State of U.P., [1962] 2 SCR (Supp.) 817; Superintendent and
Remembrance of Legal Affairs W.B. v. Mohan Singh & Ors., AIR
1975 SC, 1002 referred to.
1116
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
86-93 of 1974.
From the Judgment and Order dated 25-7-73 of the Orissa
High Court in Criminal Misc. Case Nos. 131-138 of 1972.
D. Mukerjee and B. Parthasarthy for the Appellant.
D. V. Patel and Vinoo Bhagat for the Respondent in (all
the appeals).
The Judgment of the Court was delivered by
KAILASAM, J.-These appeals are by State of Orissa by
certificate granted by the Orissa High Court against the
judgment in Criminal Miscellaneous Cases Nos. 131 to 138 of
1973.
The eight respondents before this Court filed a batch
of eight criminal miscellaneous petitions under Section 561-
A/ and 562 of the Code of Criminal Procedure for a review of
the orders passed by the High Court in Criminal Reference
Nos. 13 and 15 to 21 of 1972 on 7-5-73, enhancing their
sentence of fine of Rs. 2,000/-to one of rigorous
imprisonment for six months.
The facts of the case are briefly as follows: On 1-2-
1967, the Vigilance police filed nine criminal cases against
certain firms and their partners or proprietors under
Section 20(e) of the Forward Contracts (Regulation) Act,
1952 (Act 74 of 1952). The cases were tried by the
Additional District Magistrate (Judicial), Cuttack. The
District Magistrate found the firms and persons, in
management of the business, guilty of the offences with
which they were charged and inflicted a consolidated fine of
Rs. 2,000/-with the direction that, they would suffer simple
imprisonment for three months in default of payment of fine.
Against their conviction and sentence, the accused preferred
an appeal to the Sessions Judge. The Sessions Judge, while
dismissing the appeals, found that the law required
imposition of a minimum sentence of fine of Rs. 1,000/-for
each offence and as the sentence passed by the trial court
was not in accordance with the law, he referred the matter
to the High Court for passing of appropriate sentence. The
accused preferred Revision Petitions against the order of
the Sessions Judge. The Reference made by the Sessions Judge
as well as the revision Petitions by the High Court. The
High Court, while dismissing the Revision Petitions
preferred by the accused, accepted the Reference by the
Sessions Judge and enhanced the sentence so far as the firms
are concerned, to a sum of Rs. 3,900/-at the rate of rupees
one thousand and three hundred for each offence. As regards
the Managers or the managing partners, the High Court
1117
sentenced them to six months rigorous imprisonment, i.e.,
two months for each deal
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The firms paid up their fines but the persons, who were
awarded substantive sentence of imprisonment, filed criminal
miscellaneous petitions before the High Court for a review
of its order. The High Court accepted the petitions for
review and recalled its previous judgment imposing
substantive sentence of six months rigorous imprisonment on
the petitioners but imposed a fine of Rs. 3,900/- at the
rate of Rs. 1,300/- for each of the offence on each of the
petitioners who are the respondents in this Court.
Against the decision of the High Court, the State of
Orissa applied for a certificate for preferring an appeal to
this Court which was granted.
Before the High Court it was urged that the petitioners
were not given notice of enhancement in the Reference cases
in respect of fines imposed. It was submitted that the
notice was based on the recommendation of the learned
Sessions Judge to pass appropriate sentence, but there was
no indication in the notice, that the sentence would be
enhanced to a substantive term of imprisonment. The order of
Reference by the Sessions Judge provided that, the sentence
imposed by the trial court was illegal and therefore while
maintaining the convictions, he set aside the consolidated
sentence of fine and referred the matter to the High Court
for passing appropriate sentences. The learned Judge who
dealt with the References made by the Sessions Judge passed
an order in the following terms :-
"Admit. Issue notice fixing 20.3.72 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."
In pursuance of the order, the High Court sent a
notice, directing the respondents to appear and show cause
as to why the sentences, inflicted on them, should not be
enhanced. The submission, that was made on behalf of the
respondents, was that, neither the parties nor the lawyers
ever took it, that the notices were comprehensive notices,
which would include enhancement of sentence by way of
converting the fine into imprisonment. The High Court
accepted the plea on behalf of the respondent that the
Criminal References read with the revisions would establish
that the petitioners merely were given notice to show cause
why the sentence of fine should not be regularised by way of
enhancement of fine and that the notices ruled out
enhancement by way of imprisonment since in this setting the
notices were specifically in respect of fine and therefore
imposition of sentence of imprisonment.
