Pem Mahton and another vs Emperor

Agarwala, J.—The learned Assistant Government Advocate raises a preliminary objection to the hearing of this appeal. The facts necessary to be stated are that the appellants Pem Mahton and Jitan Mahton were charged under S. 412, Penal Code, and tried jointly with one Khublal Turi who was charged under S. 395, in respect of dacoity which took place at village Mohanpur, on 20th March 1934. The three accused persons were convicted by the 1st Class Magistrate who tried them by an order dated 30th June 1934 and from these convictions they preferred appeals. At the time when these appeals were presented the appellants were in jail. The petitions of appeal were therefore presented through the Officer in change of the jail in accordance with the provisions of S. 420, Criminal P.C. The memoranda of appeal were received in this Court on 1st August 1934, and laid before the learned Judges then constituting the criminal bench on the 8th. The appeals were dismissed on the 13th. On the 5th of September, the present memorandum of appeal on behalf of two of the accused persons, namely Pem Mahton and Jitan Mahton was presented through an advocate. The office noted on the memorandum of appeal the fact of the dismissal of the appeal presented from the jail. At the time when this appeal was presented, the criminal bench consisted of the same learned Judges who had dismissed the appeals from jail. Their Lordships however on the 6th of September, directed notice to be issued and that the appeal would be heard. The contention of the learned Assistant Government Advocate is that in view of the dismissal of the appeals from jail the present appeal is incompetent. The right of appeal from the convictions in the present case is conferred by S. 408, Cl. (b), the case having been tried by a Magistrate specially empowered by S. 30, and one of the accused, namely, Khublal Turi, having been sentenced to six years'' rigorous imprisonment. S. 419 prescribes the manner in which an appeal is to be presented, viz., by a petition in writing presented by the appellant or his pleader. If the appellant is in jail, S. 420 permits him to present his petition to the Officer in charge of the jail who is required to forward it to the proper appellate Court. S. 421, empowers the appellate Court after perusal of the petition to dismiss the appeal summarily.

In the case however of an appeal presented by an appellant in person or through a pleader, the proviso to Cl. 1 of S. 421, requires that the appellant or his pleader should be afforded a reasonable opportunity of being heard in support of the appeal before it is dismissed. This proviso is expressly limited to an appeal presented by the appellant in person or through a pleader and it does not apply to an appeal presented under S. 420, through the Officer in charge of the jail in which the appellant is confined. The Code does not confer more than one right of appeal to any accused person from a conviction and sentence passed on him nor does the Code or the Letters Patent of this Court permit an appeal in a criminal matter from an order of one or more Judges of the Court to other Judges of the Court. By presenting the petition from jail the appellants preferred the appeal which was open to them and that appeal was finally disposed of by the order of the 13th of August. No other appeal lies from the convictions recorded by the trial Court or from the order of this Court dismissing the appeal presented from jail. That this appeal is incompetent is therefore quite clear from the provisions of the Code already referred to. The matter however has also been recently considered by a Division Bench of the Allahabad High Court in Emperor v. Khiali, 1922 All 480 = 68 I C 41 = 23 Cr L J 505 = 20 A L J 739 = 44 All 759. In that case two persons who had been convicted by an Additional Sessions Judge presented appeals through the Officer in charge of the jail in which they were serving their sentences. The petitions of appeal reached the High Court on 15th April 1922. They were laid before a single Judge of the Court on the 20th of April and were dismissed by him on the 21st of April.

On the 1st of May, a petition of appeal was presented through counsel. The Office reported that the appellants had already presented an appeal from jail which had been dismissed. Counsel then presented another petition on the 8th of May. The learned Judge before whom this petition was laid, directed it to be laid before a Bench of two Judges for consideration. Eventually it came before the learned Chief Justice and Piggott, J. Their Lordships distinguished an earlier decision in Emperor v. Bhawani Dihal, (1906) A W N 303 = 3 A L J 693 = 4 Cr L J 373 in which a petition of appeal was presented to the Sessions Court through Counsel while another petition by the same appellants presented from jail was already pending disposal in the Sessions Court. The Sessions Judge, overlooking the fact that an appeal had been presented through counsel dismissed the appeal from jail summarily and then proceeded to dismiss the appeal presented through counsel without affording him an opportunity of appearing in support of it. The High Court held that this procedure was illegal and, having set aside the order of the Sessions Judge dismissing the appeal directed him to readmit it and to dispose of it according to law after hearing counsel. In the latter case the learned Chief Justice and Piggott, J. observed:

