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PETITIONER: SANKATHA SINGH

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT: 25/01/1962

BENCH: DAYAL, RAGHUBAR BENCH: DAYAL, RAGHUBAR DAS, S.K. SUBBARAO, K.

CITATION:  1962 AIR 1208            1962 SCR  Supl. (2) 817  CITATOR INFO :  RF         1971 SC1606  (22)  RF         1979 SC  87  (20)  R          1981 SC 736  (5)

ACT:      Criminal Procedure-Appellate Court’s power to re-hear appeal  after having dismissed it earlier- Code of  Criminal Procedure, 1898 (Act V of 1898), ss.367, 369, 424.

HEADNOTE:      The  question  for  decision  was  whether  a criminal  appellate  court  could  order  the  re- hearing  of   an  appeal   which  it  had  earlier dismissed, when  neither the  appellants nor their counsel appeared,  holding that it had perused the record  of   the  case   and  saw  no  reason  for interference with the trial court’s order. ^      Held, that  the appellate court’s omission to write a  detailed judgment in a criminal appeal in which  neither   the  appellant  nor  his  counsel appeared might  not  be  in  compliance  with  the provisions  of  s.367  of  the  Code  of  Criminal Procedure and might be liable to be set aside by a superior court,  but  will  not  give  that  court itself power  to set  it  aside  and  re-hear  the appeal.      At the re-hearing of the appeal the successor of the  appellate court was competent to consider, on an  objection being  raised by the other party, whether the  appeal was  validly  up  for  hearing before him.      Section 369  read with  s. 424 of the Code of Criminal  Procedure   specifically  prohibits  the altering or reviewing of its order by a court.      Inherent  powers   of  the  court  cannot  be exercised  to   do  what   the  Code  specifically prohibits the court from doing.

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JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION  :  Criminal Appeal No. 145 of 1959.      Appeal by special leave from the judgment and order dated  March 19,1959,  of the Allahabad High Court in Criminal Revision No. 1299 of 1957.      S. P.  Sinha and  P.  C.  Agarwala,  for  the appellant.      G.  C.   Mathur  and   C.  P.  Lal,  for  the respondent.      1962. January  25. The  Judgment of the Court was delivered by 818      RAGHUBAR DAYAL,  J.-Sankatha Singh and others appeal against  the order  of the  Allahabad  High Court dismissing their application for revision of the order of the Sessions Judge, Gyanp ur, holding the order  of his predecessor for the rehearing of an appeal  which had  been dismissed earlier to be ultra vires and without jurisdiction and directing the Magistrate  to take immediate steps to execute the order passed by it, according to law.      The  appellants   were   convicted   by   the Magistrate, I  Class, Gyanpur,  of offences  under ss. 452  and 323 read with s.34, I.P.C. Kharpattu, one of  the appellants,  was also  convicted of an offence under s. 324, I.P.C. They appealed against their conviction. The appeal was fixed for hearing on November  30, 1956.  On that  date, neither the appellants nor their counsel appeared in Court and the learned  Sessions Judge  dismissed the appeal. The relevant portion of his order is:           "The appellants  have been  absent,  and      their learned  counsel has  also not appeared      to  argue   the  appeal   on  behalf  of  the      appellants. I  have perused  the judgment  of      the learned Magistrate and seen the record. I      find no  ground  for  any  interference.  The      appeal is accordingly dismissed."      On December  17,  1956,  an  application  was presented by  the appellants praying that the case be restored to its original number so that justice be done  to them. In explaining their absence from Court on  the date  of hearing,  it was  said that they reached  the Court  somewhat late  due to the Ekka, by  which they were travelling, over-turning accidentally on  the way  and, as  a result, their getting injuries. This application was allowed, on July 2,  1957, by  the learned Sessions Judge, Sri Tej Pal  Singh, who  had dismissed the appeal. His reasons for  allowing the application appear, from his order, 819 to  be  that  the  application,  supported  by  an affidavit, showed  that there was sufficient cause for the  non-appearance of  the appellants-accused at the  time of the hearing of the appeal, that s. 423 of the Code of Criminal Procedure (hereinafter called the  Code) enjoined  the appellate Court to dispose of  the appeal on merits after hearing the appellant  or   his   pleader   and   the   Public Prosecutor, that  no notice was ever issued to the appellants as required by s. 422 of the Code, that s. 367  of the  Code laid  down  what  a  judgment

