Dular Dat Rai vs Nijabat Hosein

McDonell and Beverley, JJ. 1. On the 5th December last one Dular Dat Rai was convicted summarily of criminal trespass under Section 447, Indian Penal Code, by the Deputy Magistrate in charge of Deoghur in the Sonthal Pergunnahs, and was sentenced to one month''s rigorous imprisonment. Upon his application to this Court, the Division Bench, which at that time had charge of the criminal business of the Court, made the following order:

Let a rule issue calling on the other side to show cause why the order complained of should not be set aside as prayed. Send for the record, and let the Magistrate have notice of this order. In the meantime, and until the further order of this Court, let the petitioner be enlarged on bail to the amount of Rs. 50. 2. It was objected that this Court had no jurisdiction to entertain the application. The order of the Court was, however, complied with, and the question of jurisdiction has since been fully argued before us. 3. The question turns upon the construction to be placed on the wording of Section 4, Clause 1 of Act XXXVII of 1855. 4. We have ascertained that the rule was issued under a mistaken belief that that Act had been repealed and was no longer in force. 5. The Act in question was repealed by the Scheduled Districts'' Act, 1874; but Section 2 of that Act says: "This Act extends in the first instance to the whole, of British India other than the territories mentioned in the first schedule hereto annexed; and it shall come into force in each of the Scheduled Districts on the issue of a notification under Section 3 relating to such district." 6. The Sonthal Pergunnahs is one of the Scheduled Districts, and it does not appear that any notification under Section 3 has been issued relating to the Sonthal Pergunnahs. The Scheduled Districts'' Act is, therefore, not in force in the Sonthal Pergunnahs, and Act XXXVII of 1855 has not, therefore, been repealed. 7. The Code of Criminal Procedure is in force in the Sonthal Pergunnahs as "in the rest of British India; but Section 1 of the Code provides that in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law now in force." 8. Section 2 of Act XXXVII of 1855 vests the administration of criminal justice in an officer or officers, to be appointed in that behalf by the Lieutenant-Governor of Bengal; and Section 4, Clause 1, provides that "all sentences in criminal cases which shall be passed by such officer or officers to the extent of the, powers which may be, from time to time, conferred upon them respectively by the Lieutenant-Governor of Bengal according to the provisions of the Act shall be final." The question is, whether the use of the word "final" in this section bars this Court from exercising its powers of revision under Chapter XXXII of the Code of Criminal Procedure. 9. We think that it has this effect, and that this Court has no revisional jurisdiction in the present case. 10. We think that a sentence can only be said to be final when it cannot be set aside or interfered with by any Court or authority, whether on appeal or otherwise. 11. Section 430 of the Code provides as follows: "Judgments and orders passed by an Appellate Court upon appeal shall be final except in the cases provided for in Section 417 and Chapter XXXII." Chapter XXXII treats of Reference and Revision. According to the use of the word in the Code itself, therefore, a final order would not be open to revision unless that power were expressly reserved. 12. In this view we are supported by the decision of a Division Bench of this Court (Mitter and Maclean, JJ.) In the matter of H.P. Boerresen, dated 30th August 1880, in which it was held that this Court had no power to interfere in its revisional jursidiction with a conviction passed by the Sub-divisional Officer of Doomka. 13. We accordingly discharge the rule. The petitioner will be required to undergo the remainder of his sentence.