PETITIONER:
SANKATHA SINGH
Vs.
RESPONDENT:
STATE OF U.P.
DATE OF JUDGMENT:
25/01/1962
BENCH:
DAYAL, RAGHUBAR
BENCH:
DAYAL, RAGHUBAR
DAS, S.K.
SUBBARAO, K.
CITATION:
1962 AIR 1208 1962 SCR Supl. (2) 817
CITATOR INFO :
RF 1971 SC1606 (22)
RF 1979 SC 87 (20)
R 1981 SC 736 (5)
ACT:
Criminal Procedure-Appellate Court's power to
re-hear appeal after having dismissed it earlier-
Code of Criminal Procedure, 1898 (Act V of 1898),
ss.367, 369, 424.
HEADNOTE:
The question for decision was whether a
criminal appellate court could order the re-
hearing of an appeal which it had earlier
dismissed, when neither the appellants nor their
counsel appeared, holding that it had perused the
record of the case and saw no reason for
interference with the trial court's order.
^
Held, that the appellate court's omission to
write a detailed judgment in a criminal appeal in
which neither the appellant nor his counsel
appeared might not be in compliance with the
provisions of s.367 of the Code of Criminal
Procedure and might be liable to be set aside by a
superior court, but will not give that court
itself power to set it aside and re-hear the
appeal.
At the re-hearing of the appeal the successor
of the appellate court was competent to consider,
on an objection being raised by the other party,
whether the appeal was validly up for hearing
before him.
Section 369 read with s. 424 of the Code of
Criminal Procedure specifically prohibits the
altering or reviewing of its order by a court.
Inherent powers of the court cannot be
exercised to do what the Code specifically
prohibits the court from doing.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No. 145 of 1959.
Appeal by special leave from the judgment and
order dated March 19,1959, of the Allahabad High
Court in Criminal Revision No. 1299 of 1957.
S. P. Sinha and P. C. Agarwala, for the
appellant.
G. C. Mathur and C. P. Lal, for the
respondent.
1962. January 25. The Judgment of the Court
was delivered by
818
RAGHUBAR DAYAL, J.-Sankatha Singh and others
appeal against the order of the Allahabad High
Court dismissing their application for revision of
the order of the Sessions Judge, Gyanp ur, holding
the order of his predecessor for the rehearing of
an appeal which had been dismissed earlier to be
ultra vires and without jurisdiction and directing
the Magistrate to take immediate steps to execute
the order passed by it, according to law.
The appellants were convicted by the
Magistrate, I Class, Gyanpur, of offences under
ss. 452 and 323 read with s.34, I.P.C. Kharpattu,
one of the appellants, was also convicted of an
offence under s. 324, I.P.C. They appealed against
their conviction. The appeal was fixed for hearing
on November 30, 1956. On that date, neither the
appellants nor their counsel appeared in Court and
the learned Sessions Judge dismissed the appeal.
The relevant portion of his order is:
“The appellants have been absent, and
their learned counsel has also not appeared
to argue the appeal on behalf of the
appellants. I have perused the judgment of
the learned Magistrate and seen the record. I
find no ground for any interference. The
appeal is accordingly dismissed.”
On December 17, 1956, an application was
presented by the appellants praying that the case
be restored to its original number so that justice
be done to them. In explaining their absence from
Court on the date of hearing, it was said that
they reached the Court somewhat late due to the
Ekka, by which they were travelling, over-turning
accidentally on the way and, as a result, their
getting injuries. This application was allowed, on
July 2, 1957, by the learned Sessions Judge, Sri
Tej Pal Singh, who had dismissed the appeal. His
reasons for allowing the application appear, from
his order,
819
to be that the application, supported by an
affidavit, showed that there was sufficient cause
for the non-appearance of the appellants-accused
at the time of the hearing of the appeal, that s.
423 of the Code of Criminal Procedure (hereinafter
called the Code) enjoined the appellate Court to
dispose of the appeal on merits after hearing the
appellant or his pleader and the Public
Prosecutor, that no notice was ever issued to the
appellants as required by s. 422 of the Code, that
s. 367 of the Code laid down what a judgment
should contain and that his judgment of November
30, 1956, amounted to no judgment as it did not
contain some of those salient points, that the
judgment was without jurisdiction as the case was
not really considered and no independent judgment
was arrived at and that it was necessary that the
appeal be re-heard in the ends of justice.
