Ram Chander vs State of H.P.

Bhawani Singh, J.—This, Criminal Miscellaneous Petition (Main), has been preferred by the Petitioner u/s 482 of Code of Criminal Procedure (hereafter shortly the Code) for re-calling the judgment passed by me on 2nd May, 1989. It arises in the following circumstances.

The Petitioner is a Driver with the Agriculture Department. On 17-8-1985, while driving Bus HIL-5266 in a rash and negligent manner, collided with Jeep HIM-2765 and Jeep No. HIS-4806. This accident took place near the Victory Tunnel on Cart Road, Shimla and caused injuries to Padam Singh, Drivei of one of the jeeps and Shri Rup Singh Dogra Chief Engineer, H.P. State Electricity Board, Shimla. Police came to the spot on receiving the report of this accident and the accused was taken to the Hospital for examination. It was found that he had taken Alcohal. After investigation the accused was challaned for offences like 379/337 Inian Penal Code and Section 117 and 3/112 of the Motor Vehicles Act. The trial ended in the acquittal of the accused and this decision of the trial Judge was challenged by the State through Criminal Appeal No. 43 of 1986. The appeal was admitted on 29-4-1986 and the Petitioner was summoned through bailable warrants in the sum of Rs 2000/-. He did not engage any counsel and at a subequent stage, actual date notice was issued for his appearance in the Court but it was received un-delivered. However, the Registry found it to be a complete service, for reasons to be recorded hereafter, and the appeal was heard and by judgment of 2nd May, 1989, the State appeal was allowed and the Petitioner was convicted and sentenced to fine for all the offences, in question. The Petitioner submits that he came to know of this decision on 18th June, 1989 when he was called to the Court of Judicial Magistrate, 1st Class (2) Shimla. Thereafter he moved this petition in this Court. His case is that the Court notice of actual hearing was not served on him as required under the High Court Rules and Orders nor he came to know about the date fixed for hearing of the appeal. He was posted at Shimla but the service of summon was attempted at his Home address. Therefore, he has been condemned un-heard and the principles of natural justice stand violated. According to him, it is a fit case where the judgment should ere-viewed in the interest of justice.

M.S. Gularia, learned Assistant Advocate General raised preliminary objection as to the maintainability of this petition u/s 482 of the Code of Criminal Procedure. It was submitted that this kind of petition is not maintainable since the object and scope of this petition amounts to review of decision rendered on merits by this Court. This kind of power of review is not available to this Court and inherent powers envisaged u/s 482 of the Code are not meant to be exercised where there is a specific statutory bar in the Code. Reference was made to Section 362 of the Code which is reproduced as under:

Court not to alter judgment:-Save as otherwise provided by this Code or by any other law for the time being inforce, 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.

On the other hand S.S. Kanwar, counsel for the Petitioner laid great emphasis on Section 482 of the Code to submit that the provisions of the Code are vide enough to empower this Court to review the judgment rendered without hearing the petit)oners. In order to support his contention, reliance was placed on number of decisions. In Shyam Sunder Vs. State of Rajasthan, the Court did not consider the provisions of Section 362 and 482 of the Code of Criminal Procedure since none of the parties to the case appear to have convassed it and the power of the High Court to review its decision u/s 482 of the Code was not considered since it appears from the facts of this case that no such petition for review was ever made before the High Court. In 1975 CLJ 820 (Bombay Cycle & Motor Agency Ltd. v. Bhagwan Parshad Ram Raghubir Pandey and Ors.) the Magistrate passed the order of confiscation of a vehicle u/s 99 Bombay Prohibition Act without hearing the owner ther. This order was confirmed by the High Court in the revision also, however, the case was re-heard after allowing the prayer of the Petitioner u/s 361-A of the Code corresponding to 482 of the new Code. With great respect, I do not subscribe to this view of the learned Judge in view of the express statutory bar contained in Section 362. of the Code and other decisions of the appex Court, being referred in the later part of the Judgment. Similarly no assistance can be taken from Anwar Hussain Vs. State of Uttar Pradesh and Another, . The Court was not called upon to decide the provisions of the Code in issue in the present case. In AIR 1987 SC 1500 (Ram Naresh Yadav and Ors. v. State of Bihar), the apex Court ruled that in criminal matters convicts must be heard before matters are decided on merits. The present case was heard when it was reported by the Court Registry that the service was complete and there was no other way but to take up the case for hearing and decision. Now when once it is decided, the question for consideration as to whether this Court has power to review the decision or not and on this principle no assistance can be derived from this decision of the Supreme Court. In 1985 CLJ 23 (Deepak Thanwar Das Balwani v. State of Maharashtra and Anr. the learned single Judge followed the Division Bench of the same Court, namely, Bombay Cycle and Motor Agency Ltd. (Supra) and held that u/s 482, of the Code, the High Court can review its judgment and distinguished the decision of the Supreme Court In State of Orissa Vs. Ram Chander Agarwala and Others, on facts.