1118
was without jurisdiction. We do not find any basis for the
conclusion arrived at by the High Court. The notice, under
Section 439 (2) of the Criminal Procedure Code requires that
no order, under Section 439, shall be made to the prejudice
of the accused unless he has had an opportunity of being
heard either personally or by pleader in his own defence,
and sub-section (6) states that "notwithstanding anything
contained in this section, any convicted person, to whom an
opportunity has been given under sub-section (2) of showing
cause why his sentence should not be enhanced, shall, in
showing cause, be entitled also to show cause against his
conviction. The order of the learned Judge by whom the
reference was received and the notice issued by the High
Court clearly show that, the respondents were asked to show
cause why their sentence should not be enhanced. The view,
taken by the High Court, that notice was only to show cause
why the sentence should not be regularised by enhancement of
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the fine and not to a term of imprisonment is not borne out
by the record.
Mr. Mukherjee, learned counsel appearing for the State
of Orissa submitted that, apart from the merits, the High
Court had no jurisdiction to review its own judgment, and as
such, the order of the High Court passed in review will have
to be set aside as being without jurisdiction. On behalf of
the respondent, Mr. D. J. Patel, submitted that, so far as
the High Court is concerned, it has ample jurisdiction under
Section 561 (A) and other provisions of the Code to review
its own judgment. Mr. Patel further submitted that Section
369 of the Criminal Procedure Code is not applicable to
judgments on appeal passed by the High Court, much less to
judgments of the High Court passed in exercise of its
criminal jurisdiction under Section 439. To support this
contention, the learned counsel submitted that Chapter XXVI
refers only to judgments of the trial court and cannot be
made applicable to appellate judgments. We referred to
Section 424 which provides that, the rules, contained in
Chapter XXVI as to the judgement of criminal court of
original jurisdiction, shall apply, so far as may be
applicable to the judgment to any appellate court other than
the High Court. The plea is that if Section 369 could be
understood as being applicable to appellate judgments of the
High Court also, there is no need for providing separately
for the applicability of Chapter XXVI to the judgments of
appellate courts other than the High Courts. Reliance was
placed on Section 430 for the submission that the finality
provided for judgments, orders passed by the appellate court
would also indicate that, Section 369 is not intended to
apply to judgments of the appellate courts and to the High
Court in appeals and in revisions. In order to appreciate
the contention of the parties the relevant sections may be
set out.
1119
Section 369 as enacted in 1898, provided that "No Court
other than a High Court, when it has signed its judgment,
shall alter or review the same, except as provided in
Section 395 and 484 or to correct a clerical error. Despite
the express exclusion of the High Courts from the operation
of this provision, it was held that the High Court had no
implied power to alter or review their own judgments whether
under Section 369 or under Section 439 or otherwise. It was
accordingly proposed in 1921 that the words "other than a
High Court" should be omitted to make it clear that Section
369 conferred no such power on the High Courts, as it was
noticed that one or two other sections of the Code besides
395 and 484 and clause 26 of the Letters Patent of the High
Courts empowered the High Courts to revise their judgments.
Hence the Section was redrafted.
Section 369 of the Code of Criminal Procedure 1898
reads as follows :-
"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 constitute such High Court, no court, when
it has signed its judgment shall alter or review the
same, except to correct a clerical error".
Under the Code of Criminal Procedure (Act 2 of 1974)
the new Section 362 provides-
"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".
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The words "or in the case of a High Court, by the
Letters Patent or other instrument constituting such High
Court" which were found in the corresponding Section 369 of
the old Code have been omitted in the present section. Hence
an alteration or review by a High Court would be permissible
as in the case of other Courts, where provision therefore is
made in this Code or by any other law for the time being in
force.
A reading of Section 369 discloses that the section
prohibits all courts when it has signed its judgment to
alter review the same except to correct a clerical error.
While, regarding other courts, the prohibitions subject to
any provision in the Code of............or any provision of
any other law in force, in the case of the High Court it is
provided that the prohibition will be subject to the Letters
Patent or other instrument constituting such High Court.