Sri Tripathi, who succeeded Sri Tej Pal Singh
as Sessions Judge, and before whom the appeal was
put up for re-hearing, was of the opinion that the
appellate Court had no power to review or restore
an appeal which had been disposed of and that
therefore the order of his predecessor dated July
2, 1957, was ultra vires and passed without
jurisdiction.
Against this order, the appellants went in
revision to the High Court. The learned Judge of
the High Court agreed with the views of Sri
Tripathi and accordingly, dismissed the revision
application.
The sole point for determination in this
appeal is whether Sri Tej Pal Singh could set
aside his first order dated November 30, 1956,
dismissing the appeal, when neither the appellants
nor their counsel appeared and could order the re-
hearing of the appeal. We are of opinion that he
could not do so and that therefore the view taken
by the High Court is correct.
820
A criminal appeal cannot be dismissed for the
default of the appellants or their counsel. The
Court has either to adjourn the hearing of the
appeal to enable them to appear, or should
consider the appeal on merits and pass the final
order. Sri Tej Pal Singh was aware of this as his
order itself indicates. He did not dismiss the
appeal for default. He himself perused the
judgment of the Magistrate and the record and did
consider the merits, as he says in his order: ‘I
find no ground for any interference’. The mere
fact that he had not expressed his reasons for
coming to that opinion does not mean that he had
not considered the material on record before
coming to the conclusion that there was no case
for interference. His omission to write a detailed
judgment in the circumstances may be not in
compliance with the provisions of s. 367 of the
Code and may be liable to be set aside by a
superior Court, but will not give him any power to
set it aside himself, and re-hear the appeal.
Section 369, read with s. 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.
Sri Tej Pal Singh was in error when he
thought that s. 423 of the Code enjoined the
appellate Court to dispose of the appeal after
hearing the appellant or his pleader and the
Public Prosecutor. He omitted to notice the words
‘if he appears’ after the expression ‘and hearing
the appellant or his pleaders. If none of these
appears at the hearing, the appellate Court can
proceed with the disposal of the appeal on merits.
Of course, a notice to the appellant or his
counsel of the date of hearing is an essential
precedent for the hearing of the appeal, in view
of s. 422 of the Code, Sri Tej Pal Singh states,
in his order dated July 2, 1957:
821
“It will also appear that the conditions
of s.422, Cr. P. C. were also not fulfilled,
as no notice was ever issued to the
appellant.”
He again missed noticing that a notice of the
hearing of the appeal has to be given either to
the appellant or to his pleader and need not be
given to both. He does not say in his order that
no notice of the date of hearing had been given to
the appellants’ counsel. The practice, usually, is
to give notice of the date of hearing of the
appeal to the counsel who informs the appellant,
and not to the appellant personally. The
application for restoration indicates that the
appellant knew of the date of hearing.
It has been urged for the appellants that Sri
Tej Pal Sigh could order the re-hearing of the
appeal in the exercise of the inherent powers
which every Court possesses in order to further
the ends of justice and that Sri Tripathi was not
justified in any case to sit in judgment over the
order of Sri Tej Pal Singh, an order passed within
jurisdiction, even though it be erroneous.
Assuming that Sri Tej Pal Singh, as Sessions
Judge, could exercise inherent powers, we are of
opinion that he could not pass the order of the
re-hearing of the appeal in the exercise of such
powers when s. 369, read with s. 424, of the Code,
specifically prohibits the altering or reviewing
of its order by a Court. Inherent powers cannot be
exercised to do what the Code specifically
prohibits the Court from doing. Sri Tripathi was
competent to consider when the other party raised
the objection whether the appeal was validly up
for re-hearing before him. He considered the
question and decided it rightly.
It is also urged for the appellants that Sri
Tej Pal Singh, had the jurisdiction to pas orders
on the application presented by the appellants on
December 17,1956, praying for the re-hearing of
the appeal and that therefore his order could not
822
be said to have been absolutely without
jurisdiction. We do not agree. He certainly had
jurisdiction to dispose of the application
presented to him, but when s. 369, of the Code
definitely prohibited the Court’s reviewing or
altering its judgment, he had no jurisdiction to
consider the point raised and to set aside the
order dismissing the appeal and order its re-
hearing.
We therefore see no force in this appeal and
accordingly dismiss it.
Appeal dismissed.