Surjeet Kumar vs State of J & K

This review petition has arisen out of an order to have been passed by this Court on 27101992, whereby the criminal revision petition, preferred

by the petitioner Surjeet Kumar against the order of his conviction and sentence passed by the trial Magistrate 1st. Class Hiranagar and

subsequently confirmed by the learned Sessions Judge, Kathua by his order dated 3041985, was dismissed holding that no cogent or reasonable

ground was put forward by the petitioner for interference by this court for any of the reasons, either on the basis of law or on the merits of the

case. The aforesaid order was passed by this Court when nobody appeared for the petitioner and the Staterespondent was represented by the

Addl. Advocate General, Mr. R. C. Gandhi.

The review of the aforesaid order dated 27101992 is sought on the ground that the same has been made in absence of the petitioner and thereby

great injustice has been done to him by the order passed by the this Court, which is clearly against the principles of natural justice, as no

opportunity has been provided to him to clarify the stand taken in his defence, and show that the proper trial has not taken place in the case.

After issuing notice to other side, Mr. A. Kapoor, appeared for the respondent and he did not file any objection but addressed the argument in the

matter.

Heard learned counsel for the parties; also bestowed my thoughtful consideration over the record on the file.

At the outset it can be said that the power of review is unknown to the Criminal Procedure Code and on a thorough analysis of the judicial

precedents laid down in the Country, it is discovered that on the question whether under section 561 A Criminal Procedure Code, the High Court

has the power to revoke, review or recall its order in a criminal case, the judicial opinion is divided in the country. Some of the High Courts have

held that such a power lies with the High Court, but some of the High Courts have expressed a contrary view The matter which emerges for the

decision of this Court is as to whether this court has the power to revoke, review or recall its own decision in a criminal revision, and rehear the

case in respect of a decision announced previously by this Court. Such a question has been dealt with at length in a full Bench judgment of this

Court reported in K.L.J. (U82) 55: titled : Prem Singh vs. State and another, wherein it has been shown as to in what circumstances this Court has

the power to review, revoke or alter its previous order and it has been held that when it is found that the order passed by the trial court is a nullity,

then the Appellate Court or the Revisional Court, as the case my be, has the power to proceed to hear the cast, as if the order already passed by it

did not exist and Section 369 of the Criminal Procedure Code, would not stand in its way. It is material to make mention of Section 36'of the

Criminal Procedure Code, 1898, which is applicable in rest of the Country, and reads as under :

Save as otherwise provided by this Code or by any other law for the time being in force, or, in the case of a High Court by the Letters Patent or

other instrument constituting such High Court no court when it has signed its judgment shall alter or review the same, except to correct a clerical

error.

The Code of Criminal Procedure 1898, does not apply to our State The State has its own Code called ""The Code of Criminal Procedure, 1989"".

Under the said Code, Section 369, provides :

Save as otherwise provided in this Code or by any other law for the time being in force, or, in the case of the High Court, by the constitution of

High Court, no court, when it has signed its judgment shall alter, or review the same, except to correct a clerical error.

The languages of both the aforesaid Sections are different and the Supreme Court, with regard to application of the aforesaid Section, has held that

where ever such Code applies the High Court is not empowered to alter or review its own judgment passed in exercise of the criminal jurisdiction.

No doubt, the language employed in our Code of Criminal Procedure 1989 and in Section 369 of the Code of Criminal Procedure 1898

applicable to rest of the Country, is not the same, but reading of both these sections would show that the effect of either section is the same. It thus

envisages that our High Court, like other High Courts in the Country, has no power given to It by the Instrument constituting it, to alter or review a

judgment passed in exercise of the criminal jurisdiction because our High Court is the creature of the Constitution of Jammu and Kashmir, and

there is nothing in the said Constitution on to show that the High Court has the power to alter or review its own judgment passed in a criminal

revision petition.

In the Full Bench ruling, mentioned hereinabove all such points have been covered and it has been authoritively held that once a judgment of the

lower court is found a nullity in law and the trial court in that consequence will be deemed to be nonexistent and thereupon it necessarily follows

that there was not order which the Appellate Court or the Revisional Court would confirm or set aside.

In the case on hand, the petitioner, on proper trial, has been convicted and sentenced under the provisions of Penal Code after a full trial within the

parameters of the procedure, has taken place against him. The petitioner challenged the order of his conviction and sentence before the Appellant

Court and the learned Sessions Judge Katbua while discussing facts and merits of the case, confirmed the conviction and sentence, after properly

sifting the evidence recorded in the case.

On revision this Court, although the petitioner was not present in person, has considered all the aspects of the case and found that there was no

need for interference with the judgment of the trial court or the Appellate Court on the basis of the merit or the law involved in the matter. The

argument advanced by Mr. Sethi, counsel for the petitioner that the petitioner was not represented by Mr. J.P. Singh, on the date revision petition

was dismissed, is nullified by the order passed by this court on 551992, which vividly shows that Mr. J.P. Singh, learned counsel for the petitioner

was present in the court as the petitioner was absent, there fore, it was ordered that the petitioner be summoned through bailable warrants in the

amount of Rs. 5000/ and case listed after the petitioner was served, before any available Bench. Thereafter, the petitioner in person had appeared

in the Registry on 2771992 and the bail bonds furnished by him were accepted by the Deputy Registrar, High Court, Jammu. It is thus clear that

the petitioner was fully aware about the fixation of his case for a hearing and even then he chose to remain absent.

There is no proof available on the record of the file that Mr. Sunil Sethi was representing the petitioner on the date revision petition was dismissed

and before that he had filed his vakalatnama with the Registry.

On perusal of the record of the file, it is found that Mr. Sunil Sethi got engaged on 21121992, by the petitioner, after which the present Review

Petition was moved on 23121992 before this Court. So factually it is found incorrect that the petitioner was that represented by Mr. J.P. Singh on

the date when the order under review was passed on 27101992.

During argument the main thrust was laid by Mr. Sethi on the fact that the petitioner at the time of commission of crime, was a child of 15 years age

and the trial, in that event, conducted by the trial Magistrate, having no jurisdiction, gets vitiated and it was submitted that this plea raised before the

learned Sessions Judge, Kathua, has not been taken into consideration by him nor it was taken into consideration by this court, while passing order

under review on 27101992.

In this regard, after the case was reserved for orders, the Registry was directed to send for the original file of the trial Magistrate. After perusing

the file, it was found that the petitioner was 18 years old as per his own showing at the time of commission of the offence and such fact is borne out

from the statement of the accused recorded under Section 242 Cr. PC., where the age given by the accused/petitioner was shown as 18 years.

The other argument advanced by Mr. Sethi that the statement of the accused/petitioner was not recorded under Section 342 Cr. P.C, is belid from

the very fact that a comprehensive statement under Section 342 Criminal Procedure Code of the accused/petitioner has been recorded by the trial

Magistrate. Thus the argument in this behalf advanced by the learned counsel for the petitioner is factually incorrect.

The order of conviction and sentence passed by the trial Magistrate is in accordance with law and, in no manner, can it be found to be a nullity,

Hence, this Review petition being without any substance fails and is dismissed and the stay order granted earlier is vacated. The trial court be

informed immediately about the same.