Thus so far as the High Court is concerned, the prohibition
against alteration and the
1120
review of the judgment will be subject to the Letters Patent
or other instrument constituting such High Court. The
Letters Patent of the High Courts of Bombay, Calcutta and
Madras provide that the High Courts will have original
criminal jurisdiction as well as the appellate criminal
jurisdiction as provided by clauses 22 to 24. Clause 26
provides that such point or points of law reserved under
clause 25 or on its being certified by the Advocate General
that there is an error and that the points should be further
considered, the High Court shall have full power to review
the case. No other provision is found in the Letters Patent
enabling the High Court to review its own judgment. No other
instrument, relating to the power to review, in the
constitution of the High Court, was brought to our notice.
Giving the plain meaning to Section 369, it is clear that no
court, subject to exceptions made in the section, shall
alter or review its judgment.
Two other sections were relied on by the defence as
providing an exception to the rule laid down in Section 369.
They are Sections 424 and 430 of Code of Criminal Procedure.
Section 424 runs as follows:
"424. 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".
The first part of Section 424 provides that 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. Chapter XXVI relates to the judgment.
Section 366 is the first section in the Chapter. It
prescribes the mode of delivering judgment, i.e. it shall be
delivered in the open court and in the language of the
court. Sub-Section (2) provides that the accused shall be
required to attend, to hear judgment delivered. Section 367
prescribes the language and contents of the judgment and
provides that the judgment may be in the alternative. When
read with Section 424, it is seen that Sections 366, 367 and
368, which relate to the judgment of a criminal court of
original jurisdiction, are made applicable, as far as may be
to the judgment of the appellate court other than the High
Court. The effect of Section 424 Crl. P.C. would be that the
judgment of the appellate court should, as far as
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applicable, be in accordance with the requirements of
Sections 366, 367 and 368 of the Code. This rule is not made
applicable
1121
to a High Court hearing an appeal. The proviso to Section
424 is significant, in that, it states that unless the
appellate court otherwise directs, the accused, shall not be
brought up or required to attend to hear the judgment
delivered. This proviso makes an exception to the
requirement, that is found in Section 366(2), which requires
that the accused should attend when the judgment is
delivered. Section 367 prescribes the language of the
judgment and requires the points for determination, the
decision thereon, the reasons for the decision that it shall
be dated and signed in open court. While Section 369
prohibits altering or reviewing the judgment after a court
has signed its judgment, section 424 requires that the
judgment of the appellate court shall, as far as applicable,
be in accordance with Sections 366, 367 and 368 of the
Criminal Procedure Code, which deals with the trial court.
Sections 369 and 424 do not restrict the prohibition under
Section 369 to the trial court alone. The purpose of Section
424 is to prescribe mode of delivering of judgment, the
language and the contents of the judgment while Section 369
is general in its application and prohibits all courts from
altering or reviewing its judgment when once it has signed
it.
The second section, that is relied on, is Section 430.
Section 430 provides, "When the judgment passed by an
appellate court upon appeal shall be final except in the
cases provided for in Section 417 and Chapter XXXII". The
section deals with the finality of orders on appeal. An
exception is made in the case of a judgment under Section
417 that is, in an appeal by a public prosecutor against an
order of acquittal, whether made by the trial court or the
appellate court. So also, the provisions of Chapter XXXII is
excepted in that the judgment of an appellate court will not
be final when provision is made for reference and revision.
Neither Section 424 nor Section 430 deal with the
prohibition imposed under Section 369 prohibiting the court
from altering or reviewing its judgment when once it has
signed it. It was next submitted that in any event Section
561 A is wide enough to include a power of review by the
High Court. Section 561 A of Criminal Procedure Code runs as
follows :-
"561A. Nothing in this Code shall be deemed to
limit or effect 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".
The inherent power of the High Court is restricted to
making 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
1122
secure the ends of justice. The scope of the section has
been explained. In the two decisions of the Privy Council,
which have been uniformly followed by this Court. In Emperor
vs. Khwaja Nazir Ahmad the Privy Council, repelling the view
that Section 561A of Criminal Procedure Code gave increased
powers to the court which it did not possess before that
section was enacted, observed, that "it was not so" and
proceeded to state "The section gives no new powers, it only
provides that those powers which the Court already
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inherently possess shall be preserved, and is inserted as.
