Ravinder Sharma vs State of Jammu and Kashmir

B.A. Khan, J.—Revision petition No. 24/94 was dismissed by me on merits vide judgment dt. 8-3-1995. Petitioner who had challenged the

closure of his evidence was not present on that date. He has now filed this Cr. MP praying for re-hearing of the revision petition on the ground that

he had been denied an opportunity of being heard in violation of principles of natural justice. His plea is that his counsel could not appear on 8-3-

95 due to some unavoidable circumstances and that a re-hearing in a Criminal revision was permissible u/s 439(2) Cr. P.C. His counsel Mr. Sethi

has also sought support from a judgment of this Court reported in Prem Singh Vs. State and Another, and a judgment of the Supreme Court

reported in Savita Kumari (Ms) Vs. Union of India (UOI) and Another, . The main point to be determined is whether it is open to the High Court

to re-hear a criminal revision decided on merits one way or the other. Since petitioner has placed reliance on Section 439 Cr.P.C., it would be

profitable to extract the relevant Section and to examine whether it permits re-hearing in a decided criminal revision:

A perusal of the provision shows that this Section empowers the High Court to exercise the powers of an Appellate Court u/s 423 426 427 428

338 and enhance the sentence.

Sub-Section 2 of this Section provides that :

No order u/s 1 shall be made to the prejudice of the accused unless he had an opportunity of being heard either personally or by pleader in his

own defence.

Mr. Sethi relied on this provision and his reliance appears to be grossly mis-placed on the face of it. This is so because sub-section (2) of

Section 439 provides a safeguard of giving an opportunity of being heard to the accused in cases where the enhancement of sentence is involved in

exercise of the powers u/s 439-1. The present case is not surely covered by this provision at all. Because, in the present case, the Trial Court had

closed the petitioner's defence evidence as he had approached the Court three years after the closure of such evidence u/s 540 Cr.P.C. Therefore,

it cannot be said or held that petitioner who was absent before the Court on the date his criminal revision was decided, was in any way prejudiced

by the decision in the revision petition on merits in which this Court in exercise of revision jurisdiction, had only to ascertain and examine whether

any illegality or impropriety had been committed by the Trial Court in closing his defence evidence. The other aspect of the matter is that there is no

review permissible in criminal proceedings and Section 369 operates as a clear bar for the Court against altering a judgment once it had been

signed except to correct a clerical error. As such, in case, re-hearing is granted in criminal matters after the judgment has been rendered,

pronounced and signed, it would not only violate the bar imposed by Section 369 but also erode the finality and sanctity of the judgment.

Mr. Sethi's reliance on the Full Bench judgment of this Court reported in Prem Singh Vs. State and Another, is also wide off the mark. Because

this judgment deals with a very peculiar situation to permit re-hearing where a Trial Court's order which is found to be a nullity, is confirmed by the

High Court. The rationale and the reason is that a trial Court judgment which is a nullity, can render the confirmation of judgment by the High Court

also a nullity and that's why, a re-hearing is permitted in such cases by a judicial precedent. The present case cannot be said to be belonging to this

genre because it is nobody's case that the closure of the evidence by the Trial Court was an order which was a nullity in the eyes of law. Therefore,

the principle laid-down in this judgment cannot be applied to the present case,

As regards Supreme Court's judgment which makes a reference to an application for review in a murder trial, this power is exercised by the

Supreme Court as the Court of the final resort. But this cannot be cited as a precedent where the State Cr. P.C. imposes a specific bar against

review in a criminal case and where the aggrieved party has a remedy to file an appropriate proceeding before a superior Court.

In the result, 1 find no inept in this CMP which is dismissed.