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should contain  and that  his judgment of November 30, 1956,  amounted to  no judgment  as it did not contain some  of those  salient points,  that  the judgment was  without jurisdiction as the case was not really  considered and no independent judgment was arrived  at and that it was necessary that the appeal be re-heard in the ends of justice.      Sri Tripathi, who succeeded Sri Tej Pal Singh as Sessions  Judge, and before whom the appeal was put up for re-hearing, was of the opinion that the appellate Court  had no power to review or restore an appeal  which had  been disposed  of  and  that therefore the  order of his predecessor dated July 2,  1957,  was  ultra  vires  and  passed  without jurisdiction.      Against this  order, the  appellants went  in revision to  the High  Court. The learned Judge of the High  Court  agreed  with  the  views  of  Sri Tripathi and  accordingly, dismissed  the revision application.      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 the re- hearing of  the appeal.  We are of opinion that he could not  do so and that therefore the view taken by the High Court is correct. 820      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. Sri  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 s. 424, of the Code, makes it clear  that the appellate Court is not to alter or review the judgment once signed, except for the purpose of correcting a clerical error.      Sri Tej  Pal  Singh  was  in  error  when  he thought that  s. 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  pleaders. 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

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precedent for  the hearing  of the appeal, in view of s.  422 of  the Code, Sri Tej Pal Singh states, in his order dated July 2, 1957: 821           "It will also appear that the conditions      of s.422,  Cr. P. C. were also not fulfilled,      as  no   notice  was   ever  issued   to  the      appellant." He again  missed noticing  that a  notice  of  the hearing of  the appeal  has to  be given either to the appellant  or to  his pleader  and need not be given to  both. He  does not say in his order that no notice of the date of hearing had been given to the appellants’ counsel. The practice, usually, is to give  notice of  the date  of  hearing  of  the appeal to  the counsel  who informs the appellant, and  not   to  the   appellant   personally.   The application for  restoration  indicates  that  the appellant knew of the date of hearing.      It has been urged for the appellants that Sri Tej Pal  Sigh could  order the  re-hearing of  the appeal in  the exercise  of  the  inherent  powers which every  Court possesses  in order  to further the ends  of justice and that Sri Tripathi was not justified in  any case to sit in judgment over the order of Sri Tej Pal Singh, an order passed within jurisdiction,  even   though  it   be   erroneous. Assuming that  Sri  Tej  Pal  Singh,  as  Sessions Judge, could  exercise inherent  powers, we are of opinion that  he could  not pass  the order of the re-hearing of  the appeal  in the exercise of such powers when s. 369, read with s. 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  Code  specifically prohibits the  Court from  doing. Sri Tripathi was competent to  consider when the other party raised the objection  whether the  appeal was  validly up for  re-hearing  before  him.  He  considered  the question and decided it rightly.      It is  also urged for the appellants that Sri Tej Pal  Singh, had the jurisdiction to pas orders on the  application presented by the appellants on December 17,1956,  praying for  the re-hearing  of the appeal and that therefore his order could not 822 be  said   to   have   been   absolutely   without jurisdiction. We  do not  agree. He  certainly had jurisdiction  to   dispose  of   the   application presented to  him, but  when s.  369, of  the Code definitely prohibited  the  Court’s  reviewing  or altering its  judgment, he  had no jurisdiction to consider the  point raised  and to  set aside  the order dismissing  the appeal  and  order  its  re- hearing.      We therefore  see no force in this appeal and accordingly dismiss it.                                  Appeal dismissed.