Their Lordships think lest it should be considered, that the
only powers possessed by the Court are those expressly
conferred by the Criminal Procedure Code and that no
inherent power had survived the passing of that Act.
Reiterating the same view the Privy Council in Lala Jairam
Das and Others v. Emperor observed: that Section 561A of the
Code confers no new powers. It merely safeguards all
existing inherent powers possessed by a High Court necessary
(among other purposes) to secure the ends of justice. This
Court in State of Uttar Pradesh v. Mohammad Naim cited with
approval the two decisions of the Privy Council referred to
above.
Section 561A was added to the Code in 1923. It purports
to save the inherent powers of the High Court to make such
orders as may be necessary to give effect to any order
passed under the Code, to prevent abuse of the process of
the Court and otherwise to secure the ends of justice. The
introduction of the section was because doubts were
expressed about the existence of such inherent powers in the
High Courts after the passing of the Criminal Procedure
Code. By the introduction of the section it was made clear
that, the inherent powers of the High Court, for the
purposes mentioned in the section, shall not be deemed to
be limited or affected by the provisions of the Criminal
Procedure Code. Thus, inherent power cannot relate to any of
the matters specifically dealt with by the Code. It would
follow that inherent powers cannot be invoked to exercise
powers which would be inconsistent with any of the specific
provisions of the Code. The saving of inherent power is only
for giving effect to orders passed under the Code, to
prevent abuse of the process of any court or otherwise to
secure the ends of justice.
Section 369 of the Criminal Procedure Code is
understood as applying to judgments on appeal by the High
Court, Section 561A cannot be invoked for enabling the Court
to review its own order which
1123
is specifically prohibited by Section 369 by providing that,
no court when it has signed its judgment, shall alter or
review the same except to correct a clerical error.
Section 424 read along with Sections 366 and 367 would
show that the requirements of the two sections in a judgment
by a criminal court of original jurisdiction, shall also
apply, as far as applicable to the judgment of the appellate
court other than the High Court. The proviso is significant.
It states that the appellate court, when delivering the
judgment the accused shall not be brought up or required to
attend unless otherwise directed to hear the judgment
delivered. The provisions of Section 366(2) require the
court to secure the personal attendance of the accused at
the time of delivery of the judgment, except where his
personal attendance during the trial has been dispensed
with. The effect of Section 424 is generally that, the
appellate court should comply with the requirements
prescribed under Sections 366 and 367. Section 430 deals
with finality of orders on appeal, that is, the judgment
passed by an appellate court shall be final unless otherwise
provided for, but the finality of the appeal is subject to
the provisions of section 417 of the Criminal Procedure Code
which enable the State to prefer an appeal against an order
of the trial court or by an appellate court. Similarly a
judgment by an appellate court is final subject to the
Chapter which provides for reference and revision. Section
424 deals with the general requirements of judgments and
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Section 430 with the finality of judgment on appeal unless
otherwise provided for. These two sections, it may be noted,
do not deal with restriction against altering or reviewing
the judgment except for correcting a clerical error. A
reading of Section 369 of Criminal Procedure Code would
reveal that this Section is intended to apply to all courts,
the provision being "no court when it has signed its
judgment shall alter or review the same". ’no court’ would
include ’all courts’. The operation of the section is saved
if it is provided by the Code or by any other law for the
time being in force. So far as the High Court is concerned,
the Section provides that the prohibition will not apply if
the Letters Patent or other instrument constituting such
High Courts confers such a power. We see no justification
for restricting the application of the Section to judgments
delivered by the High Court in criminal trials alone. The
reference to the High Court in the section would indicate
that the High Court is also covered by the provisions of the
section subject to the exception provided for. The criminal
jurisdiction as conferred by the Letters Patent on the High
Court covers not only the original criminal jurisdiction but
also appellate powers. Though Section 369 appears in Chapter
XXVI, we
1124
are not inclined to accept the contention put forward on
behalf of the defence that it is applicable only to trial
courts and in any event not to appellate judgments of the
High Court. Section 362 of the new Act has done away with
the special provisions regarding the High Court and has made
the section applicable to all courts. On a careful reading
of Sections 369 and 424 and 430, we are satisfied that
Section 369 is general in its application. The word ’no
court’ would include all courts and apply in respect of all
judgments. Section 424 in confined, in its application, only
to the mode of delivery of judgment, the language of the
judgment, the contents of judgment etc. and section 430 of
Criminal Procedure Code to the finality of judgments on
appeal, except as provided for. Whether the judgment is by
the trial court or the appellate court, Section 369 is
universal in its application and when once a judgment is
signed, it shall not be altered or reviewed except for
correcting a clerical error.