On the other hand, Id. counsel for the State placed reliance on Sankatha Singh Vs. State of U.P., , the Court held that an appellate Court has no power to review or restore an appeal which has been disposed of. It is pertinent to quote paras 6, 7 and 8 of this Judgment, which read as under:

(6) 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 re-hearing of the appeal. We are of the opinion that he could not do so and that therefore the view taken by the High Court is correct.

(7) 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. Shri 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 424, of the Code, makes it clear that the appellate Court is not to alter or review the judgment once signed, except for the puipose of correcting a clerical error.

(8) Sri Tej Pal Singh was in error when he thought that Section 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 pleader.'' 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 Section 422 of the Code, Sri Tej Pal Singh states, in his order dated July 2, 1957:

It will also appear that the conditions of Section 422, Code of Criminal Procedure were also not fulfilled, as no notice was ever issued to the Appellant.

Further in para 9 of the judgment the Court stated " Assuming that Shri Tej Pal Singh, as Sessions Judge could exercise inherent power, we are of the opinion that he could not pass the order of re-hearing of the appeal in exercise of such powers, when Section 369 read with Section 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 Court specifically prohibits the Court from doing "This proposition was considered by the Court again in Ram Chander Aggarwal''s case (supra) and it was held that:

once a judgment has been pronounced by High Court either in exercise of its appellate or its revisional jurisdiction, no review or revision can be entertained against that judgment as there is no provision in the Code of Criminal Procedure which would enable the High Court to review the same or to exercise revisional jurisdiction.

Finally, the Court stated that:

the provisions of Section 56-A of the Code cannot be invoked for exercise of a power which is specifically prohibited by the Code.

For arriving at this conclusion, the Court followed its earlier order in U.J.S. Chopra Vs. State of Bombay,

The latest decision on which reliance was placed by the State counsel is Mostt. Simrikhia v. Smt. Dolley Mukherjee and Anr. 1990 (2) Crimes 271, wherein the leamed Judges of the Supreme Court held in para 7, that:

The inherent jurisdiction of the High Court cannot be invoked to override bar of review u/s 362. It is clearly stated in Sooraj Devi v. Pyare Lal, that the inherent power of the Court cannot be exercised for doing that which is specifically prohibited by the Code. The law is therefore clear that the inherent power cannot be exercised for doing that which cannot be done on account of the bar under other provisions of the Code. The Court is not empowered to review its own decision under the purported exercise of inherent power. He finds that the impugned order in this case is in effect one reviewing the earlier order on a reconsideration of the same materials. The High Court has grievously erred in doing so. Even on merits, we do not find any compelling reason to quash the proceedings at that stage.

In view of the legal position, the present petition u/s 482 of the Code is not maintainable. Moreover, the matter was decided on merits after the same was certified by the Registry in terms of the High Court Rules and orders Volume V, Chapter III-A which provision is as under:

Parties and their Advocates are required to attend the Court on the day or days for which the incases are set down and on subsequent days until their cases are ''disposed'' of or are postponed.

Provided that intimation of the pica date fixed in a case will be sent by registered post card (A.D.) to such parties as are not represented by counsel. Such postcard shall be sent to an address to be given by the party in response to the original notice of appeal calling upon him to furnish an address for service for the purpose of the appeal, or if he fails to give such address within one month of the service of such notice of appeal, to his address as given by the Appellant in the memorandum of appeal. The posting of such postcard shall be deemed to be sufficient intimation to the party of the date fixed in the case.

Provided further that in a case in which an Advocate not ordinarily resident in Chandigarh has to appear, the Deputy Registrar may fix an "actual date" if such Advocate puts in a written request for that date to which he him self has obtained the consent of other counsel in the case. Such date shall not be altered except by any order of the Bench concerned, or the first Division Motion Bench if the case is not listed before a particular Bench.

This provision came for consideration before the High Court of Punjab & Harvana in Pritam Singh Chima v. State of Punjab (1984 PLR 648) and it is relevant to quote paras 4 and 5 of this Judgment;

The learned Counsel for the applicants has argued that the applicants were not represented by a counsel and it was obligatory for the Registry to issue actual date notice to them in terms of Rule 8 of Chapter 3-A of High Court Rules and Orders, Volume V. No such notice was issued to the applicants. The order passed on May 9, 1983, in the absence of the applicants is liable to be reviewed and re-called. The contention is without merit.

It is incorrect that Gursharanjit Singh and G.S. Boparai (Respondents Nos. 3 and 6) were not represented by a lawyer. They were represented by Mr. S.L. Chowla. The Registry has reported that the remaining applicants were sent A.D. post cards on July 28, 1982. It is specifically provided in Rule 8 of the Chapter 3-A of High Court Rules and Orders, Volume V, that the posting of such postcards shall be deemed to be sufficient intimation to the party of the date fixed in the case. The compliance of Rule 8 of Chapter 3-A of the High Court Rules and Orders, Volume V, having been made by the Registry, the applicants cannot justifiably seek the review of the order dated May 9, 1983.

In view of the aforesaid discussion, it is held that the case of the Petitioner was heard after notice to him was issued in accordance with the provisions of High Court Rules and Orders and he cannot make any grievance of the violation of the principles of natural justice and the present petition is not maintainable in view of the specific bar contained in Section 362 the Code and the same is accordingly dismissed.