The point of that decision obviously is that when once a petition of appeal has been filed through counsel under S. 419, Criminal P.C., it is improper to dismiss the appeal summarily at all and an order summarily dismissing an appeal while there is a petition presented through counsel pending and undisposed of on the file of the Court, would be nonetheless an improper order because it happened that another petition of appeal in the same matter from the same convict bad been received through the Superintendent of the jail.

With regard to the case with which they were themselves dealing their Lordships said:

In the case now before us, the order summarily dismissing the petitions of appeal presented on behalf of Khiali and Hulasi through the Superintendent of the jail in which they were confined was a valid and proper order, there being on the file of this Court on that day no petition of appeal other than the two petitions received through the Superintendent of the jail. The right of appeal allowed to Khiali and Hulasi against their conviction by the Sessions Judge and sentences passed upon them has, therefore, been fully exercised according to law and their appeals have been disposed of by a proper and valid order of this Court, before the petition of appeal with which we are now dealing was ever presented to the Court at all.

Their Lordships dissented from the decision of Lindsay, J., sitting as Judicial Commissioner of Oudh in Hulai v. Emperor, 1916 Oudh 85 = 36 I C 133 = 17 Cr L J 453. In a later case Emperor v. Mewa Ram, 1926 All 178 = 90 I C 917 = 26 Cr L J 1621 = 48 All 208 = 23 A L J 1051, the Sessions Judge, in ignorance of the fact that a convict had already preferred an appeal through a mukhtar, rejected the appeal which he subsequently preferred from jail while the appeal presented through the Mukhtar was still pending disposal. On discovering that the latter appeal was still pending the Sessions Judge referred the case to the High Court to ascertain whether he had power to set aside his own order dismissing the appeal. Daniels, J., held that the Sessions Judge had no power but that the High Court in the exercise of its revisional jurisdiction had power to set aside the order dismissing the appeal presented from jail. This was accordingly done and the Sessions Judge was directed to re-hear the appeal. In this Court the power of a criminal Court to review its own order has been negatived in Lachmi Singh v. Bhusi Singh, 1917 Pat 110 = 43 I C 817 = 19 Cr L J 225 and Gaja Chaudhury v. Debi Chaudhury, 1923 Pat 532 = 72 I C 945 = 24 Cr L J 481.

In Kunhammad Haji v. Emperor, 1923 Mad 426 = 72 I C 599 = 24 Cr L J 439 = 46 Mad 382 = 44 M L J 450, the facts were that the convicted persons preferred an appeal from jail to the vacation Judge of the High Court, which was dismissed on 2nd June 1922. On the reopening of the Court after the vacation on 17th July 1922, another petition of appeal in the same case was presented through counsel. It was conceded by counsel for the appellant that unless some ground could be found for disregarding the decision of the 2nd of June, the appeal presented by him could not be entertained on the merits. The High Court however was asked to treat the memorandum of appeal as an application for revision of the order of the 2nd of June or as an application for review of that order. Their Lordships held that the High Court had no power to revise the judgment of one or more of the Judges of the Court. With regard to the second point viz., that the memorandum of appeal should be treated as an application for review it was argued that the subsequent appeal was as a matter of fact admitted by the same learned Judge who in the vacation had dismissed the appeal from jail and it was contended that this amounted to the setting aside by that learned Judge of his previous order and reopening of the case on its merit''s. It appeared that the learned Judge who admitted the subsequent appeal was not conscious of the fact that he had previously dismissed an appeal from jail by the same appellant. Oldfield and Devadoss, JJ. decided that the High Court had no power to review the first Judge''s order dismissing the appeal from jail. In Nand Kishore Lal v. Emperor, 1919 Pat 514 = 51 I C 271 = 20 Cr L J 447, Coutts, J. in this Court held that the High Court has no power to review its own judgment pronounced in criminal revision, but in Assistant Government Advocate v. Upendra Nath Mukerji, 1931 Pat 81 = 1931 Cr C 201 = 130 I C 538 = 32 Cr L J 551 = 11 P L T 892, Dhavle, J., reviewed an exparte interlocutory order passed by himself in Chambers. In Kuldip Das v. Emperor, 1933 Pat 38 = 1933 Cr C 54 = 141 I C 154 = 34 Cr L J 118 = 11 Pat 697, the Bench to which an appeal was presented recorded the following order:

This appeal is dismissed except as to the question of sentence on which only it will be heard.

It was subsequently held by the same Division Bench that it was not open to the same or another Bench to go behind the order of dismissal. In a later case, In re Tadi Somu Naidu, 1924 Mad 640 = 84 I C 850 = 26 Cr L J 370 = 46 M L J 456 = 47 Mad 428, two persons who had been convicted of forgery and whose convictions and sentences had been confirmed by the Sessions Judge on appeal applied to the High Court in revision to set aside the convictions and sentences on the ground that the Magistrate by whom they had been passed had no jurisdiction to try the case. The application was admitted by Devadoss, J., and came up for hearing before Krishnan, J., on 27th September 1923. One of the applicants appeared through a vakil who stated that he had no instructions and the other applicant did not appear at all in person or by a pleader. Krishnan. J., confirmed the convictions and enhanced the sentences. Later on the 25th of October, Krishnan J. vacated his previous order apparently on the ground that the applicants had had no opportunity of showing cause against enhancement of their sentences and therefore that his order of the 27th of September was without jurisdiction. The learned Judge accordingly directed the case to be reheard on the question of enhancement. The case came up before Waller, J., who directed it to be laid before a Division Bench. It then came before Odgers and Wallace JJ., when the Public Prosecutor argued that Krishnan, J., had no power to vacate his order of the 27th of September. Their Lordships observed that:

The judgment of the High Court in a criminal matter as soon as it is signed, is final and the Court becomes functus officio as soon as that is done and thereafter there is no power to revise or alter that decision.

But their Lordships went on to hold that an order to the prejudice of an accused passed without affording him an opportunity of being heard as, for instance, as happened in the case before their Lordships, where a case was by mistake posted on the list on a day anterior to that fixed in the notice to the accused, is null and void ab initio as being one passed without jurisdiction. Their Lordships stated at p. 434 of the report:

We are in no way reviewing or revising any order of Krishnan, J. but simply deciding that there was no previous valid adjudication to bar a hearing on the merits.

In the case before us at present, the order of the Bench dismissing the appeal from jail on 13th August 1934, was proper and valid in law and cannot be treated as a nullity. A suggestion was made that the subsequent order of the same Bench admitting the present appeal when presented through an advocate on the 6th of September should be regarded as an order reviewing the order of dismissal. I am not prepared to hold that the Bench which admitted the appeal on the 6th of September intended to assume a jurisdiction which it did not possess. The view I take of that order is that it admitted the appeal subject to any objection which might be taken to its hearing. It is not necessary in the present case to go as far as Lort-Williams and McNair, JJ., in the recent case reported in Dahu Raut and Others Vs. Emperor, , where their Lordships held dissenting from In re Tadi Somu Naidu, 1924 Mad 640 = 84 I C 850 = 26 Cr L J 370 = 46 M L J 456 = 47 Mad 428 and the decision of their own Court in Ramesh Pada Mandal Vs. Kadambini Dasi, that

A criminal Bench of the High Court, when it has signed its judgment, has no power to alter or review it, even if it may be without jurisdiction, except to correct a clerical error.

In my view therefore this Court has no power to entertain an appeal from the conviction and sentence passed on the appellants after the dismissal of the appeal which they preferred from jail and neither this Bench nor the Bench which admitted the appeal has power to review or revise the order of dismissal. The appeal must therefore be dismissed.

Varma, J.

I agree.