Mr. Patel, the learned counsel for the respondents,
submitted that this Court has laid down that Section 369 is
applicable only to judgments of the trial court and
therefore Section 369 cannot be construed as being
applicable to appellate court, especially to High Court. He
relied on the decision in U.J.S. Chopra vs. State of Bombay.
The question that arose for decision in the case was whether
a revision preferred by the State of Bombay to the High
Court praying for enhancement of sentence, passed on the
accused, is maintainable after the appeal preferred by the
accused to the High Court of Bombay, was summarily
dismissed. This court held that the summary dismissal of the
appeal, preferred by the appellant, did not preclude him,
from taking advantage of the provision of Section 439(6) of
the Code of Criminal Procedure, and showing cause against
his conviction when he was subsequently called upon to show
cause why the sentence imposed on him should not be
enhanced. Two separate judgments were delivered by the
three-Judge Bench. Justice Bhagwati along with Imam, J.
spoke for the court while S.R. Das, J. delivered a separate
judgment. Justice Das, while repelling the contention that
the power under Section 439(6) is conditioned or controlled
by the provisions relating to finality of judgment embodied
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under Section 369 and 430 at page 108, 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
the finality of the judgment so far as the trial court is
concerned. That this Section does not, by itself, apply to
the judgment of an appellate court is quite obvious, because
if it did, there
1125
would have been no necessity for enacting Section 424
specifically making the rules contained in Chapter XXVI
which includes Section 369 applicable to the judgment of any
appellate Court other than High Court, nor for again
prescribing by Section 430 a rule of finality for judgments
and orders passed by an appellate Court". The learned Judge
concluded that the finality of section 369 attaches to the
judgments pronounced by all trial courts including the High
Court in the exercise of its original criminal jurisdiction,
it certainly has no bearing on the question of finality of
appellate judgments which is specifically provided by
section 430 of the Code. Bhagwati J. who spoke for the Court
has not held that the provisions of section 369 are
applicable only to judgments of the trial courts. On the
other hand, a reading of the judgment of Bhagwati J. would
indicate that the learned Judge was inclined to hold that
the finality provided for in section 369 of the Criminal
Procedure Code is also applicable to the judgments rendered
by the High Court in the exercise of its appellate or
criminal jurisdiction. At p. 144 of the Reports the learned
Judge observed that once a judgment of the lower court is
replaced by the judgment of the High Court, the High Court
has no further powers to review or revise its own judgment
and enhance the sentence which is thus passed by it upon the
accused. The principle as to the finality of judgments
applied by the Court by virtue of the provisions of section
369 and section 430 of the Criminal Procedure Code should
not have been confined merely to the question of con-
firming the conviction but also should have been extended to
the con firming of the sentence insofar as the High Court
did not see any reason to reduce the sentence already passed
by the lower Court upon the accused. Again dealing with the
principle of finality the learned Judge observed that the
principle of finality of judgments should therefore be
extended not only to the question of the confirming of the
conviction but also to the question as to the adequacy of
the sentence, whether the sentence which is passed upon the
accused by the lower Court should be reduced, confirmed or
enhanced. Once therefore the judgment of the High Court
replaces that of the lower Court there is no question which
can ever arise of the exercise by the High Court of its
revisional powers under section 469 ( 1 ) of the Criminal
Procedure Code. Again at p. 162 the learned Judge reiterated
the principle and observed "As we have observed that
principle comes into operation when once a judgment of the
High Court has replaced that of the lower Court and in those
cases the High Court would not be competent to review or
revise its own judgment." In referring to the import of
section 369 on the powers of the High Court under section
439(6), Bhagwati J. held that section 369 in terms provides,
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"save as otherwise provided in this Code" and section 439(6)
would be an otherwise provision which is saved by this non-
obstante clause appearing in section 369. It is significant
to note that both these amendments the one is section 369
and the other is section 439, were enacted by section 119 of
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Act XVIII of 1923 and the very purpose of these simultaneous
amendment would appear to be to effectuate the right given
to the accused to show cause against his conviction as
enacted in section 439(6) of the Criminal Procedure Code".
As the majority judgment does not share the view expressed
by Das J. quoted above reliance cannot be placed on the view
of Das J. The view expressed by Privy Council in Jai Ram
Das’s(1) case that alteration by the High Court of its
judgment is prohibited by section 369 of the Code was not
brought to the notice of Das J. Later decision Of this
Court particularly the decision in Superintendent and
Remembrance of Legal Affairs, W.B. v. Mohan Singh and Others
(2) held that when once the judgment has been pronounced by
the High Court either in exercise of its appellate or its
revisional jurisdiction, no review or revision can be
entertained. In the Full Bench decision of the Allahabad
High Court in Raj Narain and other v. The State (2),
Moothem J. observed: "It has commonly been assumed, even it
would appear by the Privy Council in Jairam Das’s case, that
this section applies also to the judgment of the appellate
Court but it is clear that this is not so: U.J.S. Chopra v.
State of Bombay (1955) 2 S.C.R. 94". In a latter decision in
Nirbhay Singh v. State of Madhya Pradesh, (4) this Court,
dealing with section 369, after referring to Chopra’s case
observed that section 369 occurs in Chapter XXVI and prima
facie applies to judgments of the court of first instance.
The Court did not proceed on the basis that it was settled
law that section 369 is applicable only to judgments of
trial courts.
Before concluding we will very briefly refer to cases
of this Court cited by counsel on both sides. 1958
S.C.R.1226 relates to the power of the High Court to cancel
bail. The High Court took the view that under section 561A
of the Code, it had inherent power to cancel the bail, and
finding that on the material produced before the Court it
would not be safe to permit the appellant to be at large
cancelled the bail distinguishing the decision in 1945 Law
Reports and 72 Indian Appeals (supra) and stated that the
Privy Council was not called upon to consider the question
about the inherent power of the High Court
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to cancel bail under section 561A. In Sankata Singh v. State
of U.P.,(1) this Court held that section 360 read with
section 424 of the Code of Criminal Procedure specifically
prohibits the altering or reviewing of its order by a court.
The accused applied before a succeeding Sessions Judge for
re-hearing of all appeal. The learned Judge was of the view
that the appellate court had no power to review or restore
an appeal which has been disposed of. The Supreme Court
agreed with the view that the appellate court had no power
to review or restore an appeal. This court, expressing its
opinion that the Sessions Court had no power to review or
restore an appeal observed that a judgment. which does not
comply with the requirements of section 369 of the Code, may
be liable to be set aside by a superior court but will not
give the appellate court any power to. set it aside himself
and rehear the appeal observing that "section 369 read with
section 424 of the Code makes it clear that the appellate
court is not to alter or review the judgment once signed,
except for the purpose of correcting a clerical error.
Reliance was placed on a decision of this Court in
Superintendent and Remembrance of Legal Affairs W.B. v.
Mohan Singh and others(2) by Mr. Patel, learned counsel for
the respondent wherein it was held that rejection of a prior
application for quashing is no bar for the High Court
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entertaining a subsequent application as quashing does not
amount to review or revision. This decision instead of
supporting the respondent clearly lays down, following
Chopra’s case (supra) 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
are no provisions in the Criminal Procedure Code which would
enable the High Court to review the same or to exercise
revisional jurisdiction. This Court entertained the
application for quashing the proceedings on the ground that
a subsequent application to quash would not amount to review
or revise an order made by the Court. The decision clearly
lays down that a judgment of the High Court on appeal or
revision cannot be reviewed or revised except in accordance
with the provisions of the Criminal Procedure Code. The
provisions of section 561A of the Code cannot be revoked for
exercise of a power which is specifically prohibited by the
Code.
In the result we accept the contention put forward by
Mr. Mukerjee for the State and hold that High Court has no
power to revise its own order. The appeal is allowed.
P.H.P. Appeal allowed.
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